Brandishing the middle finger at work does not constitute sexual harassment provided that it is made to a group of male and female colleagues, a UK tribunal has ruled.
The decision emerged from a case brought against BT Group, the largest mobile and broadband services provider in the UK, by a former business advisor for its handling of a complaint she filed against a male colleague who made the rude gesture at her on multiple occasions in 2023.
The hand gesture, which is also known as ‘flipping the bird’, is widely interpreted to represent male genitalia and sexual intercourse and has been used since ancient times as a form of insult.
The tribunal, sitting in Glasgow, Scotland, heard that Andreea Cracuin was given ‘the finger’ by Darren Sliman at least three times, including one occasion where she asked him for his ‘normal greeting’.
Cracuin said she sometimes reciprocated the gesture, but reported the incident to her manager, Courtney Black. After conducting an investigation, Black was confident Sliman wouldn’t repeat the gesture and suggested the two undergo workplace mediation.
However, Cracuin rejected the mediation and called for Sliman’s dismissal, describing him as a ‘Nazi’ and a ‘racist’ in an email. She also said Black was lacking ‘emotional intelligence’, the BT Group lawsuit said, resulting in her suspension with pay and an investigation over her language and conduct.
After an inquiry, Cracuin offered no apology and claimed that her language was appropriate, leading to her dismissal in December 2023.
After losing her job, Cracuin sued BT Group, alleging sex and race discrimination and harassment related to Sliman’s hand gesture. However, her claims were filed beyond the statutory limit, which typically stands at three months minus one day, precluding the tribunal from exercising jurisdiction over the case.
Despite the procedural bar, employment judge Jacqueline McCluskey said that even if the claims of workplace sexual harassment were submitted on time, they would still have failed as the tribunal found no evidence suggesting the incident was motivated by either sex or race.
“In relation to sex, the findings of the disciplinary hearing and the evidence… was that Mr Sliman showed the middle finger to both male and female colleagues,” McCluskey said.
“Accordingly, if we had found that the complaint was in time or that time could be extended, we would have found that there were no facts found to allow us to conclude that the burden of proof had shifted to [BT],” the judge added, further dismissing additional claims of disability, race, and sex discrimination.