Zero hour approaching

Many organisations appreciate the flexibility and agility that zero-hours contracts can offer. However, as a recent
case has shown, there are
also potential pitfalls that organisations should be aware of when contracting on this basis, and safeguards that can be put in place.

In Southern v Britannia Hotels ET/1800507/14, the employment tribunal awarded a zero-hours worker £19,500 for injury to feelings as a result of gender harassment. There were various factors that led to this level of award, but one of the points the tribunal noted was the fact that the claimant was vulnerable due to her zero-hours employment status.

The claimant worked as a waitress for Britannia Hotels and, as is common for employees in the hospitality industry, was employed under a zero-hours contract. Over a period of about eight months she was subjected to sexual harassment by her line manager, Mr Nkoroi. She was 22 at the time and had a history of mental health problems.
She complained to another
line manager but no action
was taken.

The harassment worsened, and eventually the claimant complained to the hotel manager. She was advised to make a formal complaint. However, the subsequent investigation was cursory and no formal disciplinary action was taken against Nkoroi, despite witness evidence which supported the claimant’s allegations.

Harassment claim

The claimant then brought a harassment claim in the employment tribunal against Britannia Hotels and Nkoroi. After receiving the tribunal claim, there was a further investigation by a different HR manager at Britannia, which
was also perfunctory and procedurally flawed.
It concluded there was no evidence to show conclusively that harassment had taken place, although Nkoroi was required
to attend a bullying and harassment course.

The tribunal held Nkoroi
had harassed the claimant and that Britannia was vicariously liable. Under section 26(1) of the Equality Act 2010, harassment is defined as unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that person. Gender is one of the protected characteristics and there is also a separate definition of sexual harassment, which can often overlap.

An employer has a statutory defence to discrimination, by virtue of section 109(4) of the Equality Act, where it can show that it took all reasonable steps to prevent the individual who discriminated from doing so, or from doing anything of that description.

In this case, the tribunal rejected Britannia’s defence that it had appropriate policies in place and had taken reasonable steps to prevent the harassment, since its procedures and investigations had clearly been inadequate. Senior members of staff had knowledge of the harassment and had done nothing to stop it. The evidence of witnesses had been ignored and Nkoroi had not been suspended while the investigations were taking place, leaving the claimant exposed to further harassment.

Vulnerable claimant

When the tribunal makes an award for injury to feelings, it takes a number of factors into account, including the vulnerability of the claimant and the manner in which the respondent dealt with any grievance brought by the claimant. In this case, the tribunal took into account the fact that she was vulnerable due to her young age, her history of mental health problems, and her status as a zero-hours worker. The dismissive approach that Britannia had taken towards her complaints was also taken into consideration.

The case illustrates the potential risks of failing to ensure that managers implement policies and procedures properly, rather than just paying lip service to them. If Britannia had thoroughly investigated the complaint and taken appropriate disciplinary action against Nkoroi, then their defence may have been successful.

Given the prevalence of zero-hours working, it is also worth noting the weight given to the claimant’s insecure employment status in the assessment of compensation. The tribunal noted that the claimant felt trapped and fearful that her shifts might be reduced if she complained about the harassment, as the person harassing her could influence the shifts she was allocated.

Although this was only a first-tier tribunal decision, in the future tribunals may give more weight to the employment status and security of the claimant’s employment when considering to what extent they were vulnerable and when assessing any financial award. SJ

Katherine Highton is a trainee solicitor at Bircham Dyson Bell

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