Employment Tribunal finds that woman was automatically unfairly dismissed after colleague threatened rape (Mulwanda v Shiloz Services Limited – ET/3200439/2018)

In the case of Mulwanda v Shiloz Services Limited (3200439/2018), the Employment Tribunal held that the Claimant had been unfairly dismissed after she resigned from her employer who failed to deal with a complaint of sexual harassment.  The ET also held that she had suffered detriments having made a protected disclosure about the harassment. Her claim for wrongful dismissal (notice pay) also succeeded.

The facts in Mulwanda v Shiloz Services Limited

Ms Mulwanda (the ‘Claimant’) was employed by Shiloz Services Limited (the ‘Respondent’) from May 2017 to January 2018.  The Respondent’s provided a supported living service for people with learning disabilities.  AA was one of the Respondent’s clients.

Prior to 25 October 2017 AA sexually harassed the Claimant by, amongst other things, making frequent calls to her on her personal mobile phone, unwanted physical contact, sexual comments about her appearance and descriptions of his sexual preferences.  On 25 October AA stated to the Claimant that if he could not get a girl to sleep with him soon, he might have to rape someone.

The Claimants husband, Mr Ogbebor, was concerned abut his wife’s safety so rung Mrs Akpan, the owner of the Respondent.  He informed her about the comment as well as the other incidences of harassment.  The following day, the Claimant orally raised a grievance with Mrs Akpan.  They discussed the unwanted sexual harassment and what the Claimant considered to be the unsafe working environment.  The Claimant went on to continue to have contact with AA at work until he voluntarily left the Respondent’s premises.  During that time the Respondent took no steps to prevent further harassment of the Claimant or to assess the working situation for safety.

Subsequent to the incident on 25 October and the Claimant’s compliant about it, the Respondent started to roster the Claimant for weekend work.  Previously it had been agreed between the Claimant and Mrs Akpan that the Claimant would not have to work weekends.

The Claimant went on to resign, giving four week’s notice.  On 12 January the Respondent wrote to the Claimant, accepting her resignation and stating that if she had not been resigned, she would have been summarily dismissed for gross misconduct for breaching client confidentiality.  The Claimant was shocked and upset by the contents of the letter and as a consequence did not actually work out her notice period.  After she had left her employment, the Claimant lodged a written grievance which the Respondent did not uphold.  They went on to fail to pay the Claimant her outstanding holiday pay.

The Claimant brought claims in the Employment Tribunal (‘ET’) alleging she was unfairly and wrongfully dismissed and had suffered detriments as a result of making a protected disclosure.

The relevant law

Section 43A Employment Rights Act 1996 (“ERA”) states that a “protected disclosure” is a qualifying disclosure.  In order for a disclosure to be a qualifying disclosure it must be a disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –

  1. (a)  That a criminal offence has been committed, is being committed or is likely to be committed,
    1. (b)  That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
    1. (c)that a miscarriage of justice has occurred, is occurring or is likely to occur,
    1. (d)that the health or safety of any individual has been, is being or is likely to be endangered,
    1. (e)that the environment has been, is being or is likely to be damaged, or
    1. (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

The decision of the Employment Tribunal

The ET upheld the Claimant’s complaints.  They accepted that both the Claimant and the Claimant’s husband (on her behalf) had made protected disclosures and that subsequent to making those disclosures she had suffered detriments (being accused of gross misconduct, being rostered for weekend work, and her grievance being rejected).  As a result, she was entitled to resign without notice and her claims for unfair dismissal and wrongful dismissal was therefore upheld.

Our solicitors’ views on the case of in Mulwanda v Shiloz Services Limited

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “This case highlights the importance of employers not turning a blind eye to allegations made by employees, but instead making sure they are investigated thoroughly and if action is required, dealt with appropriately.”

The decision of the Employment Tribunal in Mulwanda v Shiloz Services Limited (3200439/2018) can be found here.