This recent Employment Appeal Tribunal ('EAT') case concerned a waitress at the Cadogan Hotel who was subjected to treatment by the head waiter which included touching her inappropriately, asking whether she had a boyfriend and approaching her with his trousers undone and saying “Do you want this body? Come on, you are a woman. You should want this body.”
The Employment Tribunal decided that this behaviour amounted to “mild sexual harassment” which had not gone beyond making Ms Ozog feeling “very uncomfortable”. On that basis the hotel was liable for the acts of the head waiter and Ms Ozog was entitled to be awarded damages for injury to feelings.
Generally speaking whilst damages for discrimination are uncapped, when assessing the amount of damages in discrimination cases Tribunals use the following “Vento” bands:
- £600 - £6,000 where cases are less serious or a “one off”
- £6,000 - £18,000 for cases which are more serious but do not merit an award in the top band
- £18,000 - £30,000 for the most serious cases where there has been a lengthy campaign of harassment
Even though the Tribunal considered the treatment complained of to be “mild” they awarded Ms Ozog £10,000 for injury to feelings. They also awarded 25% uplift as allowed for under the ACAS code for the hotel’s failure to deal with her grievance.
The hotel appealed and the EAT decided that the band used by the Tribunal was incorrect. Importantly the EAT stressed that the compensation awarded should not be a punishment for the employer but compensation for the employee’s treatment. The EAT substituted an award for £6,000. It also decided that as Ms Ozog’s grievance had not been set out in writing the uplift of 25% for a failure to follow the ACAS code should not have been made.
So far so good; however, the EAT then applied a 10% uplift to the award. This follows a ruling in a civil case which decided that certain compensation sums should be uplifted to reflect the fact that claimants in civil cases are now unable to recover success fees (such as those no win no fee cases). This is the first reported case of the 10% uplift being awarded in a discrimination case.
As employers are, in most cases, liable for the acts of their employees, in order to successfully defend a claim of harassment is it important that clear policies and procedures are implemented which demonstrate that this behaviour will not be tolerated and that staff are fully trained in what is, and what is not, acceptable workplace behaviour. Harassment cases are difficult and always fact sensitive and we urge employers to take advice when dealing with these cases.
If you would like to discuss any issues that you are facing or you would like our assistance in preparing policies or training your staff, please contact a member of the Employment team.