In this case, the EAT held that an employment tribunal had been entitled to dismiss an employee's claims of sexual harassment on the basis that the alleged conduct was not "unwanted" taking into account the context of the workplace relationship, including the employee's participation in office banter, and her failure to complain at the time.
Facts
Ms Nunn began working for G and MJ Crouch and Son Ltd, a family-run vehicle recovery business, in May 2018. She was a longstanding friend of the family, and did not have a formal contract of employment. Following a falling out in April 2021, Ms Nunn resigned on 5 May 2021.
She brought claims in the employment tribunal for constructive unfair dismissal, sex discrimination, sexual harassment, harassment related to sex, and whistleblowing. The tribunal upheld a single allegation of sex discrimination, concerning a WhatsApp message from the manager, Adam Crouch, which asked Ms Nunn to attend a client meeting because the client "likes pretty women". The tribunal held that this comment would not have been made to a man, and it therefore amounted to direct sex discrimination. However, the tribunal dismissed all of Ms Nunn's other claims.
Ms Nunn appealed against the tribunal's rejection of her sexual harassment claim. She relied on four specific incidents of alleged harassment, involving highly inappropriate comments that were made to her by Adam Crouch and other colleagues. Some of these comments were graphic and sexually explicit, and the tribunal had described them as "vulgar, offensive and grossly inappropriate for the workplace".
The EAT nonetheless upheld the tribunal's decision, finding that it had been entitled to conclude that, although clearly inappropriate, the comments were not unwanted by Ms Nunn and they did not have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
In relation to the sexually explicit message from Adam Crouch, the tribunal's conclusions had taken into account the relevant context, which included:
- Ms Nunn's close personal relationship with Adam Crouch and the fact that she (a mature woman) enjoyed being his confidante
- The fact that the message was an account of Adam Crouch's exchanges with another female employee and Ms Nunn responded with advice
- The fact that Ms Nunn had waited 16 months before complaining about the message, by which time she was in the process of bringing her tribunal claims.
When considering more generally whether any or all of the comments were unwanted, the EAT did not accept Ms Nunn's argument that the tribunal had failed properly to consider whether she merely tolerated the inappropriate conduct of her colleagues as a way of fitting at the workplace. The tribunal had expressly addressed this point, and had been entitled also to take into account direct evidence of Ms Nunn laughing at and enjoying certain sexual comments.
As to the significance of Ms Nunn's failure to complain about any of the four comments at the time, the EAT noted that the tribunal had clearly been alive to the possibility that a failure to complain immediately may not mean much in the context of a complaint of sexual harassment. However, it was a factor that the tribunal was entitled to take into account. It was also particularly significant in this case because Ms Nunn had complained promptly about other comments that she had been genuinely upset about, such as the "pretty women" remark that was the basis for her successful sex discrimination claim.
What does this mean for employers?
The employer in this case was able to avoid liability for sexual harassment on the basis that the conduct in question was not unwanted and did not create the relevant offensive, etc. environment for the employee. However, in most cases there will not be such clear evidence of an employee who claims sexual harassment also actively participating in and enjoying the inappropriate "banter" at work. Employers should certainly not view this case as an indication that they can rest easy.
Since the introduction of the duty to prevent sexual harassment in October 2024, responsible employers will have been taking proactive steps to address any potential issues – including conducting risk assessments, updating policies and training, and implementing appropriate control measures (see our previous article here). The Employment Rights Act 2025 (ERA 2025) will further increase the importance of such actions by:
- Making disclosures about sexual harassment protected disclosures for the purposes of whistleblowing protection (expected in April 2026)
- Extending the preventative duty so that employers are required to take all reasonable steps, as opposed to just reasonable steps, to prevent sexual harassment at work (expected in October 2026)
- Requiring employers to prevent harassment of their workers by third parties - covering not just sexual harassment, but all types of harassment under the Equality Act 2010 (expected in October 2026)
See our ERA 2025 tracker for further information.
