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Tribunal Awards £19,500 for Injury to Feelings

In the case of Southern v Britannia Hotels Ltd and another, an employment tribunal has awarded £19,500 for injury to feelings to a zero hours worker who was subjected to gender harassment. The case is a useful illustration for employers as to how not to deal with allegations of discrimination.

Background

Under the 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, and this case appears to have been brought as a case of gender harassment. There is a separate definition of sexual harassment, which potentially overlaps with gender harassment and which could also have been applied in this case.

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.

When an employment tribunal makes an award for injury to feelings, it takes a number of factors into account, including the vulnerability of the claimant and the manner in which the respondent dealt with any grievance brought by the claimant.

Facts

Miss Southern worked as a waitress in a Britannia hotel. Miss Southern alleged that from February 2013 she was subjected to harassment by her line manager, Mr Nkorol, for approximately eight months. Miss Southern was 22 and had a history of mental health issues.

Mr Nkorol asked Miss Southern to talk about matters relating to her sex life. When she complained about this to another manager, Miss Crann, she was told to lodge a written complaint but she did not, and no action was taken by the employer. Thereafter Mr Nkorol’s conduct worsened. He began touching Miss Southern on the bottom, kissed her on the neck and continued to make inappropriate comments about her personal life. He sometimes stood behind Miss Southern and made a grinding movement on her back, simulating sexual intercourse.

In late October 2013, Miss Southern confided in the hotel manager, Mr Whittaker, about the harassment by Mr Nkorol. She indicated that although she had mentioned the matter to Miss Crann, she had not wanted her to say anything in case her shifts were reduced as a result of the complaint.

Mr Whittaker asked Miss Southern to lodge a formal complaint, which she did, and he investigated the matter further. However, the investigation was cursory. No detailed particulars were sought about the harassment and when a witness was identified, Ms Shaw, only ten minutes was spent interviewing her. Ms Shaw was able to verify that Mr Nkorol touched Miss Southern's bottom and kissed her neck. Mr Nkorol denied the alleged conduct.

In December 2013, Mr Whittaker wrote to Miss Southern with the conclusion of his investigation, which was that certain "mannerisms and behaviour" by another member of staff towards her were inappropriate. No disciplinary action was taken against Mr Nkorol, although he was asked to not repeat this behaviour. In the meantime, before the outcome of her grievance, Miss Southern had lodged a claim for harassment in the employment tribunal.

Following receipt of the tribunal claim, Britannia directed an HR manager, Ms Buck, to re-investigate the matter some ten months after the original complaint. Mr Nkorol once again denied the allegations, and this time Ms Shaw did not provide corroborating evidence. Because Ms Buck did not read the papers relating to the first investigation, she was unaware of the inconsistency in Ms Shaw’s position. Ms Buck 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 Miss Southern had to some extent encouraged it. Despite Ms Buck finding that no harassment had taken place, Mr Nkorol was required to attend a bullying and harassment course. Miss Southern appealed against Ms Buck's decision, but unsuccessfully.

Decision

The tribunal concluded that Mr Nkorol had harassed Miss Southern and that Britannia was vicariously liable for it. The alleged incidents had, on the balance of probabilities, taken place, and the conduct had been unwanted. It was clearly reasonable for Miss Southern to regard the treatment she received as degrading and violating her dignity. The complaint of sex discrimination by way of harassment succeeded.

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Britannia could not avail itself of the statutory defence. It was clear that whatever its policies might have said, it had not implemented them. Miss Crann had actual knowledge of the harassment yet had done nothing to stop a re-occurrence of it. The three separate investigations had been wholly inadequate and flawed. In particular:

  • Mr Whittaker had failed to suspend Mr Nkorol so as to protect the integrity of the investigation, to follow up on potentially corroborating evidence or to take disciplinary action against Mr Nkorol.
  • Ms Buck had failed to remedy the deficiencies in Mr Whittaker's investigation and dismissed Miss Southern's grievance for the flimsiest of reasons.
  • The manager hearing the appeal had, like Ms Buck, failed to pursue enquiries with Ms Shaw.

In awarding £19,500 for injury to feelings, whilst the tribunal noted that the harassment was “not of the worst type”, it also noted that Miss Southern was vulnerable, not only because of her young age and mental health issues, but also due to her status as a zero hours worker. The tribunal noted that Miss Southern felt trapped and fearful that her shifts might be reduced if she complained. Further, the harassment was made worse by the fact that it consisted of an abuse of power by a manager; and the tribunal also took into account the dismissive and dilatory approach taken by Britannia to the investigation.

Comment

If the employer had had a well drafted and properly implemented anti-discrimination and harassment policy, supported by appropriate training, the harassment might never have occurred in the first place – but if it had nevertheless occurred, it might have been dealt with more appropriately so that a statutory defence might have saved the employer (but not Mr Nkorol) from liability, or at least resulted in a lower award.

In any event, if the allegations had been properly investigated and upheld at an early stage, with appropriate disciplinary action being taken against Mr Nkorol, Miss Southern might not have been inclined to bring a claim, and if she had she would have been likely to have received much less by way of compensation.

As this case demonstrates, dealing with complaints of unlawful harassment is not straightforward. Whilst most employers would instruct specialist employment law advisers in the event of a tribunal claim, fewer do so in connection with internal grievance and disciplinary procedures. However, what many employers do not appreciate – until it is too late – is that the key to avoiding liability is that the people who deal with internal discrimination complaints (both investigators and decision makers) should be mindful of the standards and tests that would be applied by an employment tribunal when deciding whether there has been discrimination.

If you are an employer and would like assistance with the implementation of an anti-discrimination and harassment policy, dealing with a complaint of harassment or defending a tribunal claim, please contact me (tel: 01952 211 010; email john.merry@lblaw.co.uk) or Will Morse (T: 01432 377152; E: will.morse@lblaw.co.uk).