Zero hours worker awarded £19,500 for sexual harassment

2015-04-23 chris posted:

The employment tribunal recently considered a case concerning a worker on a zero hours’ contract working for a hotel, who was sexually harassed by her manager. She also made claims against the hotel for adopting an inadequate approach to investigating her complaints.

The employee worked as a waitress for Britannia Hotels. She was aged 22 and had a history of mental health issues. From February 2013 she was harassed by her line manager for a period of 8 months. This included the line manager asking her about her sex life, touching her inappropriately, kissing her neck and making inappropriate comments about her personal life.

The waitress lodged a formal complaint with the hotel manager. However, the initial investigation was cursory as no detailed particulars were sought about the harassment and when a witness was identified, only 10 minutes was spent interviewing the witness. No disciplinary action was taken against the line manager, or even a warning.

When the employee made a further complaint, the matter was re-investigated by Britannia’s new HR manager, 10 months after the original complaint. During the investigation, the HR Manager did not read any of the papers relating to the first investigation, and failed to interview the key witness. She concluded that there was "no conclusive evidence" that the incidents had occurred.

Under s26(1) Equality Act 2010, harassment is defined as unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Gender is one of the protected characteristics.

The tribunal held that the alleged sexual harassment had, on the balance of probabilities, taken place, and that the conduct had been unwanted. There could be little doubt that it was reasonable for the employee to regard the treatment she received as degrading and violating her dignity.

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. However Britannia’s response to the worker’s complaint showed that it clearly had not taken all reasonable steps to protect her, whatever its policies might say. The complaint of sex discrimination by way of harassment was successful.

There were certain aggravating features in this case which merited a high award of £19,500 for injury to feelings, such as the employee’s young age and fragile mental health, the abuse of power by her manager, and her fear of not being given work due to her zero hours contract status. Also, the perfunctory nature of Britannia’s investigation, followed by its inadequate way of dealing with the problem, magnified the effect of the harassment. In particular, Britannia had failed to suspend the accused manager pending any investigation, jeopardising corroborating witness evidence, and failed to interview witnesses properly. The HR manager was criticised for not reading all the previous papers relating to the allegations, and the managers criticised for appearing to have not the slightest interest in getting to grips with what had actually happened.

One significant aspect of the case was the employee’s status as a zero hours worker. Although this is only alluded to briefly in the judgment, the tribunal noted that the employee felt trapped and fearful that her shifts might be reduced if she complained. It appears that tribunals are prepared to give more weight to the employment status and security of the claimants when considering to what extent they are vulnerable.

The case is a useful illustration for employers of how not to conduct an investigation into allegations of harassment.

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