Facts
Alleged harassment
The Claimant worked as a waitress at, Britannia Hotels Limited (Britannia) and her line manger was also employed by Britannia. She alleged that from February 2013 she was subjected to harassment for a period of eight months by her line manager (A). She was 22 at the time of the alleged harassment and had a history of mental health issues. She was employed under a zero hours contract.
The Claimant claimed that A frequently asked her to talk about matters relating to her sex life. When she complained about this to another one of her line managers, she was told to lodge a written complaint but that line manager took no further action. Thereafter the alleged conduct worsened. The Claimant alleged that A touched her on the bottom, kissed her on the neck and continued to make inappropriate comments about her personal life. She claimed that he sometimes stood behind her and made a grinding movement on her back, simulating sexual intercourse. On one occasion, she complained, when she was leaning over a work surface, that he knelt down and stroked her back passage with a pen.
The Claimant went off sick from 27 October 2013. In late October, an unrelated meeting was held with the Claimant and in the course of that meeting, the Claimant told the hotel manager (Mr Whittaker) about the sexual harassment by A. She indicated that although she had mentioned the matter to another line manager, she had not wanted her to say anything in case her shifts were reduced as a result of the complaint.
Investigations into harassment
Mr Whittaker asked the Claimant to lodge a formal complaint, which she did, and he duly investigated the matter further. The investigation was very brief. No detail was sought about the harassment and when a witness to the harassment was identified, she was only interviewed for 10 minutes. The witness was able to verify that A touched the Claimant’s bottom and kissed her neck. A denied the alleged conduct.
In December 2013, Mr Whittaker wrote to the Claimant with the conclusion of his investigation, namely that certain “mannerisms and behaviour” by another member of staff towards her were inappropriate. This was not detailed any further. No disciplinary action was taken against him, not even a warning, although he was asked to desist from this behaviour in future.
Following receipt of the employment tribunal claim, Britannia decided that the complaint should be re-investigated by a new HR manager, some ten months after the original complaint. During the investigation, A once again denied the allegations and this time, the verifying witnesses’ evidence changed. As the new HR Manager did not read the papers relating to the first investigation, she was unaware of the inconsistency in that witness’s position. She found that there was “no conclusive evidence” that the majority of incidents had occurred. She found that the neck-kissing had taken place but that the Claimant had to some extent encouraged it. Despite her finding that no harassment had taken place, A was required to attend a bullying and harassment course in September 2014.
The Claimant appealed, unsuccessfully, against the decision.
Decision
The Tribunal concluded that A had harassed the Claimant and Britannia was vicariously liable for it. Britannia could not avail itself of the statutory defence. It made an award of £19,500 for injury to feelings against both respondents, such award being for joint and several liability.
Harassment:
Miss Southern was a credible witness, having given a consistent version of events throughout. By contrast, A’s evidence was vague and contradictory. It was clear to the tribunal that he was unwilling to say anything on oath that was untrue and it was notable that, when giving evidence, he was equivocal about whether the harassment had taken place. This was in contrast to his vehement denials during the course of Britannia’s investigation.
The alleged incidents had, on the balance of probabilities, taken place, and the conduct had been unwanted. There could be little doubt that it was reasonable for the Claimant to regard the treatment she received as degrading and violating her dignity. The complaint of sex discrimination by way of harassment succeeded.
Statutory defence not available
Britannia could not avail itself of the statutory defence. An employer has a statutory defence to discrimination where it can show that it took all reasonable steps to prevent the individual who discriminated from doing that thing, or from doing anything of that description. It was clear that whatever their policies might have said, they had not implemented them. A line manager had actual knowledge of the harassment yet had done nothing to stop a re-occurrence of it. The three separate investigations by three senior managers of the company had been wholly inadequate and flawed. In particular:
1. Mr Whittaker had failed to suspend A so as to protect the integrity of the investigation.
2. He failed to follow up on potentially corroborating evidence.
3. He failed to take disciplinary action against A.
4. The HR Manager had failed to remedy the deficiencies in Mr Whittaker’s investigation; in fact she dismissed the grievance for the flimsiest of reasons.
5. The manager hearing the appeal had, like the HR Manager, failed to pursue enquiries with the original corroborating witness.
Injury to feelings award
In setting the level of the award, the Tribunal noted that the harassment was not of the worst type but also noted that the Claimant was very young and vulnerable by reason of her mental health. The harassment was made worse by the fact that it consisted of an abuse of power by her manager. If the Tribunal had simply been looking at the conduct over the eight month period, it would have placed the award in the middle of the Vento bands. However, as well as the factors referred to above, the Tribunal took into account the dismissive approach taken by Britannia to the investigation. This aggravating feature was taken into account when setting the level of damages at £19,500.
The tribunal summed up the reason for its approach as follows:
“Where persistent harassment over a period of eight months has occurred substantial compensation is likely to be justified but where the employer then has the means of addressing the problem, but wholly fails to do so in relation to a process that takes another year to complete the impact upon this Claimant was likely to be magnified. It cannot be underestimated how the Claimant must have felt when she was, and indeed has continued to be, persistently disbelieved”.
Useful Note
This case is a good example for employers of how not to conduct an investigation into discrimination allegations. The Tribunal noted that the employer seemed to be labouring under the illusion, that it could adopt a “range of reasonable responses” approach to investigation. The investigation lacked rigour and integrity at every stage. The tribunal commented that the employer did not appear to have the slightest interest in getting to grips with what had actually happened.
Part of the claimant’s vulnerability in this case, apart from her youth and mental health, was her status as a zero hours worker. Although this is only alluded to briefly in the judgment, the tribunal noted that the Claimant felt trapped and fearful that her shifts might be reduced if she complained. It is possible that moving forward Tribunals will give more weight to the employment status and security of the claimant when considering to what extent they were vulnerable?
