In a case involving Britannia Hotels earlier this year a waitress employed on a zero hours contact was awarded £19,500 in damages for injury to feelings after being harassed at work by her line manager. This case raises no new legal issues but serves as a good reminder to employers of the ongoing obligation to monitor harassment in the workplace.
The worker was frequently asked questions by her manager about her sex life and there were allegations of inappropriate touching and attempts to kiss her over a period of 8 months. Initially the worker did not make a complaint because she was worried that it would affect the number of shifts that she was offered.
When a formal complaint was lodged, this was investigated, but only in a cursory fashion; one witness who came forward was only interviewed for 10 minutes. As a result the hotel manager concluded in writing to the worker that certain “mannerisms and behaviours” towards her had been inappropriate, but the manager involved was not disciplined and was merely asked to desist from such behaviour.
A second internal investigation was carried out after the worker issued a complaint in the Employment Tribunal, although the manager continued to deny the allegations and the witness evaporated. The HR Manager, who did not read the papers from the previous investigation and was not therefore aware of the inconsistency, stated that there was “no conclusive evidence” of harassment and simply required the line manager to attend a bullying and harassment course.
The Employment Tribunal decided that the manager had harassed the applicant and that Britiannia Hotels were vicariously liable for this, being unable to avail itself of the statutory defence.
Points for employers to note
Zero hours contracts (where the employer is not obliged to provide minimum working hours and the worker is not obliged to accept work offered) are used extensively in the hospitality industry where staffing requirements vary. It is important to remember that most zero hours contracts give staff ‘worker’ employment status and the same employment rights as regular workers, including protection from discrimination.
The fact that the applicant was on a zero hours contract was not legally relevant in this case, although she maintained that she did not report the harassment earlier because she feared that her shifts would be reduced if she did. This would clearly not have been a concern for a worker on fixed hours. There was no evidence that she was disadvantaged in relation to her shifts in this case – however, perception of potential detrimental treatment is a point to be conscious of in an industry where zero hours contracts are common place.
Protection from Harassment
The Equality Act 2010 applies to all workers, including those employed on zero hours contracts. Workers are protected from discrimination at work including harassment related to a protected characteristic; age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.
Vicarious Liability
An employer is vicariously liable for the acts of its employees unless the employer can show that it took all reasonable steps to prevent the employee from engaging in a discriminatory act. In this case the hotel was liable for the sexual harassment carried out by its manager. The court decided that the hotel and the manager had joint liability for the award of £19,500 to Ms Southern.
Reasonable Steps Defence
The Equality Act gives an employer a defence to a claim of harassment by an employee if the employer can show that it took all reasonable steps to prevent the discriminatory act. It is important that these steps are taken before the discriminatory action takes place. Therefore employers need to:
- Ensure that they have anti discrimination policies in place
- If the defence is to be successful, the policies need to be regularly reviewed and implemented
- It is not a defence to have a policy if it is not properly followed
- Staff must be aware of company policies – don’t tuck them away in a drawer
- There must also be an ongoing training programme for staff
- There must be a robust grievance procedure which is operated effectively.
In the Britannia case although there was an equality policy and a grievance procedure the investigation was described by the court as “wholly deficient” and the manager was neither suspended during the investigation nor disciplined despite the findings.
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Avoiding discrimination in the workplace – read about age discrimination HERE
