Background:

The claimant and the second to fifth respondents all worked for the Starplan in their Portadown showroom.  Until December 2017 the claimant enjoyed cordial working relationships with her colleagues.

The work Christmas party took place on 16th December 2017.  The claimant was the only female present. The party started in the Portadown showroom before moving to a restaurant in a nearby town.  There was a large amount of alcohol consumed at the party.  The second respondent, the alleged harasser, had estimated he had 22 drinks in total.  On 20th December 2017 the claimant rang the third respondent (who did not attend the party) and another to say she had been sexually harassed both verbally and physically by the second respondent.  This was followed by a formal written grievance.  During the investigation it was found that the second respondent had made inappropriate comments about the claimant’s cleavage and that he had placed his hand under the claimant’s bottom in the restaurant.   The claimant changed her position in the restaurant.  The investigation did not agree with the claimant on the other allegations such as further comments made about cleavage or that the second respondent had put his hand up the claimant’s dress and that she was sexually assaulted in the showroom.   The investigator, the third respondent, found that the behaviour was consensual.

The grievance outcome was appealed and it was overseen by an independent HR professional. The claimant also referred to victimisation she had suffered since making the complaint which included comments relating to the second respondent losing his job and marriage and others refusing to acknowledge her in store.  It was held that the victimisation points should be treated as a separate grievance to preserve the claimant’s right to appeal.

The claimant resigned on 7th April 2018 citing the issues relating to the Christmas party and the allegations of victimisation.  Her grievance appeal was refused on 16th April 2018.  It was found that the store manager, the third respondent, was an appropriate person to carry out the grievance and she also found that the actions of the 16th December were not premeditated.   A disciplinary process occurred and it was found that the second respondent had committed gross misconduct as a result of the verbal harassment and the inappropriate touching (which had been partially upheld).   However, despite it constituting gross misconduct, the decision was to give a final written warning and that the employee should be counselled about his obligations.  The second respondent refused the counselling when it was offered.  The grievance relating to the victimisation was dismissed had an appeal relating to it.

At Tribunal further inappropriate remarks and conduct was outlined by the claimant.  She alleged that the second respondent had followed her to the toilet, made comments about the claimant’s breasts and this culminated in the second respondent revealing his penis and asking for a ‘blow job’.  He urinated in the sink at the end of this allegation.  The second respondent made a suggestion that it was the claimant who was trying to ‘come on’ to him.  The claimant stated that the attempted inappropriate touching and the comments continued throughout the night from the taxi and into the restaurant.

Outcome:

The claimant brought a claim for sex discrimination, harassment and victimisation as a result of the allegations made.  On the allegations, the Tribunal did not find, on balance, that the second claimant subjected the claimant to verbal and physical harassment in the office and women’s toilets in the showroom or that he had put his hand up her dress in the showroom and the restaurant.  However, the Tribunal did find that the claimant made comments about the claimant’s cleavage, hugged her from behind without consent, suggested they could have an affair and touched her bottom in the restaurant.  The Tribunal added that the conduct was due to a ‘loss of self-control’ and ‘unacceptable behaviour’ on his part fuelled by alcohol.  The first respondent could have and ought to have put in place some standards for behaviour at office parties.  As a result, the conduct was regarded as ‘crossing the border’ of what was acceptable for her and amounted to unlawful sexual harassment.

On the claim of victimisation, the Tribunal found again that some of the allegations did meet the threshold and others did not.  On those that did it was found that other colleagues ‘glaring’ at the claimant, a comment that the second respondent would lose his marriage and job over the claimant’s action, ignoring the claimant and a comment saying that the claimant would be ‘taken down’ and that the ‘dirt’ would be ‘dished’ all amounted to victimisation as it was a detriment suffered as a result of the action taken.  Additionally, it was found that the employer was liable as the Tribunal was not satisfied that it had taken steps to prevent the acts of sexual harassment and victimisation.   The failure to provide guidance in advance of the Christmas party (which the Tribunal regarded as being notorious for inappropriate behaviour) was part of that alongside the fact that the line manager had purchased alcohol and that he was most senior person at the party and was drunk.

Lastly on the issue of constructive dismissal the Tribunal found as a result of the sexual harassment and victimisation that there was a failure on the part of her line manager to protect her from such action.  This amounted to a fundamental repudiatory breach of the implied duty of trust and confidence.

As a result, the claimant was awarded total compensation of £18,857.18.

Practical Guidance for Employers:

As discussed by the Tribunal Christmas Parties can be ‘notorious’ for inappropriate behaviour.  The Tribunal outlines that the employer in this case failed to discharge their duty to avoid liability.  The Tribunal provides some ways in which this can be discharged through the likes of guidance in terms of conduct at the party, the way in which alcohol may be supplied by the employer and the actions of senior members of staff at such parties.  These points may want to be taken on board by employers to ensure that they are able to put steps in place to stop such conduct occurring and in the unfortunate situation in which it does occur that the employer is able to avoid liability.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/

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