In a recent case that took place in the Leeds Employment Tribunal against Britannia Hotels Limited, an Employment Tribunal awarded £19,500 for injury to feelings to a waitress who had been subject to sex related harassment. An aggravating factor that the Tribunal took into account was the way in which the employer had dealt with the matter, which was said to magnify the effect of the harassment.
The waitress was employed on a zero hours contract so this case illustrates that those on zero hours contracts have the same rights as anybody else when it comes to these sorts of complaints. She was 22 and had a history of mental health problems which the employer was aware of and, again, that was found to be a particular vulnerability which was an aggravating factor which merited a higher than average award.
She had been subjected to harassment by her line manager who frequently asked about her sex life. She raised a concern with another line manager who told her to lodge a written complaint, but didn’t take any further action. The alleged conduct then got worse with the offender touching her on the bottom, kissing her on the neck and standing behind her grinding and simulating sexual intercourse. She went off on the sick and raised a complaint of bullying in relation to another colleague, but at the same time as raising that she raised the issue of the sexual harassment. The hotel manager required her to lodge a formal grievance, which she did, and they conducted an investigation but did not seek details from her and only spent 10 minutes interviewing the main witness who had confirmed key details of her allegations. The protagonist vehemently denied the allegations, as is often the way with these situations. The outcome of the investigation was set in terms that the protagonist had ‘mannerisms and behaviour’ that were ‘inappropriate’. No disciplinary action was taken but the protagonist was asked to desist from this behaviour in the future. By this point the employee had already lodged her Tribunal claim, as an employee is entitled to do i.e. they don’t have to have resigned to lodge a claim under the Equality Act.
On receipt of the Tribunal complaint, the employer then appointed a different person to conduct a second investigation. By this point the main witness’s account had changed but the new investigator didn’t read the papers from the first investigation (this person was from HR – it beggars belief that they didn’t read the first investigation papers!) This investigator found there was no conclusive evidence in relation to the majority of incidents. The employee appealed to another manager who then conducted some further investigation but ultimately rejected her appeal.
When they got to Tribunal (one does have to wonder why the employer didn’t settle this) the Tribunal had no hesitation in concluding that the events had occurred in the way described by the employee and that the conduct was unwanted. She was found to be a credible witness, having given a consistent account throughout all the stages. In contrast, the protagonist’s evidence was vague and contradictory. The Tribunal were therefore satisfied that the complaint of sex discrimination by way of harassment had succeeded. The hotel couldn’t demonstrate that it had taken all reasonable steps to prevent harassment so their statutory defence was not open to it. Whatever the hotel’s policies might have said about inappropriate conduct, they had not actually implemented them and a manager who had actual knowledge of the harassment had done nothing about it. Each investigation had been inadequate and flawed and, in particular, the Tribunal criticised the hotel for failing to suspend the protagonist or take any disciplinary action against him with all three managers failing to follow up on the potentially corroborating evidence of a main witness.
In setting the high level of the award for injury to feelings, the Tribunal took into account the employee’s vulnerability, given her age and mental health, and felt that it had been made worse in the manager overlooking what he had been told. Ordinarily the Tribunal would have awarded a sum in the middle of the three bands established by the Court of Appeal in the case of Vento which would be between £6,000 and £18,000 but they felt the hotel’s wholesale failure to investigate the complaints and the other aggravating features justified setting the award much higher, at £19,500.