Employers have a duty to protect all their employees, says Daniel Krigers, of Chadwick Lawrence

In a recent case before the Employment Tribunal, a zero hours worker succeeded in a harassment claim on the grounds of her sex.

The individual was employed as a casual worker as a waitress and, under the terms of her agreement, there was no guarantee of any hours from the company and she was not obliged to undertake any work.

During her time with the company, the employee complained that she had been harassed for a period of approximately eight months by her line manager.

She was asked very intimate questions about her personal life and, as time progressed, complaints were issued suggesting that the line manager had touched her inappropriately.

The employee eventually asked for a formal complaint to be lodged.

No particular details were sought regarding the behaviour from the complainant though and a witness was only interviewed for 10 minutes.

The line manager denied the conduct and a brief conclusion that the behaviour was inappropriate was given to the employee. No disciplinary action was taken as a result.

The employee then complained to an Employment Tribunal and a reinvestigation was commenced some 10 months after the complaint.

The witness who had come forward previously mysteriously no longer existed and no conclusive evidence was found of the harassment.

The employee was awarded £19,500 for injury to feelings against both the line manager and the company who were deemed to be vicariously liable for the act of harassment.

On the balance of probabilities, it was held that the conduct had taken place, it was degrading and violated her dignity and was on the grounds of her sex.

The employer argued it should not be deemed to be vicariously liable because of the action it took to prevent the harassment.

However, there were numerous failings during the investigation; the manager was not suspended or disciplined and the reinvestigation was wholly inadequate.

There were no steps put in place to prevent the harassment or to punish the offender and the company was therefore deemed jointly liable with the line manager.

The compensation awarded meant the behaviour fell in to the most serious category of harassment in the tribunal’s conclusions.

Whilst the harassment was not of the worst type, the employee’s own characteristics had to be taken into account. She suffered from mental health problems and was very young.

There was an abuse of power by the line manager and the behaviour was overlooked completely by the employer.

Not only were there long term acts of harassment, but the employer failed to address the problem at all and this aggravating feature caused the Tribunal to issue a significant award.

The case highlights the importance of protecting all workers within a business and not simply those in a permanently employed capacity.

The case is also a reminder of the burden placed on employers in responding to grievances and the protection which they are expected to afford to employees who suffer such unwanted behaviour in the workplace.

Particular emphasis was placed on the employees’ vulnerability given her personal characteristics and this should also be taken into account in any investigation and subsequent action.