Hutton v Rainbow Garland Limited Bryan West Michelle Dougan [2013] NIIT 543

THE INDUSTRIAL TRIBUNALS

CASE REF: 543/13

CLAIMANT: Gemma Hutton

RESPONDENTS: 1. Rainbow Garland Limited

2. Bryan West

3. Michelle Dougan

DECISION

The unanimous decision of the tribunal is:-

1. That the first respondent is hereby ordered to pay to the claimant the sum of £518.62 in respect of outstanding holiday pay.

2. That the first respondent is hereby ordered to pay to the claimant the sum of £145.92 in respect of notice monies.

3. That the first respondent is hereby ordered to pay to the claimant the sum of £228.00 in respect of unpaid wages.

4. That the claimant was sexually harassed by Bryan West, a director/employee of the first respondent.

5. That the claimant was also harassed by Bryan West on the grounds of her sexual orientation.

6. The first respondent is hereby ordered to pay to the claimant compensation in respect of that harassment in the sum of £12,000.00. In addition, Bryan West is hereby ordered personally to pay to the claimant compensation in the sum of £4,000.00 in respect of his harassment of the claimant in the course of her employment.

Constitution of Tribunal:

Chairman: Ms J Turkington

Members: Mr A Crawford

Mr B Collins

Appearances:

The claimant appeared and represented herself at the hearing.

None of the respondents had lodged response forms and none of the respondents appeared at the hearing.

The Claims

The claimant brought the following claims before the tribunal:-

1. A claim for pay in lieu of holidays accrued but not taken at the date of termination of the claimant’s contract of employment.

2. A claim in respect of the first respondent’s failure to give notice of termination or pay notice monies.

3. A claim in respect of unpaid wages.

4. A claim in respect of alleged sexual harassment by the first respondent through its director/employee Bryan West.

5. A claim in respect of alleged harassment on the grounds of the claimant’s sexual orientation by the first respondent through its director/employee Bryan West.

The Issues

The issues to be determined by the tribunal were:-

6. Whether the claimant had accrued holidays which were accrued but not taken at the date of termination of her contract and, if so, the amount of pay in lieu of such holidays due to the claimant.

7. Whether the first respondent failed to provide the required period of notice to the claimant or to pay the claimant in lieu of notice and, if so, the amount of pay in lieu of notice due to the claimant.

8. Whether the first respondent failed to make payment to the claimant in respect of wages earned and, if so, the amount of such unpaid wages.

9. Whether the claimant was subjected to sexual harassment in the course of her employment.

10. Whether the claimant was subjected to harassment on the grounds of her sexual orientation in the course of her employment.

Disposal of the claim in the absence of the respondents

11. The respondents did not appear at the hearing. Neither the respondent company nor its directors had presented a response form and, in accordance with rule 9 of the Industrial Tribunal Rules of Procedure, none of the respondents were therefore entitled to take any part in the proceedings at the hearing. The tribunal was satisfied that the Claim Form and Notice of Hearing were duly sent to all 3 respondents at addresses at Upper Newtownards Road and Alfred Street, Belfast respectively and none of this correspondence was returned undelivered via the post. The tribunal was satisfied on the basis of the claimant’s evidence that the second and third respondents, directors of the respondent company, visited these addresses on a regular basis. Accordingly, the tribunal was satisfied that the respondents were aware of the proceedings and the hearing and the tribunal therefore decided that it was appropriate to proceed to hear the claim in the absence of all of the respondents.

Sources of Evidence

12. The tribunal heard oral evidence from the claimant and considered a number of documents submitted by the claimant.

Facts of the Case

Having considered the claim form submitted by the claimant, and having heard the claimant’s evidence and considered the documents submitted by the claimant, the tribunal found the following relevant facts:-

13. The claimant started her employment as an Events Manager in the first respondent’s restaurant business at Botanic Avenue, Belfast on or about 3 June 2012 when the restaurant was getting ready to open. The claimant never received a statement of main terms and conditions of employment.

14. The claimant’s rate of pay was £6.50 per hour (gross). The claimant did receive pay slips.

15. The restaurant was a lesbian, gay, bi-sexual, transgender (LGBT) themed restaurant and the claimant soon became involved with organising events to be held at the premises. She used her contacts with the Belfast Pride Festival in this work.

16. On numerous occasions, Bryan West and Michelle Dougan, the second and third respondents, who were directors of the respondent company, were at the restaurant drinking. Mr West continually referred to the staff, including the claimant, as “poofs”, “stupid lesbians” or “dykes”. He also made inappropriate and offensive comments about customers of the restaurant within earshot of the claimant and other staff. This behaviour, including constant name-calling, made the claimant feel very uncomfortable. She approached Michelle Dougan saying that the staff in general were feeling uncomfortable about the way Mr West spoke to them. Ms Dougan’s response was simply “That’s Bryan”. Ms Dougan took no steps to address the concerns of the claimant or the other staff.

17. On occasions, after he had been drinking on the premises, Mr West made comments about the size of the claimant’s chest. He also made sexual comments about the barmaids in the presence of the claimant. In addition, Mr West asked intrusive questions about the claimant’s sexuality which the claimant considered to be entirely inappropriate. The claimant is lesbian.

18. One Monday shortly before Christmas 2012 and while a salsa dance class was taking place in the premises, Mr West asked the claimant if she would sleep with him. She was shocked and horrified by this.

19. The claimant was subjected to name calling and inappropriate sexual comments every day during the course of her employment. Staff who were lesbian were always referred to by Mr West in a sexual manner. The claimant found this to be extremely offensive and humiliating and found it very demeaning to be treated in this manner in front of colleagues and customers. This added very significant stress to the claimant’s job.

20. In the course of the tribunal hearing, the claimant remained very visibly and obviously upset by the treatment she had received. It was clear that she still found it very embarrassing to talk about these matters.

21. The claimant worked 37.5 hours in January 2013 but did not receive any pay for this work.

22. Around 20 January 2013, the claimant and her colleagues attended for work at the restaurant to find that fittings were being removed from the premises. The claimant and her colleagues understood that the restaurant had ceased trading. They had received no communication from the respondent to this effect.

23. At the request of the staff, Michelle Dougan signed a letter to the staff dated 20 January 2013 confirming that the business had ceased trading and therefore that work for all employees had ceased with immediate effect.

24. The claimant did not receive any paid holidays during the course of her employment. The claimant worked a total of 790.75 hours during her employment.

Statement of Law

25. Under Regulation 13 of the Working Time Regulations (as amended), a worker is entitled to a total of 5.6 weeks paid leave (pro rata) in any leave year. By Regulation 14, where a worker’s employment is terminated during the course of his leave year and on the termination date, the proportion of leave which he has taken is less that the proportion of the leave year which has expired, the employer must make a payment in lieu of leave accrued but not taken.

26. By article 118 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), the notice required to be given by an employer to terminate the contract of employment of an employee who has been employed for one month or more is not less than one week.

27. By Article 45 of the Order, an employer shall not make a deduction from wages of a worker employed by him unless the deductions is authorised by statute or a relevant provision of the worker’s contract or the worker has previously signified in writing his consent to the making of the deduction. A complete failure to pay wages on any occasion constitutes a deduction from wages.

28. Under the Sex Discrimination (Northern Ireland) Order 1976 (as amended), it is unlawful to subject a woman to sexual harassment which is defined as follows:-

“A person subjects a woman to harassment if

of a sexual nature that has the purpose or effect —

(i) of violating her dignity, or .

(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.”

29. Article 42 of the Sex Discrimination Order is in the following terms:-

“(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.”

30. Under Article 65 of the Sex Discrimination Order, where a tribunal finds a complaint to be well-founded, it shall make an order of compensation in favour of the claimant. Compensation for injury to feelings is to be determined in accordance with the guidance set out in the case of Vento v Chief Constable of West Yorkshire Police 2003 IRLR 102 CA. The Court of Appeal stated:-

“(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

(ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

(iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.”

The sums set out above have now been up-dated to allow for inflation since the Vento case was decided.

31. Under article 5 of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (“the Regulations”), harassment on the grounds of sexual orientation is defined as follows:-

“(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of –

(a) violating B’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”

32. By regulation 24 of the Regulations,

“(1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.”

33. Where a tribunal finds a complaint under the Regulations to be well-founded, it shall order the respondent to pay compensation to the claimant in respect of the claimant’s injury to feelings. Compensation for injury to feelings is to be determined in accordance with the Vento guidance.

Conclusions

Holiday pay

34. Since she had not received any paid holiday during the course of her employment, the claimant was entitled to 5.6 weeks paid holiday (pro rata) on termination of her employment on 20 January 2013. Over the course of her employment, the claimant worked a total of 790.75 hours. She worked a total of 33 weeks. The claimant’s average working hours per week is therefore 790.75/33 = 24 hours per week.

35. The claimant entitlement to holiday pay is calculated as follows:-

5.6 weeks x 24 (average hours per week) x 33 weeks/52 = 85.3 hours

Holiday pay = 85.3 hours x £6.08 per hour (gross) = £518.62 (gross).

Notice

36. At the date of termination of her employment, the claimant had more than one months continuous employment with the first respondent. The claimant was therefore entitled to 1 weeks notice of termination of her employment or 1 weeks pay in lieu of notice. Since the claimant did not receive notice or pay in lieu, the claimant is entitled to pay in lieu of notice as follows:-

24 (average) hours per week x £6.08 per hour (gross) x 1 week = £145.92 (gross).

Unpaid wages

37. The tribunal concluded that the claimant did not receive any wages for a total of 37.5 hours worked in January 2013 and the claimant is therefore entitled to the following payment:-

37.5 hours x £6.08 per hour (gross) = £228.00 (gross).

Sexual harassment

38. The tribunal was shocked by the claimant’s evidence as to the numerous incidents to which she was subjected. The tribunal found as a fact that the claimant was subjected both to comments about the size of her chest and that she was propositioned in her workplace by Mr West who asked her to sleep with him. The tribunal was shocked to hear that this type of entirely offensive and objectionable behaviour had taken place in a Northern Ireland work-place in the twenty first century.

39. In view of the very overtly sexual nature of the comments made by Mr West and his propositioning of the claimant, the tribunal had no hesitation in concluding that his behaviour clearly amounted to serious sexual harassment of the claimant in the workplace. It was very obvious to the tribunal that this course of conduct clearly had the effect of creating an environment for the claimant at work which was degrading, humiliating and offensive.

40. Mr West was at the time a Director of the first respondent and effectively in control of the company along with Ms Dougan. Therefore, the tribunal had no difficulty in determining in accordance with article 42 of the Sex Discrimination Order that the first respondent is responsible for the unlawful actions of Mr West.

Harassment on the grounds of sexual orientation

41. The tribunal was also shocked by the claimant’s evidence as to the treatment afforded to her by Mr West which was obviously on the grounds of her sexual orientation. The tribunal found as a fact that Mr West frequently and continually referred to the claimant and her colleagues as “poofs”, “stupid lesbians” or “dykes”. Since this offensive language is so clearly based on the claimant’s sexual orientation, the tribunal did not need to enquire any further as to whether this treatment was on these unlawful grounds.

42. Mr West also asked the claimant intrusive questions about her sexuality. This behaviour was also clearly based on the claimant’s sexual orientation.

43. The tribunal had no hesitation in concluding that the claimant was also subject to a campaign of behaviour on the grounds of her sexual orientation which clearly had the effect of creating for her an environment at work which was degrading, humiliating and offensive. The tribunal therefore determined that the claimant was subjected to a campaign of serious harassment on the grounds of her sexual orientation.

44. Once again, since Mr West was at the time a Director of the first respondent and effectively in control of the company along with Ms Dougan, the tribunal had no difficulty in determining, in accordance with regulation 24 of the Regulations, that the first respondent is responsible for the unlawful actions of Mr West.

Compensation for injury to feelings

45. Having determined that the claimant had been subjected to both sexual harassment and harassment on the grounds of her sexual orientation, the tribunal had to decide on the appropriate compensation to be awarded to the claimant for her injury to feelings. Generally, the tribunal was shocked at the long-running and continual campaign of harassment to which the claimant had been subjected during her employment. The claimant was subject to offensive comments and behaviour on a daily basis during her employment.

46. It was clear during the tribunal hearing that the claimant remained very upset, embarrassed and humiliated by the treatment which she had suffered, often in front of colleagues and customers of the restaurant.

47. In determining the appropriate level of compensation for injury to feelings, the tribunal considered that the claimant had been subjected to a campaign of discriminatory harassment such as would justify an overall award of compensation at the cross-over between the middle Vento band and the top band. Accordingly, the tribunal concluded that the appropriate overall award would be £16,000.00.

48. In this case, all the acts of harassment were carried out by Mr West. The tribunal was also mindful that Mr West was, along with Ms Dougan, effectively the owner of the restaurant business and therefor in a position of significant power as regards the employees of the business. The campaign of harassment conducted by him against the claimant therefore amounted to a serious abuse of power. In view of these facts, the tribunal considered that he personally should bear a significant portion of the overall compensation. The tribunal considers the appropriate apportionment to be £4,000.00 to be paid by Mr West personally.

49. The tribunal considered whether any compensation should be paid by Ms Dougan. When approached by the staff with their concerns about Mr West’s treatment of them, Ms Dougan simply brushed off those concerns and did not nothing to address them. The tribunal considered that Ms Dougan’s response feel far short of the standard to be expected of a person in a position of responsibility in the modern work-place when faced with the scenario which arose in this case. However, since there was no evidence before the tribunal that she had actually participated in the harassment herself, the tribunal did not consider it appropriate to order her to pay personally any portion of the compensation to be awarded to the claimant.

50. Accordingly, the compensation to be paid by the first respondent to the claimant is £12,000.00.

51. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 25 June 2013, Belfast.

Date decision recorded in register and issued to parties:

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hutton v Rainbow Garland Limited Bryan West Michelle Dougan [2013] NIIT 543_13IT (16 August 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/543_13IT.html Cite as: [2013] NIIT 543_13IT

Industrial Tribunals Northern Ireland Decisions

Disposal of the claim in the absence of the respondents