Ms F Oyeleye v Mr N Askew and 1 other — 2019

Ms F Oyeleye brought a claim of sexual harassment under section 26 of the Equality Act 2010 arising from the incident on 29 June 2018 when she arrived at Mr Askew’s flat and found him filming while naked. The Tribunal found that Mr Askew had been naked and filming when she arrived, but it also found the incident was fleeting, there was no physical contact or sexual assault, and the claimant and Mr Askew continued working together for the rest of that day.

The main issue was jurisdiction. The Tribunal found that the claimant was running her own editing business, that Mr Corre was a client of that business, and that she was not working under a contract of employment or a contract personally to do work within section 83(2)(a) Equality Act 2010. In reaching that conclusion, it relied on the evidence that she was engaged as a professional editor, worked through her own company, was not controlled as to how she carried out the work, and was an independent provider of services rather than a person in subordination to the recipient of the services.

On that basis, the Tribunal held that the claimant did not fall within the definition of employee for Equality Act purposes and that it had no jurisdiction to hear the harassment claim against either respondent. It also rejected the claimant’s EU-law based argument, including reliance on Directive 2010/41/EU and Article 21 of the Charter, and refused the request for a reference to the CJEU.

The Tribunal went on to say that, if it had been wrong on jurisdiction, the harassment claim would in any event have failed. It accepted that Mr Askew’s conduct in filming naked was unwanted conduct of a sexual nature, but found there was no evidence that it was premeditated or intended to violate the claimant’s dignity or create a hostile environment. It also found that the claimant’s own recording and other evidence did not support her account that she was humiliated, degraded, offended or intimidated, and that it was not reasonable to conclude that the incident had the effect alleged.