Archivist wins appeal against being called “sour and bitter”

The Employment Appeal Tribunal has ruled in favor of a woman who had been labelled’sour’ and ‘bitter’ for her harassment case relating to her sexuality.

Sue Kemsley, an archivist for Cambridgeshire County Council since 2007, was laid off in 2019.

She had a difficult working relationship with Mr Anderson during her tenure at the company, and in 2014, she informed the tribunal of a breakdown of this relationship.

Kemsley wrote to the archives manager in 2018 and told him she would file a complaint with the council, if Anderson continued to manage her.

In the summer of 2019, due to a planned move in the archive department, two data entry roles would not be needed. Her job was therefore at risk. These two roles, along with four packaging assistants, were all made redundant after formal consultation.

Kemsley appealed, claiming that it was not an actual redundancy, and that she was “victimized” as data entry was only a part of her job. She was told by the council that she did not qualify for an appeal, and her employment ended on October 31, 2019.

She filed a number claims with the tribunal, including those for sex and age discrimination as well as harassment and victimisation. The initial hearing was held in early 2022, and the claims were dismissed in August 2022 when the written judgement was published.

She claimed in the first tribunal that she was described as “that woman” and “a sour, bitter individual” by an email.

Kemsley argued in her appeal that the original tribunal did not give sufficient reasons for dismissing the case and that its decision was “perverse”, because it was based almost exclusively on statements made by her council colleagues.

She also contested the decision of the tribunal that calling her “a bitter and sour person” was not sex harassment because the word “individual”, rather than “man or woman”, was used.

Charles Bourne , a judge at the EAT, agreed with Kemsley that her side of the story was not adequately presented. He found it “perverse” that the comment was not about her sexuality.

The EAT heard about other alleged incidents, such as when Anderson told Kemsley her top was “revolting”, and that she needed to see a psychiatrist for “serious mental problems”.

The case will be sent back to another tribunal for a re-examination of the facts.

Samantha Dickinson is a partner in the law firm Mayo Wynne Baxter. She said that the judgment highlights the importance of addressing sexism at work and taking the feelings of victims into consideration, not just the intention of the perpetrator.

“Decribing a co-worker as’sour’ and ‘bitter’, particularly with gendered overtones such as ‘that woman’ can lead a jury to draw negative inferences regarding the speaker’s mental state.”

She said that any comments made about a person’s appearance, demeanor, or dress sense, even if they are not intended to be offensive, could be interpreted as sexual harassing.

HR leaders must be aware of the importance of conducting thorough and unbiased investigations into complaints made by employees about discrimination, harassment, or mistreatment.

In Kemsley’s situation, the first tribunal dismissed her claim, relying largely on the employer defence and overlooking the importance of her experience and the language used by her supervisor. It is important that HR departments give both sides equal weight in a dispute.

This ruling highlights the importance of maintaining detailed records. Kemsley’s detailed documentation of the incidents, which included inappropriate comments made by her manager, contributed to bringing attention to this case.

HR leaders can take a lesson from this example by encouraging their employees to document any concerns they have and taking appropriate measures to thoroughly investigate these issues.

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