Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Summary Description:
Claimant was found to have been sexually harassed by her boss through various acts of touching and comments.
Background:
The claimant started working for the respondent in March 2022 as a waitress. The claimant was 18 at the time. The claimant received £35.00 per shift in cash.
At a shift in late March 2022 or early April 2022 the first named respondent told the claimant that he was lonely and that she was ‘lovely’. The Tribunal found that this was an inappropriate comment for a 50 year old boss to make to an 18 year old subordinate. However, this was not harassment. In May this conduct escalated with the respondent stating that he could not be around the claimant and he did not know what he would do around the claimant. This then turned into touching her around the waist/hips or touching her back/shoulder. The respondent asked if the claimant did not like being touched and she stated that she did not but he continued. There were other continued issues with the respondent touching her stomach stating she was very skinny and needed more food, touching her side and asking about her tattoo. Other actions included pulling the claimant’s top up and saying that she needed new trousers as well as touching the claimant’s breasts for a short period of time and that the respondent had tried to touch the claimant’s bottom.
After the claimant left the employment, she confided in a family friend who told the claimant’s mother. This led to the claimant’s mother confronting the respondent and the respondent being arrested by the police but there was no prosecution.
Outcome:
Unsurprisingly considering the findings of facts it was found that the claimant had been sexually harassed. The Tribunal helpfully outlined the requirements for sexual harassment as:
The conduct was unwanted by the claimant;
It related to the sex of the claimant;
It had the effect of violating her dignity; and
Had the effect of creating an intimidating, hostile, degrading or offensive environment for the claimant.
The Tribunal also found that the second named respondent, the employer, was vicariously liable for the actions of the first named respondent. This was on the basis that the first named respondent was the sole director and owner of the second named respondent company.
Practical Guidance for Employers:
In considering the findings of fact this is clearly a case in which the claimant was subjected to sexual harassment. The Tribunal provided a good series of steps in determining whether there has been sexual harassment which will be useful for HR professionals and lawyers alike. It is also important to note that the employer can be vicariously liable for the actions of their employees in such situations and it will depend upon having up-to-date training for employees to try and avoid being vicariously liable in these contexts.
NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
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