Hello and welcome to PJH Law’s Case of the Week. This week, we look at the importance of ensuring that complaints of sexual harassment in the workplace are dealt with seriously.
A failure by an employer to properly investigate allegations of sexual harassment could land them in hot water. Such behaviour is likely to breach the implied term of trust and confidence in every employment contract, warranting a claim for constructive dismissal.
Miss S Stretch worked as a Commercial Co-ordinator for Ballymore Construction Services. She liked her job and looked forward to a career with the company.
One evening, after a work party, she was offered a lift home by a colleague, Mr. Fareed. The Claimant and Mr. Fareed both lived in Tottenham, and Mr. Fareed would occasionally give the Claimant lifts home from work.
That night, the Claimant alleges that Mr. Fareed “made a stream of unwelcome, inappropriate and obvious sexual advances and comments to her, saying in explicit terms that he had always wanted to have sex with her”.
Initially, she laughed this off as a joke in bad taste. But when it continued, she telephoned her line-manager as a defence against Mr. Fareed’s advances. She asked to be dropped off prematurely, and Mr. Fareed complied with her request.
On exiting the car, still on the phone to her line-manager, she begun explaining what had happened. A meeting was arranged for the following morning.
During this meeting, it was explained that she had two options: report the matter to HR or go to the police. The Claimant was reluctant to report the matter to HR, as she knew the HR manager got on well with Mr. Fareed. The police were out of the question as well, as she did not want to take such drastic action. Consequently, she relied upon assurances from both managers that they would “have her back”, and that they would do everything in their power to ensure such an incident never happened again.
A few months later, the Claimant spoke with Mr. Denis Hevey (Performance Psychologist) about moving sites. He arranged this, and the Claimant moved in 2018. The Claimant also says that during this meeting, Mr. Hevey promised her that she wouldn’t have to work with Mr. Fareed again.
In the summer of 2019, the Claimant caught wind of a rumour that Mr. Fareed was re-locating to her site. Dismayed, she called Mr. Hevey to question his apparent reneging on their promise. This culminated in a meeting on the 1st of June, in which it was suggested that the matter be dealt with by HR. Upon investigation, HR concluded that Mr. Fareed’s re-location was inevitable.
The Claimant wrote to complain about this finding, which was treated as a formal grievance. At the grievance meeting (by which point Mr. Fareed had re-located to the Claimant’s site), the Claimant was forced to recount the events of the evening, leaving her in tears. 6 days afterwards, the Claimant was informed that the investigation was ongoing; that she was unable to discuss its contents with colleagues; and that in the meantime she had to continue working alongside Mr. Fareed. On the same day, the Claimant resigned.
As the facts in this case are bulky, we shall keep the takeaway short and sweet.
There were two heads of claim: sexual harassment and unfair constructive dismissal.
The ET found sexual harassment with little effort, considering the Claimant reliable and consistent.
Unfair constructive dismissal was not too much of a stretch either. The ET noted the protracted, inefficient, and seemingly uncaring attitude of the employer:
“no attempt was made to warn or prepare her (the Claimant) for his subsequently joining her at the Goodluck Hope project… it is clear that the Respondent was not prepared to take any steps, whether temporary or permanent, to try to avoid the Claimant having to work once more with Mr Fareed… We are satisfied that it would have been possible for an undertaking of the Respondent’s size to find an alternative solution, even if only temporary, had they tried to do so… the Respondent had at least one other ongoing project in London at Embassy Gardens”.
They sum up: “In our judgment, the Respondent’s unwillingness to even investigate and/or to find another location or solution whereby the Claimant would not have to work at the same site as someone against whom she had raised apparently credible allegations of sexual harassment, despite having been told that situation would not arise, amounts to conduct which would inevitably undermine or destroy an employee’s trust and confidence in any continuing working relationship, and did so in this case.”
Failing to properly consider allegations of sexual harassment is one of the easiest ways to erode the relationship of trust and confidence between employer and employee. It signals to an employee that you do not place any priority on their well-being. It is hard to imagine a scenario more suited to the law of constructive dismissal.