This article was featured in the December 2019 - January 2020 issue of the magazine. 

Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases

 

Komeng V Creative Support Ltd 

In this case, the employment appeal tribunal (EAT) ruled that when determining compensation for injury to feelings in discrimination cases, it is not only one-off acts that fall into the lower Vento band. 

The claimant, who described himself as a ‘black African’, had worked for the respondent as a ‘waking night carer’ since June 2011. During this time, he had asked to be enrolled onto a level 3 NVQ (National Vocational Qualification) course as part of his ongoing development. However, the respondent failed to take any steps to enrol him on such a course, despite the fact that his colleagues of a different race were provided the opportunity to do so. In addition to this, the claimant was regularly made to work weekend shifts, despite his colleagues often receiving weekends off. This arrangement was not changed even though he raised this issue with the respondent. 

The claimant believed this treatment equated to direct race discrimination and brought this claim to an employment tribunal (ET). The ET upheld his claim and, finding that he had been subjected to detrimental treatment on account of his race, awarded him compensation. When calculating the compensation, the ET saw fit to award an additional sum for injury to feelings, the amounts of which are divided into three ‘Vento bands’ (http://bit.ly/2oRiWr9) based on the severity of the incident. 

The ET found that the fact the claimant had continued to work for the respondent for several years despite not being enrolled onto the course indicated that the distress he suffered was not significant. They also found no evidence to suggest the claimant would have been automatically promoted had he been able to complete the course, meaning there was no proof he would have suffered any further detriment.

Therefore, in the tribunal’s view the claimant’s compensation for injury to feelings fell towards ‘the top of the lower band’, awarding him £8,400 for injury to feelings. However, the claimant appealed this decision, arguing that the award was too low and should have instead fell somewhere within the middle Vento band. 

It was then up to the EAT to determine if the claimant’s assertion was correct; however, having reviewed the evidence available to them the EAT dismissed the appeal. Despite the claimant pointing to repeated instances of detrimental treatment, the EAT held that when determining injury to feelings compensation, the consideration is the effect of the conduct on the claimant rather than looking at the gravity of the respondent’s actions. It is therefore determined that it is not only one-off acts that could fall within the lower Vento band.

This case acts as a useful commentary of the intricacies of Vento banding when it comes to injury to feelings compensation. The bands are in place to help decide on compensation figures for: less-serious cases, serious cases, and very-serious cases, respectively. Although serious cases typically involve ongoing discrimination, this case confirms that there is no hard and fast rule that the lower band is only appropriate for one-off acts.

 

...effect of the conduct on the claimant rather than looking at the gravity of the respondent’s actions

 

Raj v Capita Business Services Ltd 

In this recent case the EAT was tasked with assessing whether the act of a manager massaging her subordinate’s shoulders amounted to unwanted conduct of a sexual nature. 

The claimant worked as a customer services agent for the respondent for a year before he was dismissed. Following dismissal, Raj alleged that he had been sexually harassed on several occasions by his team leader. He insisted that she would often stand behind him at his desk and place her hands on his shoulders, neck and back.

During the initial ET, the line manager insisted that she had only tapped the claimant on the shoulder; however, the ET found that she had massaged his shoulders long enough for him to feel uncomfortable, and that this had taken place two or three times. Despite this, the ET said that there was insufficient evidence that the unwanted conduct was related to sex, or that it was of a sexual nature as it related to a gender-neutral part of the body and occurred in a busy open plan office. 

The ET also held that no evidence had been presented that suggested the conduct had been a result of the claimant’s gender. As far as the tribunal could see, the team leader had not behaved in this manner towards anyone else, male or female, and it was isolated conduct. They also took into account the perception of the employee, who had previously raised numerous complaints against the organisation, such as race and disability discrimination, that had been unfounded. As a result of this, the ET believed that he saw things that were not there, calling into question the reasonableness of his perception.

Ultimately, the ET concluded that the purpose of the conduct was misguided encouragement from a team leader to a member of her team. Although this form of contact had been unwise, it did not constitute harassment.

Unsatisfied with this result, the claimant appealed against the decision to the EAT. Although he did not question the tribunal finding that the contact had not been of a sexual nature, he did claim the ET erred in failing to shift the ‘burden of proof’ to the respondent to prove that unlawful harassment in relation to his gender did not occur. 

However, the EAT dismissed this appeal, finding that the initial ET had correctly determined that the conduct did not amount to sexual harassment and therefore there was no need to shift the burden of proof across to the respondent. They agreed that there was no evidence to suggest that his treatment had been a result of his gender and that unwanted conduct in itself did not automatically give rise to a prima facie case that this conduct was related to a protected characteristic.

The EAT also stated that, even if the burden had shifted and the respondent had been required to provide an explanation for the conduct, they had already done so. The massaging had amounted to misguided encouragement rather than anything to do with the claimant’s gender.

This ruling effectively demonstrates the complexity of discrimination cases and that when bringing a claim of sexual harassment, the onus will first be on the claimant to satisfy all aspects of the legal definition before the burden is passed to the respondent. 

...posted the image on a private account and had not been at work, or used the respondent’s equipment... 

 

Forbes v LHR Airport Limited

The EAT had to decide in this case whether an employer could avoid liability for acts of discrimination committed by an employee if the act complained of took place outside of work. 

The claimant worked for the respondent as a security officer. On one occasion at work the claimant was shown by his colleague, BW, an image that had been posted on Facebook by another colleague, S. The image was a picture of a golliwog, which was accompanied by the caption, “let’s see how far he can travel before Facebook takes him off”. It had originated on S’s private Facebook page and had then been shared with a number of people, including BW, but not the claimant.

The claimant was appalled by the image and raised a formal grievance against S, complaining that racist images were being circulated in the workplace. The grievance was upheld and, following a disciplinary procedure, S was issued a final written warning. 

Following this, the claimant was rostered to work alongside S and raised concerns about this. He was then moved to another location without any explanation. A brief time later the claimant brought claims of harassment, victimisation and discrimination on the grounds of race to ET. In doing so he claimed that the respondent was vicariously liable for the behaviour of S. 

However, the ET dismissed his claim, ruling that although the sharing of the image was capable of giving rise to the offence on racial grounds, the post had been done on S’s private Facebook page and had therefore not taken place “during the course of her employment”, so the organisation could not be vicariously liable. The ET went on to explain that, regardless of this, the organisation had taken all reasonable steps to prevent the employee suffering discrimination. They had policies that made it clear this behaviour was unacceptable, had upheld the claimant’s grievance, subjected S to a disciplinary procedure and ultimately issued her a final written warning.

The claimant appealed the vicarious liability point to the EAT, and also disputed that the organisation had taken reasonable steps to prevent discrimination. However, the EAT dismissed this appeal, agreeing with the earlier reasoning of the ET. 

The EAT explained that when assessing whether an act occurred in the ‘course of employment’, tribunals need to examine whether the act was carried out at work or outside of work and, if outside work, whether there was a sufficiently close connection with work e.g. an office Christmas party. Whilst such an approach is relatively straightforward when dealing with the physical environment of work, the EAT commented that it’s far less easy to apply when dealing with the virtual world.

Although the EAT accepted there may be circumstances where the sharing of an image on a Facebook page could be found to be an act done in the course of employment, this was not the case here. The EAT stressed that S had posted the image on a private account and had not been at work, or used the respondent’s equipment to do so. The EAT also noted that her friendship group online was largely made up of non-colleagues and the image had not made reference to the organisation or any of its employees. 

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