Hunter v Lidl Great Britain Ltd is an example where comments in the workplace were argued to be ‘workplace banter’ and related to ‘culture’ but determined by the Employment Tribunal to amount to sexual harassment.
Background
Miss Hunter was employed by Lidl as a Customer Assistant in February 2019, and was thereafter promoted to Shift Manager in August 2020. During her employment with Lidl, she was subjected to numerous unwanted comments of a sexual nature as well as unwanted advances. Despite Miss Hunter’s numerous complaints about these comments, Miss Hunter continued to be harassed and was told that she should ‘take it as a compliment’.
She resigned and issued several claims including sexual harassment and unfair dismissal.
Decision
In its decision, the Tribunal determined that Miss Hunter had been sexually harassed based on the conduct which had taken place in the course of her employment. Further, the Tribunal went on to say that whilst the comments did not intend to cause offence, this reflected on the culture of the store where this behaviour was allowed to go unchallenged.
Evidence also showed that management did not appear to appreciate how the comments would be perceived or that they would or could cause offence.
Lidl’s representative did not make any submissions to the Tribunal on the statutory defence to vicarious liability which would seek to minimise Lidl’s exposure. Miss Hunter was awarded £50,884.62 which included £22,000 for injury to her feelings.
Vicarious Liability
As employers, there is a statutory defence to vicarious liability under the Equality Act 2010, if, as an employer you can show that you took all reasonable steps to prevent the employee from doing the alleged act of discrimination or from doing anything of that description.
The Tribunal when considering whether an employer is vicariously liable for the actions of its employee/s, will consider whether there were any further steps that could have been taken that were reasonable to take. They will also take into consideration whether that step or steps would be proportionate to the result which would have likely been achieved.
Reasonable steps will largely be dependent on the facts and circumstances, however guidance within the EHRC: Code of Practice on Employment states that reasonable steps might include:
- implementing an equality policy;
- ensuring workers are aware of the policy;
- providing equal opportunities training;
- reviewing the equality policy as appropriate; and
- dealing effectively with employee complaints.
In Hunter v Lidl Great Britain Ltd, there was no evidence that relevant training took place, nor did Lidl comply with its own anti-harassment policy. The Tribunal went further and stated that the management who gave evidence showed a lack of familiarity with Lidl’s policies. This identifies the importance of making sure as employers that your policies are up to date, as well as ensuring employees are aware of those policies.
If you would like more information, please don’t hesitate to get in touch with our team at employment@glaisyers.com.
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