Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McAleenon v Autism Initiatives NI [2013] NIIT 00815_12IT (09 April 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/815_12IT.html
Cite as: [2013] NIIT 00815_12IT, [2013] NIIT 815_12IT
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 815/12
CLAIMANT: Noeleen McAleenon
RESPONDENT: Autism Initiatives NI
DECISION
The unanimous decision of the tribunal is that the claimant was discriminated against on grounds of sex and is awarded compensation in the sum of £12,293.00.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Members: Mr A Ebrahim
Mrs V Walker
Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Mrs O Ferrity of the Equality Commission for Northern Ireland.
The respondent was represented by Mr T Sheridan of Peninsula Business Services Limited.
THE CLAIM
1. The claimant claimed sex discrimination in the form of, firstly, sexual harassment and, secondly, that she was constructively dismissed and that this constituted sex discrimination.
2. The respondent raised the employer’s defence in relation to the sexual harassment claim and denied the dismissal claim.
ISSUES
3. The issues for the tribunal were as follows:-
(1) 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 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.
(2) Was there a fundamental breach of the implied term of trust and confidence which warranted the resignation of the claimant? Did the claimant leave in response to the breach and did she delay in resigning?
(3) Financial loss was agreed in the sum of £5,077.90. The claimant made no claim for future loss. The claimant claimed injury to feelings and damages for psychiatric injury.
THE LAW
4. The Sex Discrimination (NI) Order 1976 (as amended) at Article 6A provides a remedy for an employee who has been sexually harassed. By virtue of Article 42 an employer is vicariously liable for the acts of its employee unless the employer can satisfy the tribunal of the employer’s defence which states at Article 42(3) as follows:-
“(3) In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description”.
5. The leading case in the area of the employer’s defence is the case of Canniffe v East Riding of Yorkshire Council which sets out the approach for a tribunal to adopt in these cases as follows:-
“It may well be that on a proper consideration it will be found that there was nothing more that was reasonably practicable that this Respondent could have done, but we are not satisfied at the moment that the proper test was applied, which is, as we have indicated, a test which involves the questions:-
(1) what steps were taken?
(2) were there any further steps that were reasonably practicable that should have been taken and could have been taken by the Respondent?
and in that
context and that context alone, it would be relevant to ask whether any such
further steps would have been of any consequence or have had any realistic
chance of success. But even if they had not had any realistic chance of
success, if in fact it was reasonably practicable for them to be done, they
should have been done. That is the purpose of this legislation, and that is
the difficult eye of the needle through which a Respondent employer who seeks
to avoid a vicarious liability must travel in order to avoid that liability.”
(Paragraph 22.)
6. The burden of proving the employer’s defence is on the employer.
7. The respondent referred the tribunal to the case of Caspersz v Ministry of Defence [2006] UKEAT 0599.
8. The net effect of the authorities is that it is for the tribunal to decide on the facts whether the employer has proved that it took such steps as were reasonably practicable in the circumstances to prevent the employee from doing that act or acts of that description.
9. In the Vento case the Court of Appeal gave guidance on the assessment of damages for injury to feelings. In the decision the Court of Appeal cited with approval the summary of the general principles on compensation for non-pecuniary loss which were outlined in the case of Prison Service v Johnson [1997] ICR 275 by the EAT.
10. The guidance by the Court of Appeal on valuation states as follows:
“Employment tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings as distinct from compensation for psychiatric or similar personal injury.
(1) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race…Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.
(2) The middle band between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.
(3) Awards of between £500 and £5,000 are appropriate for less serious cases such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether as the risk being regarded as so low as not to be a proper recognition of injury to feelings.
There is of course within each band considerable flexibility allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case. The decision whether or not to award aggravated damages and if so what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.
Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for no pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage. In particular double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each case.”
11. The Vento bands were reconsidered by the EAT in Da’Bell v National Society for the Prevention of Cruelty to Children EAT 0227/09. The current middle and upper bands are £6,000 to £18,000 and £18,000 to £30,000.
12. In Harvey guidance in sexual harassment cases is cited from the case of Whitley v Thompson EAT 1167/97 as follows:
“(1) A characteristic of harassment is that it undermines the victim’s dignity at work and constitutes a detriment on the grounds of sex; lack of intent is not a defence.
(2) The words or conduct must be unwelcome to the victim and it is for her to decide what is acceptable or offensive. The question is not what (objectively) the tribunal would or would not find offensive.
(3) The tribunal should not carve up a course of conduct into individual incidents and measure the detriment from each; once unwelcome sexual interest has been displayed, the victim may be bothered by further incidents which, in a different context, would appear unobjectionable.
(4) In deciding whether something is unwelcome, there can be difficult factual questions for a tribunal; some conduct (eg sexual touching) may be so clearly unwanted that the woman does not have to object to it expressly in advance. At the other end of the scale is conduct which normally a person would be unduly sensitive to object to, but because it is for the individual to set the parameters, the question becomes whether that individual has made it clear that she finds that conduct unacceptable. Provided that that objection would be clear to a reasonable person, any repetition will generally constitute harassment.”
13. The case of Western Excavating – v- Sharp Limited 1978 IRLR 27 outlines the four key elements of constructive dismissal which the claimant must prove as follows:-
(i) There must be a breach of contract by the employer;
(ii) The breach must be sufficiently serious to justify the employee resigning;
(iii) The claimant must leave in response to the breach and not for some other unconnected reason; and
(iv) The employee must not delay too long in terminating the contract in response to the employer’s breach as otherwise she may be deemed to have waived the breach of contract.
14. As regards the delay point there is no fixed time within which an employee must make up her mind to resign in response to a breach of contract; the surrounding circumstances are key.
15. The case of Malik [1997] 3 All ER 1 confirms that there is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee. If the employer breaches that term, it can amount to repudiation of the contract.
16. In a claim for psychiatric injury it is for the claimant to prove her loss on a balance of probabilities. The assessment of compensation is on tortious principles.
17. In relation to the failure of the respondent to call relevant witnesses, Miss Bradley referred the tribunal to the Northern Ireland Court of Appeal decision of Lynch v MOD [1983] NI 216, where dicta in a case of O’Donnell v Reichard [1975] VR 916 which stated as follows:-
“… Where a party without explanation fails to call as a witness a person whom he might be expected to call, if that person’s evidence would be favourable to him, then although the jury may not treat as evidence what they may, as a matter of speculation, think that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that person’s evidence would not have helped that party’s case; if the jury drew that inference, then they may properly take it into account against the party in question for the purposes, namely:-
(a) in deciding whether to accept any particular evidence which has in fact been given either for or against that person and which relates to a matter with respect to which the person not called as a witness could have spoken; and
(b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.”
SOURCES OF EVIDENCE
18. The tribunal had written and oral evidence from the claimant on her own behalf. The tribunal also heard from Chris Sinnerton on behalf of the claimant and had the oral evidence and report of the Consultant Psychologist, Dr McCartan. The tribunal also had written and oral evidence from Paula Barker, a Service Co-ordinator; Claire Murtagh, a Team Leader; and Claire Hall, a Senior Support Worker on behalf of the respondent.
19. The tribunal also had regard to the documents or portions of documents to which it was referred.
FINDINGS OF FACT AND CONCLUSIONS
20. The tribunal took account of all the evidence, both written, oral and documentary in finding the following facts proved on a balance of probabilities. The tribunal applied the legal principles to the facts found in order to reach the following conclusions.
21. The claimant was employed as a support worker by the respondent from 1 August 2010 until she resigned on 30 April 2012. During the period relevant to these proceedings she was based at the Glen Road premises.
22. The respondent provides residential care at its Glen Road premises for service users with complex needs due to their autism. Employees were required on occasion to work night or day shifts with the beginning and end of their shifts notified to them by way of weekly rotas.
23. The respondent's Dignity at Work Policy (DWP) provides where relevant as follows:
(1) “Examples of Harassment
Harassment takes many forms; from relatively mild banter to actual physical violence. Employees may not always realise that their behaviour constitutes harassment, but they must recognise that what is acceptable to one employee may not be acceptable to another. Determining what is acceptable is an individual right that we must all respect.”
(2) “The following are some examples of inappropriate behaviour which may constitute sexual harassment. These examples are illustrative but not exhaustive:
· Physical conduce (sic) of a sexual nature, eg unwanted physical contact such as unnecessary touching, patting or pinching or brushing against another employee’s body.”
(3) “How does Sexual Harassment and Harassment differ from Friendly Workplace Banter?
It is the unwanted nature of the conduct which distinguishes sexual harassment and harassment from friendly behaviour which is mutual and welcome. It is up to each employee to decide what behaviour is unwelcome, irrespective of the attitude of others, and from whom such behaviour is unwelcome. The fact that the employee has previously tolerated the behaviour does not stop him/her from objecting to it now.
Is Motive relevant?
The intention of the person engaging in the unwelcome behaviour is irrelevant – the effect of the behaviour on the employee concerned is what is important.”
(4) “Managers and Team leaders should:
Be vigilant for signs of bullying and harassment and intervene before a problem escalates.”
24. The first key period relevant to these proceedings occurred between 20 January 2012 and 9 February 2012 when there were various incidents involving Mr Wilmot's behaviour towards the claimant, which later formed the subject of disciplinary proceedings against him. Before this period the claimant had had little contact with Mr Wilmot but this changed when they worked the night shift together. On the night shift they were the only two members of staff on 'waking duty' which meant for practical purposes that the claimant was working alone with Mr Wilmot.
25. On 10 February 2012 the claimant was informed that she was suspended from work pending investigation of an allegation that she was sleeping on duty. This was confirmed by letter of 14 February 2012. The outcome of that disciplinary process was that the allegation was found to be unsubstantiated and that was communicated to the claimant by letter of 5 March 2012.
26. The claimant then rang the office to see what shifts she would be working when she would return to work on 19 March 2012 and she found that she would be working alongside Mr Wilmot again. This prompted the clamant to lodge a grievance letter on 16 March 2012 outlining the incidents which had occurred in January/February.
27. Miss Barker, received the grievance letter on 21 March 2012 and immediately contacted the claimant to try to arrange to meet her. The meeting was slightly delayed at the claimant’s request and took place on 26 March 2012. The respondent moved with reasonable speed to arrange the meeting and we do not criticise them over the speed of their reaction to the allegations.
28. On 26 March Mr Wilmot was also interviewed in relation to the allegations and a grievance report was produced by Miss Barker on 29 March 2012 recommending that he be the subject of disciplinary proceedings as the incidents amounted to sexual harassment. We have no criticism of the investigatory process save for our reservations about the fact that the alleged harasser was not suspended.
29. 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' and 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.
30. He described this as done 'in fun' and banter with no malice but admitted that some behaviour was inappropriate.
31. The investigation took approximately 3 weeks from receipt of the grievance. We do not criticise the speed of the investigation. Two identical grievance outcome letters were sent to the claimant on 6 April 2012 and 30 April 2012 and in both letters it was indicated that Mr Wilmot was going to be disciplined. The second letter appears to have been in response to the claimant's enquiries about what was happening (see below). This was an inadequate response to the claimant's anxious enquiries. We would have expected the respondent to have been more proactive in reassuring the claimant by, for example, meeting her to work out an acceptable way forward so that she would be confident about returning to the workplace. This could have seen done without encroaching on confidentiality or data protection issues involving Mr Wilmot.
32. Mr Wilmot was invited by letter of 6 April to a disciplinary hearing which took place on 17 April and led to a disciplinary report dated 24 April.
33. On 11 April and 18 April the claimant rang HR to see what measures were being put in place to protect her from contact with Mr Wilmot and, despite a promise that she would receive a letter within two days of her second telephone call, she heard nothing from HR in relation to the progress of the disciplinary proceedings against Mr Wilmot and in relation to the measures to be taken to protect her from a repetition of his behaviour.
34. Unknown to the claimant a disciplinary report was produced on 25 April 2012 which recommended a written warning. In that report it was noted that Mr Wilmot had failed to take the proceedings seriously as follows:
“I wish to record my view that RW did not appear to take this process seriously. He entered the room stating in a jocular manner “hello I am the accused” and when the allegations were specifically put to him, he giggled.”
35. As the claimant had not heard from the respondent she decided that she could no longer work for the respondent and tendered her resignation letter dated 30 April 2012 by e-mail. The reasons the claimant gave for deciding to resign were that she was unaware of what was happening in the disciplinary procedure and was unaware of any action taken by the respondent against Mr Wilmot. Her main concern was that she felt that she would not be safe going into work and she had received no information on the measures to be put in place for her return to work. We accept the claimant’s evidence that this was her reasoning behind her complaint of lack of contact in the resignation letter of 30 April 2012
36. The letter informing Mr Wilmot that he was found guilty of the disciplinary offence and would receive a sanction of a written warning for 12 months, was dated 30 April 2012. At no stage was the claimant informed of the sanction imposed although she deduced from the fact that Mr Wilmot was still at work that he had not been dismissed.
37. In the claimant’s resignation letter of 30 April 2012 she cited a fundamental breach in contract and outlined the lack of contact from HR despite her repeated attempts to ascertain the position following her grievance having been upheld.
38. In evidence the claimant stated that one of the concerns leading to her resignation was that she did not know what measures had been put in place to safeguard her from any further unwanted attention from Mr Wilmot. Even after the resignation letter was received, the respondent asked the claimant to reconsider the letter of 1 May responding to that letter stated as follows:-
“We will endeavour to make every effort to ensure that you do not work with the employee concerned.”
We find this to be a vague and inadequate response and it did not provide enough reassurance to the claimant. The respondent should have offered before this to meet her to hammer out a way forward as soon as the grievance was found to be substantiated against the harasser.
39. The employer’s defence relates to the acts of harassment which were found proven against Mr Wilmot. We do not accept that the respondent has proved that it took such steps as were reasonably practicable to ensure that the acts of discrimination do not occur. The respondent had a Dignity at Work Policy (DWP) which was shown to members of staff when they first joined and when they moved premises. That was insufficient in this case in circumstances where it was well-known by staff and managers that the harasser engaged in inappropriate physical contact on a regular basis. It appears that it was his habit to hug members of staff on a regular basis. Indeed Mr Wilmot appears to have been unabashed about the fact that he made jokes and was ‘a huggy person’. It appeared from the documentation shown to us that he did not seem to see anything inappropriate about some of his behaviour and, as a result, did not seem to take the disciplinary process seriously: indeed this was recorded in the disciplinary outcome. It was also known that he avoided cooking duties and it appears to have been well-known that he made jokes about a woman’s role in that regard.
40. 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 claimant engaged in jokes, banter and hugging which could have amounted to sexual harassment depending on the circumstances and the response of the victim. The fact that Mr Wilmot appears to have been well-known as what was termed 'a huggy person' should have rung alarm bells with the team leader and senior support worker. Under the DWP there was a proactive duty on managers to intervene before problems escalated. The opportunity could, and should, have been taken to remind Mr Wilmot of his obligations under the DWP to ensure that it did not escalate into behaviour which would constitute sexual harassment in any circumstances namely in particular, patting the claimant on the bottom and an uninvited enquiry about her sex life.
41. We wish to record that we reject the claimant’s representative’s assertion that a previous incident involving a rude gesture made by Mr Wilmot to a resident, was of the same nature and character as the behaviour Mr Wilmot displayed towards the claimant.
42. In submissions Mr Sheridan made the point that that claimant could and should have complained after the first incident of harassment and if she had done so that the other seven incidents would not have occurred. When pressed by the Chairman Mr Sheridan confirmed that he was not raising some sort of contributory fault point nor was he seeking to minimise the behaviour which had been found proven. In these circumstances the fact that the claimant did not complain earlier does not have a bearing on whether or not the employer’s defence is made out in the circumstances outlined above where managers were well aware of his inappropriate behaviour and where Mr Wilmot admitted the behaviour put to him following the claimant’s grievance.
43. A point was made during the hearing that the claimant appeared to have an ulterior motive for raising a grievance against Mr Wilmot. We discounted any allusion to this as: firstly, it amounted to hearsay because none of the witnesses who referred to that motive in their statements witnessed the alleged incident grounding the allegation; secondly, they were reporting what Mr Wilmot had told them someone had told him and he had a clear motive to impugn the integrity of the claimant; and thirdly, the claimant denied the allegation. Even if the allegation were true, the motivation of the claimant in raising the grievance is irrelevant in circumstances where the alleged harasser admitted the acts he was accused of and was disciplined because of them. Indeed we found the inclusion of this allegation in the statements as an aggravating factor in the assessment of compensation.
44. As the employer’s defence has failed the employer is vicariously liable for the acts of Mr Wilmot in harassing the claimant between 20 January and 9 February 2012.
45. The second limb of the claimant’s claim relates to the resignation which she alleges amounted to constructive dismissal on grounds of sex.
46. The main points of the claimant’s claim in this regard are:
(1) That Mr Wilmot was not suspended during the investigation (in contrast to the claimant who was suspended for the 6 weeks of the investigation into the allegation of sleeping on duty);
(2) That insufficient measures were put in place to ensure that she would not have contact with Mr Wilmot during the investigation of her grievance and the disciplinary process;
(3) The claimant previously had experience of a grievance which she raised which was inadequately and slowly dealt with by the respondent so this dented her confidence in the respondent’s willingness to deal with issues.
(4) That there was a lack of information emanating from the employer over a period when they knew that the disciplinary charges had been found proven and they could have liaised with the claimant to ensure that she was satisfied with the measures they proposed to put in place to protect her from a repetition of the behaviour. Whilst the claimant did not know the sanction imposed she knew that Mr Wilmot had not been sacked and therefore feared that she would come into contact with him again as she regarded the 15 minute gap between shifts as inadequate.
47. The combination of the above factors led to the claimant resigning as she had lost faith in the employer. The term in issue is the implied term of trust and confidence in the contract.
48. The respondent defended the constructive dismissal claim on the basis that the claimant did not give the respondent enough of a chance to do anything and the measures put in place were sufficient in that in practice there had been no overlap of shifts between the claimant and Mr Wilmot. The respondent argued that as the claimant did not know the sanction imposed until after she resigned, this could not have formed part of the reasoning behind her decision to resign.
49. The question for the panel is whether the alleged deficiencies amount to a fundamental breach of contract leading to the claimant being justified in resigning. We found this to be a finely balanced case. However we find that the claimant has discharged the burden of proving that there was a fundamental breach of contract which was sufficiently serious to justify her in tendering her resignation. The following are our principal reasons for so finding:
(1) We are surprised that the respondent did not suspend Mr Wilmot pending the investigation and disciplinary process. If he had been suspended the major reason for the claimant’s anxiety about returning to work with him would have been removed.
(2) The lack of detailed prompt communication with the claimant was particularly serious in this case where the allegation and admission was of physical contact with the claimant. No reason was put forward for the lack of detailed prompted communication. In this regard we note that neither Ms Nellis nor Ms Magee, both of whom wrote key letters and appear to have made key decisions, appeared to give evidence before us. We draw the inference that their evidence would not have been helpful to the respondent.
(3) The claimant was in danger of going back into a situation where physical contact with sexual overtones was a real possibility. In these circumstances we do not find the 15 minute gap between shifts to be enough particularly where the option of suspension was open to the respondent. On the timesheets we were shown, there was clearly flexibility about the start and end times of shifts. It was open to the respondent to have a greater gap between the shifts. The fact that there was no overlap in practice in the initial weeks was no guarantee that there would be no overlap in the future and we find the claimant’s anxiety in this regard to be justified.
(4) The claimant’s evidence was that she had made clear that she did not welcome the hugging from Mr Wilmot. Her evidence was corroborated by Mr Sinerton who appeared to be a reluctant witness for the claimant yet he confirmed that he witnessed her being hugged and her negative reaction to it.
(5) It would have been a simple matter for managers from personnel to meet the claimant to talk through her anxieties.
50. The accumulation of the above points made the breach of contract sufficiently serious in our judgment to justify the claimant resigning.
51. The only issue on the constructive dismissal which was tested in evidence was whether or not there was a sufficiently fundamental breach of contract. In submissions Mr Sheridan alluded to his belief that the claimant left for some other reason. As this was not put to the claimant in evidence and we heard no evidence in relation to this we have discounted that as part of the respondent’s case.
52. We do not consider that any gap between the non-receipt of a letter from personnel on 20 April 2012 and the claimant’s resignation letter on 30 April amounted to her waiving the breach. The claimant was waiting for a response to her legitimate enquiries and we can understand her anxiety about the possibility of encountering the harasser in circumstances where the reporting of incidents could mean that there would be overlap between them despite the 15 minute gap between shifts.
53. The respondent wrote on 14 May to the claimant asking her to reconsider her resignation and inviting her to a discussion about measures to support and safeguard her. Despite finding that the claimant had been harassed, Ms Nellis stated the following in that letter:
“We have upheld your grievance as the other employee admitted some elements of your complaint but confirmed that he did not know that his actions were unwelcome and instead indicates that hugs were mutual.”
54. This paragraph appears to minimise the harassment and suggests to us that there was a lack of appreciation of the gravity of a situation where an employee was liable to be subjected to unwanted touching.
55. The detail in the letter of 14 May could and should have been communicated to the claimant before that date as 19 days had elapsed from the decision to give the harasser a written warning and 46 days had elapsed from the date the investigation found that harassment had occurred. There was added urgency about this matter because the harasser had not been suspended which we find surprising. If he had been suspended the claimant would have been spared the anxiety of wondering whether she would encounter him.
56. The employer’s defence is not relevant to the issue of whether or not the resignation amounted to constructive dismissal tainted by sex discrimination. We find that the constructive dismissal was bound up with the harassment complaint and thus amounted to an act of sex discrimination and was unfair.
COMPENSATION
Injury to Feelings
57. Whilst the harassment took place over a relatively short period of 20 days and the respondent reacted promptly to the claimant’s complaint and moved to rearrange shifts to minimise the chance of contact with the alleged harasser, we find that this is a case which falls within the middle band of Vento for the following principal reasons:-
(1) The harassment occurred on the nightshift when the claimant was essentially working on her own with the harasser.
(2) The harassment involved physical contact rather than simply banter which went too far.
(3) The harasser was not suspended despite the respondent’s power to do so. This surprised us given that the allegation involved physical contact which potentially brought the allegations within the realm of gross misconduct.
(4) The claimant ultimately lost her job because of the inadequate actions of the respondent.
(5) Ms Neills in her letter of 14 May appeared to minimise the allegations by making reference to hugs that were “mutual”.
(6) At hearing before us some witnesses referred to an alleged negative motivation on the part of the claimant in making her complaint. This was irrelevant in circumstances where the harasser accepted key facts and accepted that some of his behaviour was inappropriate and where the respondent found the behaviour to amount to sexual harassment.
58. Taking account of all the above factors we assess compensation for injury to feelings in the sum of £6,000.00.
Psychiatric Injury
59. The claimant has tendered insufficient evidence to ground a claim for psychiatric injury. We would have expected to see the GP notes and records and some proof of attendance with the claimant’s GP in relation to her alleged psychiatric sequelae.
60. The lack of GP records was pointed out during the unfolding of the evidence.
61. In the psychologist’s report the claimant alleged that she developed an aversion to working alongside men, whether as colleagues or clients, and that this led to her resigning her job with a solicitor’s firm after one month. At the time of the report this had developed into a fear of all men. This is an unusual and strong allegation and we would have expected some supporting evidence in relation to it. The psychologist’s report was compiled without reference to the GP notes and records which we find to be unusual. The psychologist therefore gave no opinion on the connection, if any, between the claimant’s attendance, or lack of attendance at her GP, on the one hand, and on the other hand her complaint of psychiatric injury flowing from the discriminatory acts. The psychologist also gave no opinion on the effect, if any, of the other major stressful factors in the claimant's life, on her psychiatric state.
62. The psychologist essentially repeats the account given to her by the claimant and makes reference to other incidents in the claimant’s life which might have had a bearing on her psychological state but expresses no opinion on that.
63. It is for the claimant to prove her loss and that it flows from the acts of the employer and we find that she has provided insufficient evidence, other than a bare allegation, to support the allegation of psychiatric injury to the extent that she claims £9,000.00. We therefore award no compensation under that heading.
INTEREST
64. We consider that interest should be awarded on compensation in the usual way and that interest calculation is set out below.
SUMMARY
65. The respondent has failed to make out the employer’s defence and is therefore vicariously liable for the actions of its employee in sexually harassing the claimant between 20 January 2012 and 9 February 2012. This case illustrates the danger of an 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 proactive duty on employers to intervene in such circumstances to ensure that policies are being adhered to in practice as it is well recognised that it can be difficult for a woman to raise a complaint about behaviour she finds unwelcome or offensive especially if there is a prevailing culture of acceptance of such behaviour.
66. The resignation did amount to a dismissal which was unfair and it amounted to an act of sex discrimination.
67. The calculation of compensation is set out below:
|
|
Date of Dismissal: |
30 April 2012 |
|
||
|
|
|
|
|
||
|
|
Date of Calculation: |
9 April 2013 |
|
||
|
|
|
|
|
||
|
|
Interest Rate: |
8% per annum |
|
||
|
|
(figures rounded) |
|
|
||
|
|
|
|
|
||
|
|
(1) |
Basic Award: (agreed and rounded) |
£260.00 |
|
|
|
|
|
|
|
|
|
|
|
(2) |
Compensatory Award: |
|
|
|
|
|
|
|
|
|
|
|
|
|
- |
Loss Statutory Industrial Rights: |
£300.00 |
|
|
|
|
|
|
|
|
|
|
|
- |
Loss wage: |
£5,077.90 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- |
Interest on Compensatory Award (24.5 weeks at 8% pa): |
£203.00 |
|
|
|
|
|
|
|
|
|
|
(3) |
Injury to feelings: |
£6,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
- |
Interest (49 weeks at 8% pa): |
£452.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total: (rounded) |
£12,293.00 |
|
|
|
|
|
|
|
|
|
68. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4-6 March 2013, Belfast.
Date decision recorded in register and issued to parties: