An Employment Tribunal recently adopted a bold approach to the assessment of an award for injury to feelings in the case of Southern v Britannia Hotels Limited which has some useful learning points for employers.
In this case a waitress who worked in a hotel was engaged under a zero hours contract. She was subjected to sexual harassment for approximately 8 months by her manager. She was 22 and had a history of mental health problems.
An investigation into claims of harassment, including being touched on her bottom, kissed on her neck and being subjected to inappropriate comments in relation to her personal life, was conducted by the employer. However, the Tribunal found that the investigation was cursory and that no disciplinary action was taken against the perpetrator of the harassment. A further investigation by the employer took place after the Tribunal claim was lodged.
The Tribunal were critical of the investigations that had taken place for a number of reasons including that there had been no suspension of the alleged perpetrator; there had been a failure to follow up on corroborating evidence; a failure to take disciplinary action against the perpetrator; a failure to remedy previous inadequacies on re-investigation; and a failure to pursue lines of enquiry.
When the Tribunal were determining the award for injury to feelings they were concerned about the Claimant’s vulnerability in circumstances where she was complaining about her manager. Part of the Claimant's vulnerability in this case, apart from her youth and mental health, was her status as a zero hours worker. It was found by the Tribunal that the Claimant felt trapped and fearful that her shifts might be reduced if she complained.
The case serves as an illustration to employers about the importance of conducting thorough investigations into what can be very difficult issues. It is good advice for an employer to consider the points highlighted by the Tribunal and determine whether they need to be taken into account in any particular case. Where a vulnerable individual is complaining about a manager, an investigation will need to be sufficiently robust for a Tribunal to be confident of its findings. The case illustrates that there may be higher levels of expectation from employers where vulnerable individuals are concerned.
In line with the recent focus of debate in the General Election campaign about zero hours contracts, this case illustrates that employment tribunals are prepared to consider the impact that the status of a worker may have in discrimination cases and that this can lead to high levels of compensation for injury to feelings being awarded. Employers are advised to consider such issues carefully and take advice.