Employee wins £15,000 after being sexually harassed in WhatsApp group (Ms S Cowley v Auto-Sleepers Group Ltd T/a Marquis Leisure: 1401337/2019)

In the case of Ms S Cowley v Auto-Sleepers Group Ltd T/a Marquis Leisure: 1401337/2019 the Employment Tribunal awarded the Claimant £15,000 after it held that she had been sexually harassed in the course of her employment.

The factual background of Cowley v Auto-Sleepers Group Ltd T/a Marquis Leisure: 1401337/2019

The ET at Southampton recently heard a case relating to three issues brought by Ms Cowley against her former employer. They were:

1. That she was directly discriminated against on grounds of her sex contrary to Section 13 of the Equality Act 2010;
2. That she was discriminated against contrary to Section 26 of the Equality Act 2010 in that she was subject to harassment on grounds of sex by her former manager; and
3. That she had been wrongfully dismissed.

The Claimant also brought a claim a of unfair dismissal. However, as she had not been in the employ of the Respondent for the necessary two years, she was not able to bring an ordinary unfair dismissal claim.

The decision of the Employment Tribunal

Direct discrimination

There were a number of incidents which the Claimant alleged represented direct discrimination by the Respondent. In order to show that she was discriminated against directly, she had to establish that she was treated less favourably on the basis of her protected characteristic (in this case, her sex) than a comparator or hypothetical comparator.

The incidents she alleged ranged from shouting at her over a satnav, to the tone of disciplinary emails sent to her as opposed to two male colleagues. Although the Tribunal concluded that the treatment had not been pleasant, they also concluded that it had not been less favourable treatment on the basis of her sex. As such, the direct discrimination claim was dismissed.

Sexual harassment

The harassment claim centred around a WhatsApp group which was set up by the Claimant’s former manager, Mr Goble, entitled ‘Work Group’. This was made up of colleagues from the workplace; Ms Cowley was added to the group without her knowledge or consent. Mr Goble proceeded to post several messages and images into the group which the Tribunal deemed were unwanted by the Claimant and violated her dignity as a woman. This created an intimidating, hostile, degrading, humiliating or offensive environment for her. As such, the harassment claim was upheld.

The Tribunal did not agree with the Respondent’s submissions that this was conduct which was separate from, and not in the course of, Mr Goble’s employment. They found that it was set up in the course of Mr Gobles employment with the Respondent. Indeed, the only reason that the Claimant and others were joined to the group was because they worked for the respondent.

Wrongful dismissal

As mentioned above, the Claimant was not eligible for an ordinary unfair dismissal claim. However, wrongful dismissal is a common law claim which relates to a breach of the employment contract. The Respondent had decided to dismiss Ms Cowley before even inviting her to a disciplinary meeting, and the Tribunal found that the respondents had failed to give her any warning under the contractual procedures at all. In fact, quite to the contrary, the Respondent was quite open about the fact that the dismissal related to the Claimant’s upcoming 2-year work anniversary, which would entitle her to greater statutory protections.

As such, the wrongful dismissal claim was upheld, and damages for wrongful dismissal and sexual harassment were agreed at £15,000.

Our lawyers’ comments on the case

Chris Hadrill, the partner in the employment department at Redmans, commented on the case: “Employers should be careful to ensure that any employment-related WhatsApp groups are monitored as much as possible, that any inappropriate behaviour is dealt with, and that staff members are properly trained on workplace equality and anti-harassment. A failure to do so, as in this case, can result in a potentially costly Employment Tribunal case being brought.”

Please find the decision of the Employment Tribunal in Ms S Cowley v Auto-Sleepers Group Ltd T/a Marquis Leisure: 1401337/2019 can be found here