Tribunal finds sales assistant subjected to sexual harassment that was deemed ‘inevitable for women’ by a colleague

The sexual harassment case

The sales assistant was 19 at the time of the main allegation. Ms D was employed as a sales assistant at a store café. However, she worked under several contracts from 14 September 2021.

The culprit for the sexual assault, Mr F was employed by the employer as a sales assistant since 2014. He was in his early 40s at the time of the main allegation.

The first incident happened in January 2022 in the café’s warehouse. D told the tribunal her colleague F “touched her in a number of ways”, which ranged from holding her hand and pulling it towards him, putting his hand on her shoulder and stroking or squeezing her arms.

She also stated F “held her hands up so they were in front of her” on another occasion. The final assault was when D was pushing the trolley in the warehouse, F “put his arms under her arms” and held the trolley, while also “pushing his arms against her breasts” and pushing against “her back and bottom so that she was unable to get away”. D claimed F remained pressed against her and then brushed against her when he moved away.

D later reported the incident the next time she was at work after speaking to her sister about the incident. No disciplinary grievance went ahead for F. Mr G who conducted the investigation said that he found it “very difficult” to decide between D and F’s accounts as “both were credible”.

The appealed grievance meeting

D appealed the grievance on 25 January. It was scheduled for 16 February with Ms G. During the meeting D became upset and asked for a break after an hour.

During the meeting, it was alleged that G was “barely letting [D] speak and making her feel responsible for the incident because she had not told F to stop, or reported it soon enough, or reported it to the police”.

The appeal was not upheld. The tribunal found that both G and H decided there was not enough evidence. Minor steps were put into place to minimise contact between D and F, but no CCTV was installed in the warehouse.

The conclusion the tribunal had on the meeting with G and D was that although D did believe G she “consciously or unconsciously minimised the impact” on D, and believed it was “just part of life as a woman” and because other colleagues had given positive reports on F’s character the allegations were not “sufficiently serious to warrant the impact on F that disciplinary action against him would cause”.

The judge’s conclusion on the sexual harassment case

Miller the employment judge stated that the acts of F to D were “likely to be an escalating infringement” of D’s personal space, with F “apparently becoming more confident as the day went on”.

He stated that it was clear the acts were related to D’s sex and that it was “of a sexual nature”. “In our judgement, this was part of an escalation by [F] – perhaps testing [D] to see how far he could go – and all of this was motivated by his sexual interest in [D],” Miller said.

He continued to say, “every woman is entitled to go about her job and her everyday life free from unwanted interference by men and free from the fear of such unwanted interference.

“On the facts that we have found, [F] prevented [D] from enjoying that freedom and these claims of harassment related to sex and/or sexual harassment are successful and are allowed against [F and E].”

HR advice on sexual harassment and support for employers

Sexual harassment is something employers need to take seriously. You do not want to risk the safety of your employees or find yourself being taken to an employment tribunal.

Just like in this case, you could end up at an employment tribunal and cause significant damage to your business’s reputation. You may even have to pay a hefty sum of compensation leaving your business at risk.

We provide free support if you’re an employer and need employment law advice on HR issues. We offer 24/7 help to guide you through the process.

Please speak to one of our HR and employment law advisors free at 0800 144 4050 or fill in the form here to request a callback. Contact us today for free ACAS advice.