£56K Awarded to Woman Asked Why She Wanted to Work — Tribunal Deems It Unwanted Conduct

In Ms A Pereira v Wellington Antiques Limited and John Michael Wellington, a sales assistant who faced unwanted conduct at work succeeded in her employment tribunal claims and was awarded £56,000 in compensation.

The employee, found to have been harassed in part, was asked outdated sexist questions about her husband and why she wanted to work. The tribunal ruled a male comparator wouldn’t have been asked the same. Below, we examine what happened in this case before discussing the tribunal’s decision.

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The Facts in Ms A Pereira v Wellington Antiques Limited and John Michael Wellington

Background to Unwanted Conduct at Work

Ms A Pereira (“the Claimant”), who is of South Asian ethnic origin, began working as a part-time sales assistant for Wellington Antiques Limited (“the First Respondent”) in October 2021. Wellington Antiques was established in 2018 and is owned by Mr John Michael Wellington (“the Second Respondent”).

During proceedings, the Claimant alleged that when she started, the Second Respondent promised her employment would “all be done properly”. She elaborated that this meant she would receive her salary through PAYE, be entitled to holiday pay, and be enrolled in a pension scheme. The Second Respondent disputed this fact, and throughout her employment, the Claimant wasn’t paid via PAYE nor given payslips.

Claimant Experiences Unwanted Conduct

On 18 November 2021, the Second Respondent visited the First Respondent. During a conversation with the Claimant, he asked some “personal and intrusive” questions, including “why she wanted to work,” and “why she needed the money,” before asking her about her husband.

Then, during another visit on 3 December, the Claimant discussed the challenges that her age and South Asian origin posed. When she was finished making her point, the Second Respondent said, “blacks and gays have it worse.”

No wages were paid to the Claimant during this time. She went off sick in February 2022, receiving no sick pay, and by month end, she still hadn’t been paid. While she received £1,300 towards her wages on 1 March, this was paid in cash. What’s more, when she asked about her pay slip, PAYE, NI, and pension contributions, the Second Respondent stated she had “no right to a contract until he deemed ready.”

Over the following months, the Claimant began to receive more regular wage payments. Unfortunately, her wages remained short, and she was neither paid via PAYE nor enrolled in a pension scheme. During proceedings, she compared herself to her white British colleagues, who received monthly wages via PAYE at a higher rate.

On 21 June, a meeting took place between the Claimant and Second Respondent. Here, the Claimant was set a sales target of £12,000, which would result in a £2,000 commission payment if met. Yet, when she overachieved, making sales closer to £14,000, the Second Respondent refused the commission. This resulted in a heated exchange on 12 July, causing the Claimant to leave work in a distressed state immediately.

Garden Leave Suggested

A week after the workplace dispute, the Claimant sent a lengthy message to the Second Respondent complaining about the unwanted conduct she’d faced. She said, “I continue to do my very best for you and your company, though you talk to me as if I was the dirt on your shoe.” Later, she added, “Maybe I am not masculine enough, not pliable enough, not white enough, not submissive enough…”

Unfortunately, the Respondents continued to fail to pay the Claimant her wages over the following months. This led to her discussing her workplace stress and anxiety with her GP on 28 October, and messaging the Second Respondent on 2 November about the alleged bullying and intimidation she faced for simply requesting her “basic human and work rights.”

By 6 December, the Second Respondent received a letter from the Claimant’s solicitor, outlining the outstanding wages and commission she was owed, and raising claims of race and sex discrimination. The Respondents didn’t immediately reply until, on 9 January 2023, a solicitor acting on their behalf responded. The Respondents’ solicitor detailed that the Second Respondent took great offence to the race discrimination allegation, before asking the Claimant’s solicitor if a garden leave arrangement was in order.

Discrimination and Harassment at Work Claims Brought

On 13 January, the Claimant’s solicitor agreed to the suggestion of garden leave in principle and proposed a three-month arrangement for £1,120 monthly. Despite this, the Claimant didn’t receive her outstanding wages, holiday pay, or sick pay. She was never told when her garden leave commenced or ended, nor was she reinstated in her role.

Because of this, “she felt she was being constructively dismissed,” and raised a grievance on 23 February. This was ignored by the Respondents, though, and forced her to seek external help about the unwanted conduct. She commenced ACAS early conciliation on 24 February before initiating employment tribunal proceedings on 14 April. Among other things, she claimed unauthorised deductions from wages, breach of contract, discrimination, harassment, and constructive dismissal. Since her wages were paid until 7 March, this was agreed as her last day of employment.

The Employment Tribunal’s Judgment

Breach of Contract

Following the proceedings, the employment tribunal began by quickly assessing the Claimant’s breach of contract claim. This regarded the agreement to provide her with a £2,000 commission payment if she reached £12,000 in sales. The tribunal held this amounted to an “oral term of the Claimant’s contract of employment,” and since the Respondents had refused to pay it, this was a breach of contract.

Direct Race and Sex Discrimination

The tribunal then considered the claims of direct race and sex discrimination. Here, the Claimant raised several specific instances of the alleged misconduct, including failure to pay her via PAYE, enrolling her in a pension scheme, and regularly and correctly paying her on time. However, while the tribunal disapproved of the Respondents’ conduct, it didn’t believe the decisions were based on race or sex. Instead, the fact that the Claimant was a “probationer” and a part-time employee was ruled to be the reason for said conduct. As a result, both claims were dismissed.

Unwanted Conduct: Harassment Related to Race and/or Sex

Moving on, the tribunal considered the claim of harassment related to race and/or sex. This concerned two allegations. The first, that the Second Respondent asked personal and intrusive questions like “Why do you need to work?” The second, that when the Claimant brought up the £2,000 commission payment she was owed, the Second Respondent shouted at her.

Concerning the first allegation, the tribunal stated the intrusive questions were “inappropriate” and unlikely to have been put to a male comparator. The queries about the Claimant’s husband were “based on an outdated idea that men are the main breadwinners in a house,” said the tribunal, which amounted to unwanted conduct that violates a person’s dignity, in this case being the Claimant. Consequently, the tribunal upheld the claim of harassment related to sex for allegation one.

About the second allegation, the tribunal didn’t find the Second Respondent’s behaviour amounted to harassment related to sex or race. While the shouting may have been unwanted verbal conduct, it was neither connected to the Claimant being female nor of South Asian origin. The tribunal determined an appropriate comparator would’ve been treated the same, meaning this part of the claim was dismissed.

Victimisation

Next, the tribunal looked at the victimisation claim. While most of the Claimant’s allegations weren’t found to constitute victimisation, she remained partially successful. The tribunal found she was placed on garden leave and wasn’t reinstated due to her solicitor’s letter to the Respondents. Since her failure to be reinstated amounted to a detriment, and the letter constituted a protected act (since it contained allegations of discrimination and harassment), the tribunal held this was a case of victimisation.

Other Claims and Overall Outcome

The tribunal went on to rule that the Claimant was owed pension contributions and notice pay. However, it dismissed the remainder of her claims, including constructive automatic unfair dismissal and less favourable treatment under the Part Time Workers Regulations. Despite this, her claims for breach of contract, victimisation (partly), and harassment related to sex (partly) succeeded. As a result, she was awarded £56,022.34, comprising injury to feelings, loss of earnings, and interest.

Unwanted Conduct at Work? Get Help with Redmans

If you’ve been harassed or experienced any other form of unwanted conduct at work, contact Redmans Solicitors now. As employment law experts, we can assess your circumstances, provide specialist advice, and guide those eligible through the legal process. It only takes a moment to get help, simply: