A WOMAN has been allowed to continue a ten-year fight to claim compensation for sexual harassment at work, even though judges branded the time and money already spent on the case as “beyond belief.”
Margaret Malcolm, 55, of Dundee, was a general assistant at Baldragon Academy in the city until she resigned in 2002.
She took her former employer, Dundee City Council, to an employment tribunal claiming to have been the victim of harassment by male technicians.
She said she answered the phone one day and discovered a Blu-tac model penis stuck on the phone. She squashed it, but later another model, this time with a replica pubic hair, was put on the phone.
Three men had taunted her and asked if she knew what it was, and whether it was the right size.
She found that, on the same day, male genitalia had been drawn on to paper, cut-out dolls she had prepared for her Brownie troop.
The tribunal dismissed Ms Malcolm’s claim. It held that the harassment had occurred, but declined to find the council vicariously liable. But the decision was reversed because one of the members, who was unwell, had fallen asleep, and the case was considered by a different tribunal.
The hearing lasted 21 days over an 18-month period in 2005 and 2006, and the tribunal ruled that the sexual harassment complaint was established, and that the council was liable for its employees’ behaviour. However, it also decided the case was time-barred, because a complaint needed to be made within three months from the last act of harassment, and the incidents in Ms Malcolm’s case had ended in December 2001 and she had not initiated the case until April 2002.
Several further hearings were held before the employment tribunal and the employment appeal tribunal (EAT), culminating in a judgment by the EAT in 2009 which went against Ms Malcolm and ended the case.
Next, Ms Malcolm, representing herself, took the dispute before three appeal judges in the Court of Session in Edinburgh. Today, the court ruled that her application for leave to appeal the EAT decision should be granted.
Lord Malcolm, sitting with Lady Paton and Lord Osborne, said: “In the course of the hearing, parties explained that they had engaged in settlement discussions, however they had not borne fruit. The amount of time and expense incurred on this matter is already beyond belief. With the benefit of the terms of this opinion, the court hopes that those discussions will be resumed with the prospect of a more positive outcome, thus avoiding any need for further court or tribunal procedure. Ms Malcolm can be pointed towards possible sources of free legal advice.”
The appeal judges said their judgment was a “best attempt to make sense of this long and complicated saga” which the EAT had described as “a mess.”
Lord Malcolm continued: “In large measure, this is because of the complexity of the substantive law and the intricacies of the procedural rules, which often seem to militate against finality of decision making. The amount of tribunal and
court time, and associated expense, which has been spent on this matter over no less than ten years is staggering.
“We note with concern that all of this has occurred in the context of a system which, at least initially, was aimed at improving efficiency and reducing costs by encouraging lay representation.”