ABSTRACT
Smith v Gardner Merchant Ltd [1998] IRLR 510; [1998] 3 All ER 852; [1999] ICR 134, CA
The facts are set out on p 162, above.
Ward LJ (p 516):
A different argument for avoiding the necessity to look for a comparator of the opposite sex may arise in connection with allegations of sexual harassment. The argument is taken from the judgment of Morison, J in the EAT in British Telecom v Williams [1997] IRLR 668 at 669 ...:
To affect a person’s dignity on the grounds of sex will, as with other forms of sexual harassment, cause a detriment to that person. Thus, proof of sexual harassment, of whatever form, will satisfy the criterion. Because the conduct which constitutes sexual harassment is itself gender-specific, there is no
13 For a rare case of colour discrimination, see Walker v Secretary of the Treasury 713 F Supp 403
necessity to look for a male comparator. Indeed, it would be no defence to a complaint of sexual harassment that a person of the other sex would have been similarly so treated: see Porcelli v Strathclyde Regional Council ([1986] ICR 564).’ (My emphasis.)
The judgments of the President of the EAT always command respect but I regret I do not fully agree with what fell from him on this occasion. I agree that the kind of conduct which constitutes sexual harassment can be, indeed usually is, genderspecific. It was in Porcelli’s14 case. The abuse to which she was subjected was being shown a screw nail and asked if she wanted a screw and being shown a penis-shaped glass rod holder and asked if she had use for it. It was this sort of behaviour which ineluctably compelled the conclusion that:
In my opinion this particular part of the campaign was plainly adopted against the applicant because she was a woman. It was a particular kind of weapon, based upon the sex of the victim, which, as the industrial tribunal recognised would not have been used against an equally disliked man [see [1986] ICR 564 at 569 per the Lord President; my emphasis] ...
