CASE STUDY 1
Yum Yums Restaurant is owned by Mr Smith who also acts as general manager. Mr Smith considers himself to be something of a wit and also an expert in 1970’s comedy legend Bernard Manning. Mr Smith is approaching retirement so employed an assistant manager, Janet Jones, a couple of years ago. He also employs 5 female workers as waitresses all of whom are currently migrant workers from Eastern Europe. All the waitresses have been employed for between 1 and 5 years. Mr Smith prides himself on his paternal attitude to his staff and the fact that he treats them like his own daughters. He “likes to know everything about them“. He regularly shares a joke with them as well as talking to them individually and together in the work place. Trade has been difficult lately due to the economic down and six months ago Mr Smith changed the waitresses’ uniform. “No point employing pretty girls if no one sees their assets…”. All the waitresses agreed to this change although some did think the skirts were a bit short. The waitresses have tried to raise their concerns with Mr Smith, but Mr Smith has dismissed these concerns as “we don’t want any of that political correctness here” and there has been no change in his behaviour. Following a particularly racy conversation with Mr Smith, one of the waitresses, Maria, complained to Janet Jones that Mr Smith had spoken to her at length about her sex life and his personal sexual proclivities. Maria feels this is unacceptable, not least because she is a practising Roman Catholic and feels that sexual matters are personal. The conversation between Janet and Maria was overheard by another waitress, Lara, who recommends that Maria should “turn the tables” and ask Mr Smith about his sex life as “this made him easier to handle”. Is this harassment? Yes. It is very likely that inappropriate jokes and questioning coupled with a requirement to wear sexually revealing or provocative clothing will be judged to be harassment. The test for harassment is subjective in that it depends, in part, upon the response of the claimant. However, Mr Smith’s behaviour is likely to be seen as violating Maria’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The fact that the employees are foreign migrants is also relevant as any tribunal would be likely to view them as a particularly vulnerable group. What do you think of Lara’s advice to Maria? Pragmatic but ill advised. Lara’s advice does not defeat the claim which exists due to Mr Smith’s behaviour. Similarly, even if Maria takes Lara’s advice this will not prevent her from pursuing a future claim. What should Janet do? In relation to the specific conversation with Maria, Janet should ideally have created a safe environment where confidential concerns could be expressed by Maria in relation to Mr Smith. An off-site location should have been considered. More widely, as the line manager, Janet should have tried to raise the concerns with Mr Smith. If Mr Smith was resistant and/or Janet did not feel comfortable speaking to Mr Smith then Janet could have raised these issues with an independent organisation, for example WhistleblowersUK (www.wbuk.org) Employees engaged in regulated businesses and specific sectors also have access to separate confidential helplines. What remedies are open to Janet, Lara, Maria, the other waitresses? Claims for unfair, constructive or actual dismissal and harassment. A successful claim could include compensation for “injury to feelings” in accordance with the Vento Guidelines. Janet could also claim for victimisation if she suffers a detriment because she has raised these issues with Mr Smith.
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