The claimant started working for the respondent as an administrative assistant in June 2015. The claimant never received a written contract of employment, nor did she receive any training about the grievance procedures.  The second respondent was employed by the first respondent and was part of the extended family of the ownership of the company.  

The issues leading to the case arose from complaints against the second named respondent and how he interacted with the claimant.  It was alleged that the second respondent referred to the claimant as ‘Big Tits’ to her face as well as saving her as that in his telephone contact list.  The claimant raised a complaint about this during a performance review in September 2016.  There was no investigation to that complaint other than issuing the second respondent with a verbal warning.  The claimant argued that the lack of proper investigation was due to the family ‘closing ranks’ to protect a family member.  The second respondent was never instructed to apologise to the claimant and the claimant only became aware of the verbal warning through discovery relating to the case.  

A second performance review took place in February 2017 which the claimant felt was an act of victimisation as a result of raising the issue previously.  The claimant stated that the second respondent’s conduct had not changed, and the nature of the conduct was that the second named respondent would ask the claimant about her sex life in a crude manner. There was evidence that the second respondent had sent a text message to the claimant saying ‘get your rat out’ which is a crude reference to female genitalia.  This continued into early 2018 with crude statements being made by the second respondent to the claimant. The claimant then made a formal complaint of sexual harassment against the second respondent.   

The attitude taken by the respondent was that the complaint was a ‘smokescreen’ by the claimant in relation to her poor performance at work.  The conclusion of the internal report was that the claimant had exaggerated the claims and had been untruthful in some of the allegations.  The report recommended mediation and the instigation of a disciplinary process against the second respondent.  The second respondent was subsequently given a final written warning of twelve months’ duration.  The claimant stated that this was inadequate considering the conduct of the second respondent. 

The Tribunal found that the second respondent’s conduct fell within the statutory definition of harassment on the grounds of the claimant’s sex.  Indeed, it was found that the text message sent was ‘obscene’.  More interestingly, it was found that the first respondent had probably facilitated the conduct.  This was because there was no proper investigation and the word of the second respondent was taken over the claimant at face value.  This was repeated in terms of the report that was later carried out.  The Tribunal did note that they were aware of placing too high a standard of investigation upon employers yet in this case the atmosphere produced was inappropriate where the claimant was required to provide repeated descriptions of the conduct faced. As a result, the claimant’s claim was successful.  She was awarded £20,000 for injury to feelings. 

Practical Lessons 

This case, now being made public due to anonymisation being lifted, demonstrates the extent to which employers need to ensure that proper investigation and action is taken when allegations are made in relation to harassment.  The Tribunal made it clear that they did not want to make it too onerous for employers but the fact the starting point in the investigation was to believe the second respondent over the claimant was such that it meant the employer fell below what was expected. Full decision is available here: 
https://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/2022/McFarland-v-MorellliIceCream-Judgement.pdf