Review of Recent NI Tribunal Decisions: Harassment and Sex Discrimination

Today's article covers two recent Tribunal decisions involving harassment and sex discrimination claims.

In the first case, the Tribunal accepted that the comments complained of had in fact been made. It did not consider that they objectively amounted to harassment but awarded £7,500 injury to feelings for discrimination on grounds of pregnancy in relation to dismissal.

In the second case, the Tribunal found that the employer had not taken such steps as were reasonably practicable to prevent sexual harassment and made some useful comments in relation to the operation of the statutory defence. The Tribunal awarded £6,000 injury to feelings in addition to upholding the Claimant’s constructive dismissal complaint.

Worthingtons Solicitors review recent Industrial Tribunal decisions on harassment and sex discrimination.

Lindzi Close v Belfast Audi Limited Case Reference 2966/11 IT

An Industrial Tribunal has awarded a Claimant £12,521.56 on the grounds that she was subjected to unlawful sex discrimination on the grounds of her pregnancy and was unfairly dismissed.

In the case of Lindzi Close v Belfast Audi Limited Case Reference 2966/11 IT The Claimant was employed by Belfast Audi as a Used Car Administrator from October 2010 until her dismissal in October 2011. In January 2011 the Claimant unfortunately suffered a miscarriage when she was ten weeks pregnant.  She took one week’s sickness absence, despite her doctor having advised her to take at least three weeks, and returned to work on 24th January 2011. During a daily meeting with her Line Manager, the Claimant’s Line Manager was alleged to have asked the Claimant “Are you sure that’s what happened and you didn’t just want a week off?” and went on to suggest to the Claimant that she should drink less coke, eat fewer fries and that she should do more exercise.  In her evidence to the Tribunal, the Claimant stated that these comments made her feel that the miscarriage had been her own fault because she was overweight. The Claimant’s Line Manager denied that he had made these statements.  However, under cross-examination he admitted to having discussed the amount of coke that the Claimant had been drinking, having initially denied this in his evidence in chief.  Whilst the Tribunal held that they preferred the more “consistent” evidence of the Claimant in relation to the comments as claimed, it found that when assessed objectively in the particular circumstances of the case; the comments did not have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her and therefore the claim of unlawful harassment was ultimately dismissed.

The Claimant’s Line Manager was also alleged to have commented to the Claimant that she should wear more make up as it had a positive effect on her appearance.  The Claimant’s Line Manager again denied making the comment.  The Tribunal considered this comment to be “gratuitous and offensive” but dismissed the claim of unlawful harassment on the basis that this particular claim had been lodged out of time and the Claimant had not raised a grievance in this regard, as required by the statutory grievance procedures which were in force at that time.

The Tribunal also dismissed a claim of unlawful victimisation. The Claimant discovered she was pregnant again in June 2011.  At this stage she was off on annual leave as she was getting married around this time.  She was unable to return to work on the agreed date due to a pregnancy related illness and remained on sick leave until 5th September 2011. On her return to work the Claimant was invited to a probationary review/disciplinary meeting to discuss issues that had arisen in relation to her files and paperwork from an audit in August 2011 (when she had been off ill).  The Claimant was ultimately dismissed on 18th October 2011 after a probationary/disciplinary process. The Claimant’s dismissal was automatically unfair as the Respondent did not comply with the statutory dismissal and disciplinary procedures.  The Claimant was not notified of her right to appeal against the dismissal decision.  Furthermore the Tribunal held that the Claimant’s dismissal was unfair as it was for a “discriminatory reason” which “related to the Claimant’s pregnancy”.  

From the facts presented to them, the Tribunal could not conclude that the Respondent had reasonably decided that the Claimant was incompetent or that the procedures it adopted were reasonable in all the circumstances.  It was noted that salesmen had clearly not been completing the files in accordance with Audi standards and that the respondent did not give any consideration at all as to whether any disciplinary or other action should be taken to address this deficiency in performance.  It appeared to the Tribunal that the Respondent was predisposed to dismiss the Claimant once the eight files in question had been discovered. The Tribunal concluded that the Respondent did unlawfully discriminate against the Claimant on grounds of her pregnancy in dismissing her.  The Claimant was awarded £3949.57 compensation for unfair dismissal and an injury to feelings award of £7,500.00 plus 8% interest.

Noeleen McAleenon v Autism Initiatives NI (Case Ref 815/12)

In another case involving allegations of sex discrimination, another female Claimant was awarded £12,293.00. Noeleen McAleenon v Autism Initiatives NI (Case Ref 815/12)

The Claimant was employed as a Support Worker by the Respondent (Autism Initiatives NI) from 2010-2012. As part of her job she was required to work on a night shift with a male employee, Mr Wilmot, against whom the Claimant had already raised several grievances. Mr Wilmot agreed that he did, or might have done, the following: tickling her feet, placing hands on her shoulders, hugging her, calling her ‘woman’, telling her to cook as: ‘that is woman’s work’, commenting on her appearance, leaning over her shoulder when she was working at the computer, poking her in the abdomen and ribs, asking about her sex life on one occasion, slapping her on the bottom on one occasion.  He described this as having been done in fun and banter, with no malice, but admitted that some behaviour was inappropriate.

Unknown to the claimant a disciplinary report was produced which recommended a written warning and which noted that Mr Wilmot had failed to take the disciplinary proceedings seriously. As the claimant had not heard from the respondent in relation to what was happening with the disciplinary proceedings or the measures to be put in place for her return to work, she decided that she could no longer work for the respondent and tendered her resignation. It was not in dispute that the claimant had suffered sexual harassment at the hands of a colleague who was ultimately disciplined by the respondent.  It was not disputed that the respondent was vicariously liable for the acts of that employee.  The dispute centred on whether or not the Claimant was entitled to consider herself constructively dismissed and whether the respondent had taken such steps as were reasonably practicable to prevent the discriminatory acts occurring in accordance with Article 42(3) of the Sex Discrimination Order 1976 as amended.  The Tribunal found that the Claimant was constructively unfairly dismissed and that the employer had not taken such steps so as to entitle it to avail of the statutory defence to the discrimination claim. Of the total sum awarded, £6,000 was awarded for injury to feelings.

The Tribunal highlighted the fact that “it is not enough for an employer to have a harassment policy, no matter how robust, without ensuring that it is actually carried out in practice and comprises part of the fabric of the organisation.”  In this case, senior members of staff were on notice that the harasser engaged in-jokes, banter and hugging which could have amounted to sexual harassment depending on the circumstances and response of the victim.  In circumstances where Mr Wilmot was well known within the organisation as what was termed “a huggy person” the Tribunal considered that the burden was even greater on the Respondent to prevent other staff feeling uncomfortable. Under the Respondent’s Dignity at Work Policy there was a proactive duty on managers to intervene before problems escalated. The Tribunal further pointed out that this case highlights the danger of any employer not being proactive in circumstances where members of staff are known to engage in physical contact; the invasion of someone’s space; and to engage in banter which could be construed as sexual harassment.

There is a duty on employer to intervene in such circumstances to ensure practices are being adhered to. The panel noted that it is well recognised that it can be difficult for a woman to raise a complaint about behaviour she finds unwelcome or offensive, especially where there is a prevailing culture of acceptance of such behaviour.