Failure to relocate sexual harasser left employee no choice but to resign (Miss S Stretch v Ballymore Construction Services Ltd ET3202196/2019)

In the case of Stretch v Ballymore Construction Services Ltd ET3202196/2019 the Employment Tribunal ruled that Ms Stretch had been sexually harassed by a colleague and that her employer had failed to take steps to prevent Ms Stretch from having to work with her harasser.

The facts in Miss S Stretch v Ballymore Construction Services Ltd

Miss Stretch (the “Claimant”) commenced her employment with Ballymore Construction Services Ltd (the “Respondent”) on 2 January 2017 as an Administrator, initially employed (until April 2018) at the Respondent’s Wardian site.  One of the Claimant’s colleagues on the Wardian project was Mr Fareed, whom the Claimant already knew from having previously worked together for a different employer. During 2017 the Claimant and Mr Fareed both lived in the Tottenham area of London and Mr Fareed gave the Claimant a lift to work in his car from time to time.

On 7 September 2017 the Claimant organised a work’s night out to the Bengal Quay Restaurant in Docklands. Around 12 members of staff attended. Mr Fareed (whose birthday coincided with the date) attended along with the Respondent’s Project Manager. At the end of the night Mr Fareed offered the Claimant a lift home and she accepted; however, on the journey home Mr Fareed made a stream of unwelcome, inappropriate and obvious sexual advances and comments to her, saying in explicit terms that he had always wanted to have sex with her and that he wished to leave his wife and family for her, that he touched himself whilst doing so, and that at one point he put a hand on her leg (or at least attempted to do so). The Claimant attempted to treat his behaviour as a joke in bad taste and then used her mobile phone as a kind of self-protection by calling her boyfriend and her line manager, whom she spoke to for the remainder of the journey. She was keen to get out of the car and asked to be dropped off some way from her house which Mr Fareed complied with.

Upon her return to work the next day the Claimant discussed the incident with her line manager, who was sympathetic, and got in touch with the Project Manager and HR representative for further guidance. The Claimant was advised of her options which included: 1) making a formal complaint (with the hint being given that it might not help her career progression); and 2) criminal proceedings. The Claimant decided against pursuing either course of  action. 

The Claimant and Mr Fareed were still left to work in the same large office, although in different rows. In 2018 the Claimant moved to another project (Goodluck Hope project) and was happy there; she therefore did not expect to come across Mr Fareed again. However, at some point during 2019 the Claimant became aware that there was a possibility, or at least a rumour, that Mr Fareed might be moving to the Goodluck Hope project in the near future. This rumour caused the Claimant considerable concern and apprehension. When she raised this with the Respondent she was told Mr Fareed would be working on a different floor to the Claimant; however, the Claimant was still not comfortable with this, and the idea of Mr Fareed working near her caused her stress and anxiety.

On 19 July 2019 the Claimant submitted a complaint via email. The Respondent took this as a formal grievance, which increased the pressure on the Claimant to participate in grievance proceedings, and the Claimant was led to feel that she was reliving the incidents of and relive the experience of 7 September 2017 again. The Respondent concluded that whilst the grievance process was ongoing the Claimant would continue to work on the Goodluck Hope project, as would Mr Fareed – there was no discussion of any possible relocation of either of them.

The Claimant submitted her resignation on 31 July 2019, which took effect on 30 August 2019. The Claimant then submitted claims to the Employment Tribunal of unfair constructive dismissal and sexual harassment.

The decision of the Employment Tribunal

The Employment Tribunal unanimously found that the Claimant’s complaints of unfair constructive dismissal and sexual harassment, in breach of s.26 Equality Act 2010, succeeded, as follows:

Constructive dismissal

The Employment Tribunal held that the following conduct on the Respondent’s part was conduct which would inevitably undermine or destroy the Claimant’s confidence in a continuing working relationship, and therefore upheld her claim for constructive dismissal:

• Refusing to consider relocating Mr Fareed to another project than the Goodluck Hope project;
• Forcing the Claimant to go through a further grievance process;
• Informing Mr Fareed of the details of the Claimant’s complaint;

Sexual harassment

The Employment Tribunal found that the behaviour of Mr Fareed on 7 September 2017 amounted to sexual harassment.

The Claimant’s claim was due to be listed for a Remedy Hearing before the Tribunal.

Our lawyers’ views on the case

Stephen Norton, an employment lawyer (legal adviser) at Redmans, commented on the case: “The Respondent failed to deal fairly and transparently with the  Claimant’s original complaint of sexual harassment, resulting in a fundamental lack of due process for the Claimant to have her complaint dealt with at the outset.  The Employment Tribunal found Mr Fareed’s conduct on 7 September 2017 to amount to sexual harassment, and it further found that the Respondent’s abject failure to (among other things) find an alternative work location for Mr Fareed to be a fundamental breach of her contract of employment.”

The decision of the Employment Tribunal in Miss S Stretch v Ballymore Construction Services Ltd -ET3202196/2019 can be found here.