Female office worker awarded thousands over sexist 'while you're down there love' joke from her late 'old school' boss when she bent to pick up a pen faces new tribunal - after his firm succeeds in an appeal bid due to his 'lack of capacity'
A female office clerk who was awarded thousands over a sexist 'while you're down there love' joke made by her late 'old school' boss when she bent over to pick up a pen is facing a new tribunal.
Tina Donlon was bombarded with 'bad misogynistic jokes' while working for Sidcup-based glazing specialists Leslie Easton & Co Ltd, a tribunal heard previously.
After she bent down to pick up a dropped pen, her elderly boss Leslie Easton cracked the joke 'ooh, when you're down there, love,' insinuating she should perform a sex act.
Ms Donlon was awarded £19,000 in compensation in 2022 after she said it was part of a pattern of sexual harassment from Mr Easton, who she said had also joked in front of a customer that he'd like her to take her clothes off on hot days.
However, the Employment Appeal Tribunal in London has now overturned the payout after it concluded the lower tribunal had failed to properly investigate whether the late boss was mentally capable of giving evidence.
Tina Donlon sued for thousands after a sexist 'while you're down there love' joke was made by her 'old school' boss when she bent over to pick up a pen
Leslie Easton, who died last month aged 79, ran family company Leslie Easton & Co Ltd, where Ms Donlon began working in 2014
The female worker was also sent a stream of 'bad misogynistic jokes' and pornographic images via WhatsApp by her boss, who was then in his 70s.
The payout was overturned this week on appeal, meaning the case must be considered again.
Mr Easton - who had a stroke in 2000 and died aged 79 last month - ran family company Leslie Easton & Co Ltd, a glass and mirror shop and double glazing and conservatory business in Sidcup.
Ms Donlon began working there in 2014 as an office administrator, hoping to further her experience in accounts, having begun a course with the Association of Accounting Technicians.
But she said she was subjected to repeated incidents of sexual harassment in the workplace from her employer, Mr Easton.
Ms Donlon said that, while in Mr Easton's office during 2019, a pen was dropped on the floor and, as she bent to pick it up, he cracked a sexist joke.
She told the tribunal he said, 'Ooh, while you're down there, love,' insinuating that she should perform a sex act, leaving her 'humiliated, embarrassed and intimidated.'
In another incident, she said that, during a heatwave in June 2017, she had been permitted to wear knee-length shorts in the office.
But when a customer remarked that she must be lucky to have a boss who allowed that, Mr Easton had said: 'Well, we keep telling her to take all her clothes off, but she won't have any of it.'
Leslie Easton and Co Ltd, where Ms Donlon says she was subjected to sexist jokes by elderly owner Mr Easton
She said that, when she told Mr Easton's son and co-director, Justin Easton, what happened, he told her: 'Oh well, that's my dad, he's old school.'
Ms Donlon also said she had begun receiving offensive messages from Leslie Easton via WhatsApp, including 146 memes and 31 videos.
Many of the messages were sexual in nature, some of them 'simply bad, misogynistic jokes,' the tribunal said, although some included pornographic images.
Mr Easton did not respond to the allegations about the shorts and the 'while you're down there' joke in his defence and Employment Tribunal Judge Corinna Ferguson accepted they had happened.
Neither the company boss - who didn't give evidence - nor the company itself disputed that he had sent the WhatsApp messages, only that they were not 'unwanted' communications.
But the judge said they had not put forward any evidence to show Ms Donlon ever indicated she was happy to receive such material.
'We accept the claimant's evidence that she did not find the messages funny, and that she felt humiliated and victimised by receiving them,' she said, giving the judgment of the tribunal.
The tribunal awarded Ms Donlon a total of £19,000 from the company and Mr Easton himself for sexual harassment and victimisation.
'As regards the two remarks, we find that they were both unwanted conduct of a sexual nature,' said Judge Ferguson.
'They fall into the category of 'inherently unwanted' conduct because they were demeaning and embarrassing to the claimant.
'We accept that they had the effect, even if not the purpose, of violating the claimant's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.'
Barrister Rad Kohanzad, representing Mr Easton's estate and the company on appeal this week, argued that the tribunal had been wrong to plough ahead with the case after concerns were raised about the boss' mental capabilities.
It was thought he was fully capable of giving evidence, but when he got into the witness box, his representatives quickly became concerned at his 'clear confusion,' said the barrister.
An Employment Tribunal awarded Ms Donlon £19,000 compensation in 2022, but that payout was this week overturned on appeal
However, despite raising the issue with the tribunal and asking for time to get a medical report, the tribunal pushed on and considered the case on the basis that Mr Easton 'chose' not to give evidence.
Ruling on the appeal, Judge Murray Shanks said the tribunal should have given Mr Easton's representatives time to get medical evidence about whether he was fit to give evidence.
'There was, in this case, good reason for concern and legitimate doubt as to Leslie Easton's capacity,' he said.
'The Employment Tribunal's finding that Leslie Easton "chose" not to give evidence cannot stand. In those circumstances, I must allow the appeal.'
The case was sent back to the Employment Tribunal to be heard again.
