In S Nunns v SBH Windermere Limited & Mr A Wilson an Employment Tribunal awarded the employee £79,119 (including interest) after it found he had been sexually harassed by the General Manager of the Windermere Manor Hotel. The employee was the Hotel’s Head Chef.
The law
In prohibiting harassment related to a protected characteristic and of a sexual nature, section 26 of the Equality Act 2010 says (my emphasis added):
“A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
A also harasses B if – A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to.
In deciding whether conduct has the purpose or effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.”
The protected characteristics are: age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief and sex.
When considering such matters, the employment tribunals also take into account the Equality and Human Rights Commission’s code of practice on employment – see chapter 7.
The decision
The Employment Tribunal, which preferred the employee’s evidence, found that a number of the acts complained of did happen, and some of those amounted to unlawful harassment of a sexual nature in line with section 26 of the Equality Act 2010. These findings included:
- The General Manager touched the employee’s knee on several occasions while driving the employee home from work, which over time happened for longer and involved inner thigh touching.
- The General Manager placed his hand on the employee’s bottom on two occasions.
- The General Manager sang “The Ballad of Barry & Freda It” a Victoria Wood song/sketch, in front of the employee and, during this, the General Manager attempted eye contact with the employee when singing the title and made gestures while singing the song.
An employer may be responsible for such acts of harassment by one of its employees under section 109(1) of the Equality Act 2010. An employer may defend such a claim if it has taken “all reasonable steps” to prevent the offending employee from doing the harassing act or anything of that description under section 109(4). In this case, the Hotel did not make any such argument and is, therefore, jointly responsible with the General Manager for payment of the compensation due to the employee.
New duty for employers
From October 2024, employers will have a new duty to take “reasonable steps”, likely proportional to their size and resources, to prevent sexual harassment of their employees. The employment tribunals will also have the power to increase sexual harassment compensation by up to 25% where an employer is found to have breached this duty.
This should be reflected by more employers taking a pro-active approach to preventing sexual harassment, through, among other possible measures, training, clear policy and effective reporting procedures.
This blog was written by Ben Lindsay, Solicitor at didlaw.
