An admin worker has lost a sexual harassment case after she complained her colleague messaged her saying "ready for your big penetration". Farah Farook moaned that her Network Rail co-worker Ben Fairburn had played "footsy" with her, messaged her "hiya trouble" and made her "uncomfortable" by asking her to go for a walk.
An employment tribunal heard the administrator made a total of 43 sexual harassment allegations against the technician spanning three months. However, the tribunal has ruled the behaviour was part of an ongoing "flirty relationship" which "objectively showed a mutual intensity".
The pair messaged "thousands" of times, chatted late at night, and Miss Farook frequently initiated contact, the panel found. They also made sexual innuendos, had "sexual conversation", watched a movie at Mr Fairburn's house and went on a day out which appeared to look like a "romantic" date.
Miss Farook, who worked with Mr Fairburn at a Network Rail office in York, made her sexual harassment complaint after their flirty relationship "fizzled out" and she believed Mr Fairburn was ignoring her work requests. Now, she has lost her case against Network Rail after bringing claims of harassment, sex discrimination and victimisation at an employment tribunal in Newcastle.
The tribunal heard Miss Farook had her induction at York in May 2020 after being supplied through an agency and quickly developed a "close friendship" with Mr Fairburn, with colleagues observing them always sitting closely together. Messages got "more intense and more intimate" and from May to July 2020 they exchanged "thousands" of WhatsApp messages.
Messages showed they called each other “cheeky sod”, “angel”, “hiya, trouble”. A tribunal report said: "They objectively showed a mutual intensity and at times a flirtatious relationship."
On May 23, 2020, Mr Fairburn messaged her about a presentation she was making. He wrote "ready for your big penetration" and a minute later said “OMG, I mean presentation”.
Miss Farook, who was also based at Stockton on Tees, County Durham, replied “penetration lol what you got on your mind” and later Mr Fairburn told her: "Best off you didn’t come [to work in York] tbf, I couldn’t be able to concentrate. Penetration. Spell checker set me up there like.”
It was heard they had a day out in Scarborough, North Yorkshire, went out for dinner in Bradford, West Yorkshire, and watched a movie at Mr Fairburn's home. In July 2020, their friendship waned.
Mr Fairburn was "frustrated" Miss Farook needed more assistance from him at work and also believed she was speaking to her ex-partner. Her complaint on July 29, 2020, which included other complaints about work, was "triggered" by her "perception that he was ignoring her work-related requests for help".
As part of it she said: "[He was] playing footsy, touching my hands, massaging my shoulders, touching my legs and asking to go for a walk with him which has led me to feel uncomfortable around him." It eventually led to a disciplinary investigation for Mr Fairburn but by the time of the outcome Miss Farook was no longer with Network Rail.
At the employment tribunal, Employment Judge Edmund Beever threw out all her claims. He said: "These facts and the Miss Farook's concessions in evidence are completely at odds with the her allegations of unwanted conduct.
"The content of the texts and WhatsApp messages and specifically Miss Farook's messages, including in material respects occasions where she initiated a conversation, are also completely at odds with her allegations of unwanted conduct. Further, the frequent mutual references to sexual innuendo are at odds with her allegations of unwanted conduct.
"The tribunal finds that allegations of unwanted conduct... in so far as they refer to text and WhatsApp messages, are misconceived. The text messages were part of a conversation between Miss Farook and Mr Fairburn which evidenced a friendship, at times varying in intensity and closeness, which did not amount to unwanted conduct by Mr Fairburn."
