This case illustrates the danger of an employer not being proactive in circumstances where members of staff are known to engage in physical contact; the invasion of someone’s space; and to engage in banter which could be construed as sexual harassment. There is a proactive duty on employers to intervene in such circumstances to ensure that policies are being adhered to in practice. The claimant was employed by the respondent as a support worker. Whilst working on a night shift the claimant was sexually harassed by a co-worker. When the claimant found out she would be again working on night shifts with her harasser she lodged a grievance with the respondent.

The respondent carried out a grievance report and recommended that the harasser be the subject of disciplinary proceedings, though he was not suspended. A disciplinary report was produced a month later and the harasser subsequently received a written warning. The claimant however was not informed of the proceedings and did not receive any response to her enquiries. She subsequently resigned, citing her concern that she would not be safe in work and concern that no measures had been taken against the harasser or to protect her.

The tribunal found that the respondent was vicariously liable for the actions of the harasser. The respondent had been on notice that the harasser engaged in jokes, banter and hugging which could have amounted to sexual harassment depending on the circumstances and the response of the victim and it had not taken such steps as were reasonably practicable to ensure that the acts of discrimination did not occur.

The Tribunal then considered whether the deficiencies in the action taken against the harasser and the support and information provided to the claimant during the disciplinary procedure amounted to a fundamental breach of contract leading to the claimant being justified in resigning. Although it was a difficult decision the Tribunal found that the lack of communication and the decision not to suspend the harasser were sufficiently serious to justify the claimant resigning. As the constructive dismissal was bound up with the harassment complaint this amounted to an act of sex discrimination and was unfair. http://bit.ly/13nBe0O