Employer found liable for sexual harassment after failing to properly investigate sexual harassment complaint (Miss HL Cunningham v A Oasis Cars Ltd and Ibrar Hussain – ET/2600283/2018)

In the case of Miss HL Cunningham v A Oasis Cars Ltd and Ibrar Hussain (ET/2600283/2018) the Employment Tribunal held that an employee had been subjected to sexual harassment after she was subjected to her leg being stroked by a colleague.

The facts in Cunningham v A Oasis Cars Ltd and Ibrar Hussain

Miss HL Cunningham (the “Claimant”) commenced employment with A Oasis Cars Ltd, a taxi business (the “First Respondent) in around May 2017.  Mr I Hussain, the Managing Director (the “Second Respondent”) was also named in the claim.

The claimant’s employment began at the latest in May 2017. She worked as a base controller out of the first respondent’s office in Ashfield. She did various shifts on various days, but latterly worked almost exclusively on Monday, Tuesday or Wednesday nights, doing 16 hours or so per week. This was to fit in with her domestic arrangements as she was a single parent of 3 children which usually prevented her from working at weekends, particularly during the day.

This case concerns an allegation that whilst working a Tuesday to Wednesday night shift around 7pm, the Claimant was sexually assaulted by the joint owner of the first Respondent one of the first respondent’s drivers, a shareholder in the first respondent, and the second respondent’s business partner, Mr Reza Choudhary (referred to as “Mr R” in the Tribunal judgement).  Mr R sexually assaulted her by stroking her leg and grabbing her backside.

She had complained to the second Respondent about Mr R but the second Respondent did nothing about her allegation in terms of investigating the allegation.  Around 29 January 2018, the second Respondent told the claimant by telephone that she was going to have to work with Mr R on the night shift from 30 to 31 January 2018. This was despite him having previously told her that she would not have to work with him. The previous occasion when he told her she would not have to work with Mr R was around the start of January, when she raised her concerns about him with the second respondent at work in front of a group of drivers.  Also around 29 or 30 January, the second Respondent gave the Claimant a choice of working with Mr R on a Tuesday and Wednesday, or working with the second Respondent on day shifts on Fridays and Saturdays.

The claimant raised a grievance by letter on 31 January 2018. The second Respondent responded by a letter dated 5 February 2018.

Although it is stated in the second respondent’s letter that he was, “more than happy to offer you the same work which you have been doing”, the letter concludes, “I have decided to offer you work on Fridays and Saturdays”. In light of previous conversations between them, the Claimant understood this to be an offer of day time work on Fridays and Saturdays. The Respondents’ case is that she was offered nightshifts on Fridays, Saturdays and/or Sundays).  

Also in mid to late January 2018, before the weekend of the 27th and the 28th, the claimant went to the police about the alleged sexual assault in December 2017. She was advised to record the telephone calls she made to the second respondent about the situation. The police investigated in late January and early February 2018 and Mr R was interviewed by the police. He was never arrested or charged.

Her contract terminated around February 2018 but it was unclear if this was by mutual agreement or other means. The Claimant subsequently lodged a claim for sexual harassment with the Employment Tribunal (“ET”).

The decision of the Employment Tribunal

The Employment Tribunal found that the Claimant’s allegation that Mr R touched her inappropriately on or about 12 December 2017 was, on the balance of probabilities, true, and this was unwanted conduct on his part. The Employment Tribunal therefore held that the Claimant had been sexually harassed by Mr R, and that the First Respondent was vicariously liable for this.

The Employment Tribunal also held that there had been a breach of the trust and confidence in how the complaint was handled. The choice the Claimant was left to make between working her preferred shifts with Mr R who she had previously accused of sexual harassment, or shifts suiting her circumstances without having to work with Mr R, was considered as conduct that was likely to destroy or seriously damage the relationship of trust and confidence.  The business itself in the form of the First Respondent was in general breach of its `breach and confidence’ term in the employment contract, as well as for the actions of one of its employees in perpetrating the sexual assault. 

The actions of both the First and Second Respondents were found to constitute sexual harassment of the Claimant, contrary to section 26 of the Equality Act 2010.

A remedy hearing was scheduled to take place at a later date (in order to determine compensation).

Our solicitors’ comments on Cunningham v A Oasis Cars Ltd and Ibrar Hussain

Chris Hadrill, the partner in the employment department at Redmans, commented on the case as follows: “It is always good practice for employers to implement training in equality and diversity in the workplace, and for employers to set out policies and prctices

The Respondents in the form of the company and its Managing Director would have benefitted for the existence of a policy with a fair procedure for dealing with complaints of this nature internally that may have avoided escalation to an ET.

The decision (on liability) of the Employment Tribunal in Miss HL Cunningham v A Oasis Cars Ltd and Ibrar Hussain – ET/2600283/2018 can be found here.