X v VolkerRail Limited and Y – female executive awarded £420,000 for successful sexual harassment and victimisation claims

Ms X joined VolkerRail in 2019 on a salary of £55,000 in the expectation of this increasing. During her employment she formed a friendship with Mr Y who was later to become her manager. The Tribunal found that there was an ‘obvious enjoyment of each other’s company’ and that this went beyond a good working relationship with over 600 pages of electronic communications between them being disclosed the majority of which was personal and not work related. Those communications included the Claimant’s manager sending her a peach emoji (which is often used to symbolise a bottom) and a kissing emoji. The manager also asked her out for dinner, drunkenly called her, suggested they move abroad together and made it clear that he wished to have a romantic relationship with her.

Ms X originally dismissed his advances “in good humour” but then started to become troubled by them. Despite her rejecting his advances Mr Y continued to make approaches to her including further suggestions of meals out and telling her that she looked like the star of the Disney live action film Aladdin.

When Ms X did not receive the pay rise she had told Mr Y she deserved and had discussed with him, she resigned. There were discussions between Ms X, management and HR about whether to reconsider her resignation and Ms X believed it was not being processed.

Subsequently Ms X raised a grievance which included complaints that Mr Y has harassed her. The grievance was not upheld although Mr Y’s behaviour was found to be inappropriate. Ms X appealed and again despite a finding of inappropriate behaviour which harassed Ms X, it was found that did not amount to sexual harassment. Ms X was also informed that her resignation was proceeding and she was given a leaving date in line with her notice period.

Ms X brought claims for sexual harassment and victimisation.

Tribunal Decision

Ms X’s claims against VolkerRail relating to the grievance and appeal and the victimisation claim relating to the refusal to allow her to withdraw her resignation were successful. The claims against Mr Y were dismissed as they were out of time as were the claims against VolkerRail about Mr Y’s conduct.

The Tribunal found that when considering Ms X’s grievance, those investigating had treated her as a “scheming femme fatale”, perpetrating a female stereotype that she was at fault and Mr Y’s behaviour was no more than childish behaviour found in the playground. The Tribunal also found that the refusal to allow her to withdraw her resignation was motivated by the complaints she had made about Mr Y’s harassing behaviour.

VolkerRail did seek to appeal the judgment but that appeal was struck out.

Ms X suffered from post-traumatic stress disorder, anxiety, and depression because of her treatment which the Tribunal described as significant and debilitating. She remained unable to work and participate in ordinary day to day activities over a year later.

Ms X was awarded was awarded £419,352, including £24,000 for injury to feelings and £30,000 for psychiatric injury.

What should businesses consider?

The law around discrimination and harassment is complex. Employers can be liable for sexual harassment committed in the course of employment. This can include acts during the working day at the workplace, but also during the commute, work social events and even the homeworking environment. As this case shows, the employer’s reaction to events can increase the risk and successful discrimination claims can be expensive as there is no cap on the amount of compensation which can be awarded.

Some practical steps which an employer can take to minimise the risks include:

• having a comprehensive policy in place which explains what harassment is and that it will not be tolerated. It should set out a framework for addressing complaints and taking disciplinary action up to and including summary dismissal for perpetrators. This policy should be reviewed regularly and provided to all staff, including new joiners.
• ensuring that effective and safe reporting mechanisms are in place.
• investigating the extent of the potential problem in your business for example, high-stress environments, late nights/long hours, working between just two colleagues (especially where there is a power imbalance) or any events involving alcohol or close contact.
• embedding diversity into all layers of an organisation.
• creating a workplace culture of zero-tolerance to harassment and where all employees are encouraged to report inappropriate behaviour.
• ensuring managers deal with complaints of harassment quickly, effectively and in a sensitive way, that the perpetrators of harassment are appropriately sanctioned, and those who report harassment are protected from victimisation.
• providing regular mandatory equality and anti-discrimination training.

If you would like to discuss any of the above or require any assistance with managing the risk of potential harassment claims, advice on training or the implementation of appropriate policies, please contact one of our Employment experts on 0161 832 3434.