Sexual harassment

An employment tribunal has recently awarded over £350,000 in compensation to an employee (T) who had resigned from her role as a trainee project supervisor after she suffered sexual harassment from her mentor, and victimisation from him and others following her complaint about that harassment. The employer had admitted liability for T’s claims and the matter proceeded directly to a hearing to consider remedy. The parties had agreed figures of £40,000 for injury to feelings and £10,000 for psychiatric injury. 

The tribunal rejected T’s argument that it was reasonable for her to return to university for four years to gain a second degree in engineering, determining that it would take a period of five years for T to recover her career trajectory. The decision includes the following interesting aspects, which offer some learning points for employers handling sexual harassment complaints: 

Aggravated damages

Employment tribunals have the power to award aggravated damages when an employer has behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination or, where its conduct of its defence to the discrimination claim is designed to be intimidatory. The employment tribunal awarded £5,000 in aggravated damages to T, considering that the following failings of the employer had increased T’s injury to feelings:

• The employer’s decision to ignore T’s request to resolve the matter informally through redeployment and the fact it instead placed pressure on her to submit a formal grievance.

• The fact that the employer then initially rejected T’s formal grievance, a decision the tribunal said was ‘perverse given the evidence’, before later overturning that outcome on appeal and upholding her complaint.

• The fact that the employer then …used the disciplinary process [against the perpetrator] as a means not to tell [T] of the outcome for the perpetrator of her complaints…’. This latter point is interesting because the EHRC Technical Guidance: Sexual harassment and harassment at work, which was published in January 2020, says: ‘…wherever appropriate and possible, if a [harassment] complaint is upheld then the complainant should be told what action has been taken to address this including action taken to address the specific complaint and any measures taken to prevent a similar event happening again in the future…Employers may have concerns that reporting outcomes such as disciplinary action taken against the harasser, may be a breach of obligations that it owes to the harasser…However, while employers must comply with the data protection principles…they should not assume that disclosure of the harasser’s personal data will amount to a breach…Employers should take steps to enable disclosure of the outcomes to complainants where it is appropriate to do so…’ (¶ 5.66-5.69).  Could this perhaps be the first example of a tribunal applying this principle in practice?

• The lack of an apology towards T from the employer’s Chief People Officer when asked in evidence whether there was any of the employer’s conduct which she regretted.

• The failure to dismiss the perpetrator after T’s grievance was eventually upheld, with the tribunal expressing surprise at this ‘given the undisputed and exceptional evidence base in this case’ and noting that the employer took such time over the disciplinary process ‘that the perpetrator resigned before a disciplinary process concluded’.

Uplift for failure to follow Acas Code

The tribunal applied a 15% compensation uplift for the employer’s failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures. In particular, the tribunal took account of the employer’s unreasonable failure to:

• Deal with the matter informally as T wished (¶32 when read with foreword).

• Permit T ‘to explain not only the complaint but how she sought it to be resolved’ (¶34).

• Put the perpetrator’s case to T within the grievance investigation. Employers must carry out necessary investigations to establish the facts of the case and ‘fundamental to establishing facts is that where allegations are made and are provided to the alleged perpetrator to be able to give their account, whether this is a misconduct investigation or a grievance investigation, the complainant must see what the perpetrator is saying and have the opportunity to address it before conclusions are reached. That is fundamental to fairness and getting to the facts.’ (¶4).

Tahir v National Grid UK Ltd [2023] ET 1803164/2021; 1803903/2021

Important note: ET level decisions are merely of persuasive value, and are not binding upon future ETs, but can provide a useful indicator of how certain issues are currently being dealt with within the ET.