Employee sexually harassed by colleague but not dismissed because she complained about harassment (Miss Ihekwoaba v (1) Aston Services Group Limited (2) Mr Ahmed – ET/1401877/2018)
In the case of Miss Ihekwoaba v (1) Aston Services Group Limited (2) Mr Ahmed (1401877/2018) the Employment Tribunal held that an employee had been sexually harassed by a colleague, but found that she had not been dismissed because she complained about the harassment.
The factual background in Ihekwoaba v Aston Services Group Limited & anor
Miss Ihekwoaba (the ‘Claimant’) was employed as a cleaner by Aston Services Group Limited (the ‘First Respondent”) for approximately five months until 19 March 2018 when she was summarily dismissed for gross misconduct. The Claimant was Polish and white. Mr Mustafa Ahmed (the ‘Second Respondent’) was the Claimant’s Line Manager whilst she was employed by the First Respondent.
On 3 January 2018 the Claimant texted her supervisor, Ms Thompson, stating: ‘Mustafa he came too close to my personal space and it wasn’t first time…..if you will be able please check on cameras fourth floor side on the first lady’s…..’
On 5 January the Claimant texted her supervisor: ‘again yesterday he used opportunities (when he was showing me something on stairs) and was touching my hand. Horrible man. Have a good day.’ Ms Thompson replied ‘you will have to tell him straight if he does it again.’ The Claimant replied ‘I will not allow him to do that again (smiley emoji).’ Mr Thompson again wrote ‘if he gets too close tell him to get out of your personal space.’
In mid to late January, the Claimant and Ms Thompson met. The Claimant again complained about the Second Respondent. On 27 January a new area manager started who took over from Ms Thompson. The Claimant was immediately subjected to a disciplinary procedure and suspended. On 14 February a disciplinary hearing took place and on 15 February the Claimant raised grievances against Ms Thompson and mentioned again that she had been touched by the Second Respondent. The disciplinary process was suspended, and the claimant was invited to a grievance meeting. Eventually her grievance was not upheld, and she went on to be dismissed for gross misconduct for falsifying timesheets. The Claimant appealed both decisions, but neither of her appeals were upheld.
The Claimant brought claims in the Employment Tribunal (‘ET’) for race and sexual harassment and victimisation on the grounds of sex and race.
The decision of the Employment Tribunal (ET)
The ET held that the text messages sent to the Claimant on the 3 and 5 of January did constitute sexual harassment, but not harassment based on race. Whilst the ET held that the Claimant’s messages to Ms Thompson complaining about the Second Respondent’s behaviour did constitute a protected disclosure, they did not find that the making of the protected disclosures was the reason for the Claimant being disciplined or dismissed and therefore her claim of victimisation on the grounds of sex and race failed. The ET felt that there was clear evidence that the Claimant was dismissed because of the falsification of time sheets and this was the real reason for her dismissal.
The First Respondent attempted to rely on the statutory defence that it took all reasonable steps to prevent the Second Respondent from sexually harassing the Claimant. However, the ET found that all the evidence pointed towards the First Respondent having taken no steps whatsoever to prevent the behaviour. Ms Thompson had dismissed the Claimant’s allegations out of hand and made no effort to examine the CCTV. She also failed to mention the Claimant’s complaints to Miss Print who took over her management responsibilities and took no advice from the external HR company she had access too.
The ET therefore found that the Second Respondent had sexually harassed the Claimant, for which the First Respondent was also liable. The Claimant was awarded £6,000 for injury to feelings.
Our solicitors’ views on the case of Miss Ihekwoaba v Aston Services Group Limited & anor
Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “This case demonstrates the risks of employers not taking seriously complaints by employees in respect of the behaviour of their co-workers. It is vital that employers have robust policies in place to deal with and investigate complaints made by employees as the statutory defence will not be available to them in defending future tribunal claims if they do not deal with an employer’s complaint appropriately as soon as they become aware of it.”
The decision of the Employment Tribunal in Miss Ihekwoaba v (1) Aston Services Group Limited (2) Mr Ahmed (1401877/2018) can be found here.