Handling sexual harassment complaints in the workplace requires sensitivity, thoroughness, and adherence to legal obligations. The case of Ms H Merriman v Bugibba Independent Ltd highlights critical errors in managing such complaints and serves as a cautionary tale for employers. This article discusses the key elements of sexual harassment, explore the facts of the Merriman case, and outlines the best practices for employers to ensure fair and effective investigations.
What is Sexual Harassment?
Sexual harassment at work is unwanted behaviour of a sexual nature that makes someone feel uncomfortable, intimidated, or offended. It violates their dignity and creates a hostile, degrading, or humiliating work environment. Sexual harassment can be physical (like inappropriate touching or unwanted advances), verbal (like comments or jokes), or even non-verbal (such as staring or showing material of a sexual nature).
Employer Liability and the Reasonable Steps Defence
Employers will be liable for harassment committed by their workforce during the course of their employment unless they can rely on the ‘reasonable steps’ defence to justify that they took all reasonable steps to prevent the harassment. This is outlined in Section 109(4) of the Equality Act 2010. What steps are reasonable for an employer to take will depend on the circumstances of each individual case.
Handling Complaints of Sexual Harassment
If a worker raises a complaint about harassment but asks the employer not to take the matter any further, the employer should still take steps to ensure that the matter is resolved. These steps include keeping a record of the complaint and the employee’s decision, attempting to resolve the issue informally if possible, monitoring the situation, and providing the victim with any necessary support. There may be circumstances where inaction could make the situation worse for the complainant and other employees, necessitating an explanation to the complainant to initiate the formal process.
Case Study: Miss H Merriman v Bugibba Independent Ltd
The decision of the Employment Tribunal in the case of Miss H Merriman v Bugibba Independent Ltd (2024) re-emphasises the importance of employer ensuring that allegations made by their staff about sexual harassment are treated seriously and addressed fairly, reasonably, impartially, and promptly. In this case, a female doughnut decorator (M) was awarded £31,410 in compensation for sexual harassment and victimisation. The employer did not treat the allegations seriously and carried out a woefully inadequate investigation process. The worker who raised the harassment complaint was pressured to drop the matter and then dismissed due to an alleged downturn in work.
What Were the Facts of the Case?
A female employee (M) – who was 17 years of age at the time of the incident, alleged that a male employee (H) had sexually harassed her by putting his hands on her body in a bear hug, rubbing flour on her, grabbing her bottom, and backing her into the corner of the room. (M) was extremely distressed by the incident and immediately expressed concerns to her supervisor, but didn’t want the matter to be formally reported.
Soon after this, the relationship between the colleagues deteriorated, with (H) making derogatory comments to (M). This culminated in an incident on 28th March 2021, where (H) was rude to (M) - leading (M) to make further comments about harassment to another employee. After (H) made further derogatory remarks, (M) walked out of her shift feeling frightened. She was informed that the incident would be investigate and was home on full pay due to her distressed state. (H) was also sent home on full pay.
Employer’s Response to the Harassment Allegations
The subsequent investigation involved speaking to both (M) and (H), as well as two additional colleagues. One of the directors (MP) reassured (H) that no further action would be take and later pressured (M) to move on from the incident. (M)’s shift patterns were changed to avoid (H), but – by 28th April, the employer informed (M) they could no longer support her employment; attributing this to a downturn in work.
What Were the Tribunal’s Findings?
Judge Elizabeth Heap found that the company “failed to adequately investigate her complaints” of harassment and pressured her “to forget the incident and move on.” The Tribunal ruled that (H)’s behaviour towards (M) was “entirely unwarranted” and created an intimidating, degrading, hostile, humiliating, or offensive environment. The ET also found that the company’s failure to deal with the incident properly amounted to victimisation, and that the investigation was biased in favour of (H) over (M).
What Employers Should Do in a Sexual Harassment Matter
When there are allegations of sex, race, age, or disability harassment in the workplace, employers must ensure such matters are investigated fairly, reasonably, impartially, and in a timely manner – as well as with the utmost seriousness. This involves adherence to internal policies on such matters by a senior member of staff who has had training on addressing such issues, and – where possible, seeking HR guidance.
If you require further assistance with a handling sexual harassment claims – or any other form of grievance or disciplinary issue, please do not hesitate to contact the HR and Legal Advice Line for FREE on 01455 852 028.
