Sex discrimination in the news

The news is full of a possible £12 million pounds payment to bullied city lawyer Gillian Switalski. From the Guardian report:

Switalski claims she was forced out of her £140,000-a-year job in September 2007 following 18 months of bullying and harassment. A tribunal heard her manager Marrack Tonkin criticised her for choosing flexible hours that gave her more time with her children, one of whom had cerebral palsy and another Asperger’s syndrome. Tonkin was said to have become “fixated” with her working hours while a male colleague who had children with special needs was allowed to work from home to help care for them.

The tribunal was told Tonkin “had a particular difficulty” working with a senior woman older than himself and had been “dismissive” when Switalski complained that when her mother died the company demanded a death certificate so the cost of a cancelled business flight could be claimed on insurance. It was also alleged she was not allowed to join an all-male management committee despite her seniority and that while Tonkin took male colleagues out to lunch several times, she only shared a plate of sandwiches with him while he carried out a career review.

But once you ignore the figures this is (without at all minimising the impact on Ms Switalski) a fairly run of the mill sex discrimination claim, what she seems to have suffered is very similar to the experience of many women in the workplace.

The claim being made by Wolverhampton prison warder Amitjo Kajla has more unique features. Ms Kajla, 22, worked at a young offenders institution. Attractive, she worked exclusively with male offenders aged 15 -22. Needless to say she drew a few comments, and she has been criticised by her employer for dressing too provocatively. Her specially altered size 4 uniform was too ‘revealing’, said the prison, and she wore too much makeup and was too familiar with offenders. The Birmingham Post reports Warren Sullivan, a governor, telling a tribunal:

“[her] uniform was figure hugging and her jumper was sleeveless and tucked into her trousers. It accentuated the female form. The figure-hugging uniform she was wearing could have led to temptation for inappropriate behaviour among the inmates. They are all male aged between 15 and 22-years old. Many have experienced mental, physical and sexual abuse in their lives and the clothes and make-up that Ms Kajla was wearing was inappropriate.”

In addition Ms Kajla, for her part, says that she was called “a stupid little girl” for putting her security at risk when an inmate told her “Miss, you look sexy”, as well as that remarks were made about her appearance by other staff in front of inmates. A far cry from Prisoner Cell Block H.

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Interestingly both the Birmingham Post and the Telegraph, who report the above contentions by Ms Kajla, suggest she is bringing a claim for constructive unfair dismissal. From her version of events it would seem that she ought to have included a claim for sexual discrimination, primarily for harrassment. To succeed on her constructive dismissal test she must show that the prison breached the implied term of mutual trust and confidence such to enable her to resign in response. Nowadays, there is also perhaps a requirement to show that the prison acted unreasonably – although this area of the law is still under some discussion. Contructive dismissal is a relatively high bar for an employee to cross. A claim of harrassment would simply need her to show that on the grounds of her sex, there was conduct which violated her dignity, or created an intimidating, hostile, degrading, humiliating or offensive environment for her.

We have to be careful when dealing with the selective choice of evidence yielded up by newspapers, but it seems to me that the prison may well have had reasonable grounds for requiring Ms Kajla to tone down her attractiveness. The actions of other staff may however be in question.

Finally on this thread, what are the employment law aspects for the waiting staff employed at this evening party that got out of hand? When he realised that the party that had hired his manor house as a venue bore more resemblence to the famous scene in Eyes Wide Shut than just the costumes, he very sensibly allowed any waiting staff to go home early. It’s almost as if he’d read about Bernard Manning’s antics in Burton and Rhule v De Vere Hotels [1996] IRLR 596.