Hello and welcome back to your weekly case law update. Last week we had our monthly Employment Law Update, with features on Justin Welby, mental health & safety and equal pay. There was also a feature on tribunal statistics which mentioned a possible time lag for sexual harassment claims.

Well, this week we have a case that might support that time lag theory, albeit the time lag is over three years! As readers will be well aware, Tribunal fees were abolished in July 2017 after the Supreme Court held they were unlawful. Shortly after it was held that cases that were dismissed due to the Claimant’s failure to pay a fee could be resumed.

This week, we have a sexual harassment case that highlights how costly those resumed claims can be. The questions this week are:

Do cultural differences mitigate any sexually harassing conduct?

Is interest payable on awards made in resumed claims?

The Claimant, referred to in the judgment as W, was employed by Lincolns Care Ltd, the Respondent, who provide support for adults with mental and physical disabilities. The Claimant’s working hours changed and she worked with a Spanish colleague, Mr. Landazuri.

Mr. Landazuri’s conduct towards the Claimant was sexually harassing. This included:

  1. Attempting to kiss the Claimant
  2. Standing behind the Claimant and calling her a pretty lady
  3. Grabbing the Claimant’s face and trying to put his tongue in her mouth
  4. Running his hands down the Claimant’s back and touching her bottom
  5. Touching the Claimant’s breasts
  6. Asking the Claimant intrusive questions about her sex life

The Claimant brushed the first incident off as Spanish effusiveness. However, after the subsequent incidents, the Claimant reported the behavior to the Respondent. The Respondent brushed all the incidents off due to cultural differences and told the Claimant to be more forceful in rebuffing Mr. Landazuri.

The Claimant reported Mr. Landazuri to the police. The police investigated him and it transpired Mr. Landazuri was a convicted sex offender who had previously been deported from the UK. Upon being released on bail, Mr. Landazuri returned to work for the Respondent and the Claimant resigned.

The Claimant initiated ET proceedings and the Respondent did not issue a defense. However, the Claimant failed to pay her hearing fee, meaning her claim was dismissed. Upon the abolition of tribunal fees, the Claimant resumed proceedings.

As the Respondent hadn’t filed a defense the claim went straight to remedy. The Claimant told the ET she had been on SSP for a period of time before resigning due to the harassment and also suffered long-term consequences of the harassment, including having anxiety about being left alone with men or going into crowded places like the supermarket.

The ET awarded £874 for loss of earnings and £18,000 for injury to feelings. However, due to the amount of time between issue and award, the ET awarded over £5,000 in interest, taking the award to over £24,000.

The takeaway point:

To a certain degree, yes. However, in this case, a prolonged campaign of harassment by a convicted sex offender cannot be written off due to tactile cultural differences. This case also highlights the importance of DBS checks, especially when the employer provides care for vulnerable people with mental and physical disabilities!

The more intriguing point from this case is that interest of over 25% of the award was awarded on top of the award.  – interest is payable on discrimination awards.  ET claims can often be postponed and even without delay, the nature of litigation means the remedy hearing is, at the earliest, 9-12 months after the dismissal.

However, in the same way, tribunal fee refunds are being paid back with interest, interest on discrimination awards will attract interest and in this case a large amount given the delay caused by Tribunal fees. The level of interest, in this case, does seem particularly punitive on employers have given it is not their fault claims were dismissed due to unlawful fees. Nonetheless, it is still something any employer faced with a resumed claim needs to be aware of and it increases the financial risk of defending any such claim.