The recent case of Southern v Britannia Hotels Ltd is a useful lesson to employers on how not to conduct an investigation. The company's inadequate process led to an uplift in the employee's damages for injury to feelings into the top Vento band.

Facts

Miss Southern worked as a waitress at Britannia Hotels.   She complained that she was being sexually harassed by her line manager.   She was told to lodge a written complaint but no further action was taken and the sexual harassment continued.

She later lodged a written complaint about the harassment and the hotel manager investigated the matter.  The process undertaken by the manager was cursory.   He sought limited details about the harassment and only interviewed the main witness to the harassment for a few minutes. The outcome was that the line manager's actions were found to be "inappropriate"; however, no disciplinary action was taken against him, although he was asked not to repeat the conduct.

Miss Southern then lodged a claim for harassment.   The company decided to re-investigate the complaint and this was led by the HR manager.   The second process was even more flawed.   The HR manager did not read the notes from the previous investigation and was therefore unaware that the key witness had changed her evidence so as not to corroborate Miss Southern's claims.  On this she found no "conclusive evidence" that the majority of the incidents had occurred and did not uphold the grievance.   Miss Southern appealed the decision and the appeal was unsuccessful.

Decision

The employment tribunal found that Miss Southern had been harassed and made an award of £19,500 for injury to feelings.   The Tribunal stated that the harassment itself would have merited an award in the middle Vento band, but they uplifted the award due in part to the deficiencies in the way the grievance had been dealt with.    

The rationale for the uplift (given that injury to feelings awards are not intended to be punitive) was that Miss Southern's injury had been exacerbated by feeling that she was persistently disbelieved by her managers and by the delay in conducting the process.   The Tribunal commented that: "where the employer has the means of addressing the problem, but wholly fails to do so in relation to a process which takes another year to complete, the impact of this on the Claimant is likely to be magnified". 

In particular, the deficiencies that the Tribunal noted in the procedure (which were also reasons why the company was not able to rely on the statutory defence that they had taken all reasonable steps to prevent the harassment) were as follows:

  • the internal policies which were designed to prevent harassment were not implemented correctly by the three senior managers; 
  • the line manager who Miss Southern initially complained to had actual knowledge of the harassment but took no further action in relation to the complaint, such as reporting it to senior management;
  • the hotel manager's investigation was inadequate and he did not suspend the line manager, follow up on the corroborative evidence or take disciplinary action;
  • the HR manager failed to remedy the deficiencies in the hotel manager's investigation and dismissed Miss Southern's grievance for an insubstantial reason; and
  • the manager who heard the appeal noted the inconsistences in the evidence of the witness but failed to pursue any further enquiries. 

This case illustrates that, when dealing with allegations of harassment, employers must follow internal policies carefully, conduct detailed investigations and fully support employees who have made allegations of harassment. It is interesting to note that the Tribunal in this case considered that not suspending the alleged harasser during the investigation was one of the company's failings.   Less surprisingly, the failure to discipline him also counted against the employer.    

One further point of interest is that the employee was a zero hours worker and that the Tribunal commented that this made her more "vulnerable" to abuse; her vulnerability was another factor the Tribunal took into account in setting the high level of the award.

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