Emma Nunn v G and MJ Crouch and Son Ltd (t/a Crouch Recovery)

This is an appeal by Ms Nunn, the claimant below, against the judgment of the employment tribunal sitting in Leicester (EJ Broughton and members) sent out on 5 December 2023. The judgment followed an 11 day final hearing which came after at least five preliminary hearings. It runs to 249 pages of close type and includes detailed findings concerning events from February 2020 to June 2021. Apart from one allegation of sex discrimination arising from events on 8 April 2021, all Ms Nunn’s complaints, including those of sexual harassment, harassment related to sex, whistleblowing and unfair dismissal were rejected by the ET.

The appeal relates to certain complaints of sexual harassment which I describe below. It was allowed through to a full hearing on three grounds by Bruce Carr KC on 31 October 2024 on a rule 3(10) hearing following my own rejection of it on the sift. I of course approach the matter with an open mind having full regard to all the material now before me, including the arguments made by counsel on both sides. I should record that Ms Nunn was represented by Mr Levay pro bono and that the tribunal is very grateful for his assistance. The respondent was represented as below by Mr Dennis.

The respondent was a family company which provided vehicle recovery services. At the relevant time it was run by Adam Crouch. His father David had resigned in 2015 but continued to have some involvement. Ms Nunn was a long-standing friend of the family and she and Adam liked and respected each other. She was employed by the company from May 2018 and was the accounts manager from March 2019. She did not have a formal contract of employment. The parties started to fall out in April 2021 and the claimant resigned on 5 May 2021 alleging that she had been constructively dismissed. She brought proceedings in the employment tribunal on 27 May 2021.

In the proceeding Ms Nunn raised numerous allegations of harassment. They included the following complaints of sexual harassment on which this appeal has focused:

The ET made a number of findings of fact which were plainly of general relevance although some appear in the reasons in the context of considering individual complaints.

Section 26 of the Equality Act 2010 contains the relevant law. In relation to sexual harassment it provides:

As the EAT (Langstaff P and members) observed in the case of Weeks v Newham College of Further Education [2012] WL 2191433 at para 20:

Ground 1 relates specifically to the incident on 13 March 2020 which the tribunal deal with at paras 150-161 and 961-965 of the reasons. Although the tribunal found that the communications by Adam Crouch to Ms Nunn were (objectively speaking) “vulgar, offensive and grossly inappropriate for the workplace” (and they clearly involved sexually explicit content), the ET nevertheless found that, while they may have surprised or even shocked her, they were not “unwanted” by Ms Nunn, Adam did not have the proscribed purpose, and she did not perceive the conduct to have the proscribed effect.

Mr Levay says that, given the ET’s findings as to the nature of the communications and Ms Nunn’s evidence (which he says they appear to have accepted) that she was “dumb-founded” by them, the ET erred in finding that they did not amount to sexual harassment. However subtly the point was argued I am afraid I could not agree with this proposition and my view remains that the ET’s findings on this complaint were findings of fact which were perfectly open to them on the basis of all the evidence, looking at matters in context.

That context included (a) the close personal relationship between Adam Crouch and the claimant (b) the fact that she, a mature woman, enjoyed being his confidante, (c) the fact that he was telling her about exchanges he had had with another female employee, (d) the fact that she responded with her own advice that he had behaved wrongly, and (e) the fact that she did not say he had “overstepped the mark” or complain until 16 months after the event once proceedings were afoot. Taking those circumstances into account I cannot see that the ET’s findings about Ms Nunn’s state of mind and Adam’s intentions at the relevant time can possibly be challenged on appeal.

Mr Levay argued these two grounds together. He said in effect that the ET, in relying on Ms Nunn’s failure to complain at the time as undermining the case that the conduct happened at all or was “unwanted”, failed to properly consider the extent to which the claimant merely “tolerated” conduct as a way of fitting in at the workplace. He referred in this context to the passage in the Weeks decision which I quote above and went so far as to submit that “ … in all cases of harassment on the grounds of sex or sexual harassment, where a woman appears to play along with otherwise offensive conduct (or even laugh at it), it is incumbent upon the tribunal to consider whether she was doing so as a form of fitting in within the workplace.” He also said that the claimant herself raised the issue of merely “tolerating” conduct in para 6.2 of her grounds of complaint and para 28 of her supplementary witness statement and that the ET did not deal properly with her evidence on the point.

It is right to say that the ET relied on both (a) their findings that the claimant joined in the office banter and laughed along on occasion and (b) her lack of contemporaneous complaint, as support for their conclusions as to the claimant’s state of mind about the incidents relied on in this appeal and that these were important considerations for the ET.

On looking at the judgment as a whole, however, I do not consider that there is really any basis for the suggestion that the ET failed to properly consider the possibility that the claimant was merely “tolerating” conduct which would otherwise amount to sexual harassment as a way of fitting in in the workplace. The ET expressly address the point in the context of considering Mr Barton’s “eye candy” comment at para 245 and even accept that she may have “tolerated such comments to an extent” (see also para 1003). But they also had direct evidence of the claimant laughing at and enjoying certain sexual comments (“office cougar” and “MILF”: see paras 243, 348 and 349) and they apparently also accepted Mr Barton’s evidence that she laughed at the “tight nunny” comment (see paras 253 and 257): that was clearly material which they were entitled to take into account in reaching their conclusions that the comments were not genuinely unwelcome or regarded by the claimant as having the proscribed effect.

When considering the significance of her failure to complain about various incidents the ET were obviously fully alive to the possibility that a failure to complain immediately may not mean much in the context of a complaint of sexual harassment: that is why they referred on a number of occasions to the fact that she did make complaints to Adam Crouch about his brother Richard’s messages and his own “pretty woman” comment (see para 169, 1012 and 1060). Mr Levay suggests that they failed to take account of the different context of those complaints, in particular that Richard Crouch was not someone she worked alongside and that the “pretty woman” comment suggested that her ability as a worker was not valued. Again, it is clear that the ET had those differences well in mind as they refer to them expressly; but anyway they do not detract from the point that the complaints she did make showed that the claimant was capable of complaining to Adam Crouch when she was upset about her treatment and that that makes her failure to complain about other matters more significant.

Again, however subtly Mr Levay sought to analyse matters, I was not persuaded by his arguments. Standing back and considering the overall findings made by the ET critically in the light of his submissions, I do not think that the ET made any kind of error of law. It seems to me they carefully analysed the whole context in this particular case and made findings of fact which were entirely open to them on the basis of all the evidence.

I therefore dismiss the appeal.