Zero hours hotel waitress awarded £19,500 for sexual harassment

Miss Southern worked as a waitress on a zero hours contract for Britannia Hotels Limited (Britannia).  Her line manager, Mr Nkorol, frequently asked her about her sex life.  When she complained to another manager, she was advised to lodge a written complaint, however she was afraid that her hours would be reduced if she did so, so didn’t submit one.

Mr Nkorol’s behaviour worsened.  He allegedly touched Miss Southern on the bottom, kissed her on the neck and stood behind her making “grinding” movements.  Miss Southern complained to a different manager.  She was again asked her to submit a formal complaint which she did, however the investigation was cursory and although a witness was identified, only ten minutes were spent interviewing her.  The manager concluded that “certain mannerisms and behaviour” by Mr Nkorol were inappropriate, however no disciplinary action was taken against him.

The tribunal held that Miss Southern had been harassed and that Britannia was liable for it.  Her managers knew about the harassment, but did nothing to stop it.  The company failed to suspend Mr Nkorol to protect the integrity of the investigation, did not follow up on potentially corroborating evidence and did not take disciplinary action against Mr Nkorol.

Miss Southern was awarded £19,500 for injury to feelings. The substantial size of the award reflected the fact that the harassment was made worse because it consisted of an abuse of power by Miss Southern’s manager.  It also reflected the dismissive attitude taken by Britannia towards the investigation.

This case is a good example of how not to conduct an investigation into allegations of harassment.  The investigations were woefully inadequate and the tribunal commented that Britannia “did not appear to have the slightest interest in getting to grips with what had actually happened”.

Unfair dismissal: employee’s admissions

In CRO Ports London Ltd v Wiltshire the Employment Appeal Tribunal considered whether an employer had acted reasonably when it relied on an employee’s admissions and limited the scope of its investigation into misconduct allegations.

Mr Wiltshire had worked for CRO Ports London Limited for over 20 years and supervised the lifting of large containers onto ships.  In January 2013, he was called to deal with a problem lifting a container.  A manager suggested he should go to the engineers to pick up “heavy duty twist locks”.  However, when Mr Wiltshire arrived at the scene, the team leader was already attempting to resolve the problem in the usual way, which involved placing a small piece of wood on top of the pin in order to twist it into place.  Mr Wiltshire allowed the driver to continue, however when the container was 20 feet above the ground, it fell from the crane.  Although no-one was hurt, the container was badly damaged and the incident could have caused a fatality.

As CRO had condoned the practice for a long time and Mr Wiltshire had a long, unblemished service record, Mr Wiltshire believed he would be given a written warning and took full responsibility for the incident. He admitted that his error was a dangerous act and accepted that he had previously supervised similar practice and that it breached health and safety rules.  He was dismissed for gross misconduct.

The Employment Tribunal upheld Mr Wiltshire’s unfair dismissal claim, however CRO’s appeal was upheld and the case was remitted to a fresh employment tribunal to be reheard.  The issue was whether CRO had acted reasonably by limiting the scope of its investigation in light of Mr Wiltshire’s admissions.  In many cases, an admission of misconduct means there is little point to the carrying out further detailed investigations.  However, in some cases, the admission may still leave important questions unanswered which require further investigation.

Constructive knowledge of disability

The duty to make “reasonable adjustments” for disabled employees is triggered when an employer has actual or constructive knowledge of an employee’s disability. In Donelien v Liberata UK Ltd the EAT considered whether an employer had constructive knowledge of a disability.

Ms Donelien worked for Liberata UK Limited.  She was frequently off sick and in the final year of her employment, she was absent for 128 days.  She gave numerous explanations for her absences, including viral infections, dizziness, head colds, wrist pain and stomach upsets.  On one occasion she gave no reason at all.

Ms Donelien was referred to Liberata’s occupational health service, however Ms Donelien would not allow them to contact her GP. The occupational health service concluded that she was not disabled.  Liberata had a number of meetings with Ms Donelien about her illnesses before she was dismissed for her persistent absences.

Ms Donelien brought an employment tribunal claim against Liberata, alleging that she had been disabled and it had not made reasonable adjustments for her.  It was agreed by all parties that although Ms Donelien had in fact been disabled at the time of her dismissal, Liberata had not known this.  The issue was whether Liberata had had constructive knowledge of her disability.

The EAT held that Liberata had not had constructive knowledge of Ms Donelien’s disability.  The company had done all it could reasonably be expected to do to discover any disability.  It has referred Ms Donelien to an occupational health adviser, held return to work meetings, engaged in discussions with Ms Donelien and reviewed correspondence from her GP before it decided that she was not disabled.

An employer does not need to take every step it could possibly take to discover an employee’s disability in order to avoid having constructive knowledge of it.  It is the employer’s actions as a whole that matter and each case will turn on its facts.

Employment Law Update May 2015