Employers should ensure their line managers treat complaints of discrimination by a zero-hours contract worker as they would those made by any other worker, to avoid discrimination claims, and the potentially unlimited tribunal awards that these can entail.
The meaning of “worker” in the Equality Act 2010 is wide enough to cover workers on zero-hours contracts, which means they are protected against, amongst other things, gender discrimination and/or sexual harassment. In Southern v Britannia Hotels Ltd, an employment tribunal granted a significant award of £19,500 to a zero-hours worker who was subjected to harassment by her line manager.
Miss Southern was employed as a waitress in a hotel for Britannia Hotels Limited (“Britannia”) under a zero-hours contract. She alleged that she was subjected to harassment by her line manager, Mr Nkorol, for approximately eight months. Miss Southern was 22 at the time and had a history of mental health issues.
According to Miss Southern, Mr Nkorol frequently asked her to talk about matters relating to her sex life. When she complained about this to another one of her line managers, Miss Crann, she was told to lodge a written complaint. The alleged conduct subsequently worsened. Miss Southern decided to confide in the hotel manager and indicated that she was concerned about saying anything to Mr Nkorol direct, in case her shifts were reduced as a result of the complaint.
The hotel manager asked Miss Southern to lodge a formal complaint, which she did, but the matter was not still properly investigated. No detailed particulars were sought about the harassment and only ten minutes were spent interviewing a witness to the harassment, who confirmed the allegations were true.
The hotel manager subsequently wrote to Miss Southern with the conclusion of his investigation, namely that certain “mannerisms and behaviour” by another member of staff towards her were inappropriate, but her complaints of harassment were not considered further. No disciplinary action was taken, although Mr Nkorol was asked to desist from such behaviour in future. Meanwhile, Miss Southern lodged a claim for harassment in the employment tribunal.
Following receipt of the substantiate employment tribunal claim, Britannia decided that the complaint should be re-investigated (some 10 months after the original complaint). Mr Nkorol still denied the allegations and the new HR manager responsible for the second investigation did not read the papers relating to the first and found that there was “no conclusive evidence” that the majority of incidents had occurred. Miss Southern appealed, unsuccessfully, against the decision.
The tribunal concluded that Mr Nkorol had indeed harassed Miss Southern and Britannia was vicariously liable for it. It made an award of £19,500 for injury to feelings against Britannia and Mr Nkorol.
This case serves as a useful illustration for employers of how not to conduct an investigation into discrimination allegations. The tribunal noted that the employer in this case seemed to be labouring under the illusion that it could adopt a “range of reasonable responses” approach to investigation, but the investigation lacked rigour and integrity at every stage. The tribunal commented that the employer did not appear to have the slightest interest in trying to understand what had actually happened, in what was transparently only the semblance of an investigation.
Part of the claimant’s vulnerability in this case was her status as a zero-hours worker and the tribunal noted that she feared her shifts might be reduced if she complained. Employers should be aware that, in future, tribunals might give more weight to the employment status and security of the claimant when considering to what extent they were vulnerable and therefore in determining the appropriate award for injury to feelings.