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28 April 2015

Zero hours worker: Significant award for injury to feelings

Under section 26(1) of the Equality Act 2010 (EqA 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. 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.

Facts

Miss Southern, who worked as a waitress in a hotel (Brittania) alleged she had been subject to harassment by her line manager, Alex Nkorol, over an eight month period.  Miss Southern, who was employed under a zero hours contract, was 22 at the time and had a history of mental health issues.

Miss Southern alleged that Mr Nkorol often asked to talk to her about matters relating to her sex life.  She was initially reluctant to complain for fear her hours would be reduced.  When she did complain, the line manager to whom she spoke told her to lodge a written complaint but took no further action.  The alleged conduct then worsened, with Mr Nkorel touching Miss Southern on the bottom, kissing her on the neck and making continued inappropriate comments about her personal life.

Miss Southern lodged a formal complaint, following which the hotel manager, Mr Whittaker, conducted only a cursory investigation.  Just ten minutes were spent interviewing a witness, Ms Shaw, who verified that Mr Nkorol touched Miss Southern’s bottom and kissed her neck.  Mr Nkorol denied the alleged conduct.  Mr Whittaker concluded that certain “mannerisms and behaviour” by another member of staff towards Miss Southern were inappropriate.  This, however, was not substantiated further, and no disciplinary action was taken against Mr Nkorol (although he was asked to desist from this type of behaviour).  Miss Southern lodged a claim for harassment in the Employment Tribunal, naming both Brittania and Mr Nkorol as respondents.

Brittania, following receipt of the claim, had the complaints re-investigated by a new HR manager, Ms Buck, who found that no harassment had taken place.  She had not read the papers relating to the first investigation and was therefore unaware of inconsistencies in the evidence of Ms Shaw.  Miss Southern appealed, unsuccessfully, against Ms Buck’s decision.

Decision

The tribunal concluded that Mr Nkorol had harassed Miss Southern and Brittania was vicariously liable for it.  It made an award of £19,500 for injury to feelings against both Britannia and Mr Nkorel.

Britannia could not avail itself of the statutory defence.  Miss Crann 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 had been wholly inadequate and flawed.  In the case of Mr Whittaker, he had failed to suspend Mr Nkorol (which would have protected the integrity of the investigation), had failed to follow up on potentially corroborating evidence and had failed to take disciplinary action against Mr Nkorol.

In setting the level of the award, the tribunal noted that Miss Southern 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.  Furthermore, the tribunal also took into account the dismissive and dilatory approach taken by Brittania to the investigation.  This aggravating feature was taken into account when setting the level of damages at £19,500.

Comment

This case is a useful illustration for employers of how not to conduct an investigation into discrimination allegations.  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 only alluded to briefly in the judgment, the Tribunal noted that Miss Southern felt trapped and fearful that her shifts might be reduced if she complained.  It may be that in future, tribunals will give more weight to the employment status and security of the claimant when considering to what extent they were vulnerable.