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.
Background:
The claimant commenced employment as a waitress with the respondent. The respondent runs a restaurant called the Mail Coach. During the interview, the respondent said the claimant had the prettiest eyes he had seen. The claimant worked for four weeks – she was not put on the rota and was paid cash in hand. She would have been phoned at late notice to say that she was required. On the first shift the respondent adjusted her clothing and insisted that he put her radio on which required the claimant to unbutton her top and put the radio in her backside pocket. Other issues arose during the work such as receiving extra money which should be a secret, that the respondent would ask her if she wanted a lift home, he would adjust her clothing and he would wink at the claimant. The claimant raised it with other staff and was then called into the respondent’s office where he said he could hear everything that was being said by way of the security cameras. After her exams (it had been agreed that she could have those days off when she started), the claimant got in contact asking for shifts but got no response and her number was then blocked by the respondent. The claimant brought a claim for unfair dismissal and harassment.
Outcome:
The unfair dismissal claim was rejected as the Tribunal did not have jurisdiction because she did not have the requisite continuous employment. There was also no evidence of the dismissal being related to an automatic unfair dismissal category. The Tribunal did find that there was harassment. They found that the comment about her eyes, adjusting clothes, putting on the radio (physical contact), winking, offers of lifts home and secret extra money all amounted to harassment by the respondent. This was because it was unwanted and made her feel worried and scared. Such a reaction was regarded as being reasonable by the Tribunal. Finally, the Tribunal accepted that the conduct related to the claimant’s sex or was of a sexual nature. Whilst there were no explicit sexual comments, they drew an inference from the comments and the respondent's actions. The Tribunal also found that the dismissal was an act of harassment and considered it just and equitable to award compensation for the loss of wages flowing from the dismissal. This led to a total award for harassment of £41,535.49.
Practical Guidance for Employers:
This case demonstrates quite a significant payment relating to a very short period of employment (four weeks). It shows the impact harassment can have in the workplace and the significant way it is viewed by the law and the Tribunal. Whilst there was nothing expressly sexual or related to sex in the comments of the respondent the Tribunal can infer from the actions and how the respondent treats others within the workplace. This led to the findings that it made.
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