Sexual Harassment Case Management

A recent sexual harassment case Southern v. Britannia Hotels and Nkorol (in which a zero hours hotel worker was awarded £19,500 by an Employment Tribunal for injury to feelings following an eight month campaign of harassment by her manager), has highlighted again a number of common errors employers make when facing either suspected or formally reported cases of harassment by one employee against another employee.  

The fact that the woman in this case was a young, vulnerable person was certainly also considered by the tribunal and it should be noted that her status as a zero hours worker did not preclude her from the same protection as any of her permanently employed colleagues. The tribunal concluded that the employer hadn’t taken all reasonable steps to prevent the mistreatment, so its attempts to rely on the statutory defence to a claim for harassment failed.

Failure to take reasonable steps is a common failing amongst employers and it should be noted that having a grievance and/or harassment policy and conducting an investigation will not be enough, if there are fundamental flaws in the approach.

The facts of the Britannia case

The employee worked as a waitress in the hotel on a zero-hours contract.  She initially made a verbal complaint that her immediate line manager (Mr. Nkorol) spoke to her in an inappropriate way, asking repeated questions about her sex life. She was told to lodge a formal complaint. When she did not do so (for fear of getter fewer shifts), the employer took no further action.   Clearly the employer at this stage was aware of the complaint and should have moved to investigate whether a formal grievance was lodged or not.

Following a prolonged period during which Mr. Nkorol continued to make inappropriate sexual comments and physical advances towards the employee, she did finally make a formal complaint. The hotel manager conducted what is described as an ‘inadequate’ investigation and concluded that Mr. Nkorol had exhibited inappropriate ‘mannerisms and behaviour’, but took no further action against him.  The employee then lodged a claim for harassment at tribunal, at which stage the HR Manager undertook a second internal investigation.  Again, there were material deficiencies with this investigation, including a failure to read the previous investigation report.

The Tribunal upheld the employee’s claim. Her vulnerable employment status, age and mental health prompted the Tribunal to increase the size of the compensation and awarded £19,500 injury to feelings, for which both the employer and Mr. Nkorol were jointly and severally liable.   This is a useful reminder that individual harassers can be personally liable as well as the employer, a fact that employers may wish to highlight when giving training on this issue.

A number of other cases from recent years, including those heard in NI, are brought to mind when considering the recent Britannia case, often also involving  situations where the employers were aware of inappropriate verbal and / or physical behaviour and failed to act initially, or if they did act, their approach was deemed to fall significantly short of sufficient in protecting the employee.   The Equality Commission highlights such cases to warn employers of the perils of failing to implement a  sufficient approach.

Lessons for Employers

As an absolute minimum, most employers are aware that they should conduct regular training for all employees on the principle of dignity at work and specifically what constitutes bullying and harassment and what consequences employees can expect for engaging in inappropriate behaviour.

Unfortunately, even following such training, many employees simply do not cease to engage in behaviour which can be defined as sexual harassment.  It is because of this that employers will often   seek to defend their position (and vicarious liability) by relying on the statutory defence that they took all reasonable steps to prevent the sexual discrimination happening. 

A clear message from taken from these cases is that an employer who conducts annual training, has a clear policy and conducts an investigation, may still be deemed liable, if the approach is flawed.

• Consider precautionary suspension or separation of parties pending investigation and disciplinary action. The NI tribunal have considered failure to do so (in certain circumstances where allegations of verbal / physical harassment are made) a clear failure on the employer’s part to preserve the integrity of the investigation, protect the employee and to treat the matter with appropriate seriousness, thus amounting to breach of contract.
• Conduct a thorough investigation. The fact that senior members of staff separately failed to conduct a proper investigation in the Britannia case clearly went against the employer. The failure to suspend Mr. Nkorol (which would have preserved the integrity of the investigation) or indeed take any disciplinary action against him were factors that prevented the employer from relying on the statutory defence.
• Requests by the alleged victim to keep things informal / low key, may not be upheld.  It is quite common for employees to state their concerns about the formality of investigations when making a serious allegation, as occurred in the Britannia case because the victim was worried her shifts would be cut by her manager.  However, where potentially serious allegations have been raised, as happened in this case, employers may well have to take formal action in order to later rely on the statutory defense of having taken reasonable steps to prevent sexual discrimination from happening.
• Impact versus Intention.  Even when the intention is described as harmless fun or banter, the recipient may feel rather differently and is entitled to do so.  If behaviour could reasonably be defined as sexual harassment, then it should be regarded as such, regardless of the intention. 
• Prompt and detailed communication.  During investigation and following any action, it is important to maintain detailed and prompt communication with the alleged victim.  If they are not made aware of action being taken (the precise detail may be withheld), they may be justified in assuming a failure to be taken seriously or that action has not been taken appropriately.  This may add to the case for breach of contract.
• Consider the environment in which the alleged victim has to work. It is unacceptable to allow an employee to go back into a situation where further harassment is a real possibility.  It has been described by the NI Tribunal as a simple matter of meeting the employee to talk through their anxieties about the ongoing working environment and taking appropriate and reasonable action.
• Written policies are the start, not the end. Employers are advised to closely follow their own written anti-harassment policies, take immediate and appropriate action as soon as an issue comes to the attention of the employer, ensure adequate staff training and provide regular reminders.