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Employer guilty of sexual harassment by appeal process

Railway infrastructure services firm VolkerRail has been found guilty of sexual harassment against a former employee due to the way it handled the claimant’s grievance and appeal process.

While working for VolkerRail the unnamed claimant was subjected to persistent unwanted romantic advances and other inappropriate conduct by her line manager.

She raised a grievance about this conduct after resigning from the firm and on investigation her employer deemed that, though the behaviour was inappropriate, it did not constitute sexual harassment.

When she appealed the decision, the employer reached the same conclusion.

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During the grievance period the claimant attempted to withdraw her resignation, but her request was denied. She then brought allegations of sexual harassment and victimisation by VolkerRail to employment tribunal.

The tribunal found her manager’s conduct did satisfy the definition of sexual harassment, but that part of her claim was out of time.

Alternatively, it decided that the way in which VolkerRail conducted the grievance and appeal process amounted to sexual harassment in itself.

Her employer’s refusal to allow her to withdraw resignation was also found to be victimisation, as the VolkerRail continued to terminate her contract due to her discrimination complaint.

Speaking to HR magazine Julie Morris, the claimant’s solicitor and employment partner at Keystone Law, said: “It's hard to imagine a more stark example of the disastrous consequences that can result from getting these processes wrong.”

Morris’ advice to any employer in a similar position is to ensure the investigating officer has had appropriate training on the handling of harassment and discrimination complaints, and that they are dealt with empathetically.

She said: “Consider the mental and emotional state of both the complainant and the subject and ensure they both have access to proper support throughout the process, for example, through a nominated HR representative or mentor, as well as access to an employee assistance programme.”

If the case starts heading down a legal route, Morris said it is also worth considering whether it is a good idea to defend that type of litigation.  

She added: “In this case, all my client initially wanted was an acknowledgement of what she had been through. She was not pursuing the complaint for financial reward or public censure.

“Instead, the respondent’s aggressive defence of the claim meant that both sides spent two years in litigation, at great expense in terms of both legal fees and management time, yet it still ended up having to compensate my client. Meanwhile, the claimant’s health further deteriorated.”

VolkerRail sought to appeal the tribunal's decision but was struck out.

In a remedies hearing in July, the employer then sought to argue that the claimant should be entitled to minimal compensation.

The tribunal awarded the claimant £420,000 in damages in respect of her financial losses and the injuries to feelings and health she had suffered as a result of how she was treated.

The tribunal (full judgement here) stated: “In our judgment, the [grievance hearers] placed themselves in denial about the second respondent’s undoubted romantic conduct and its influence on other behaviours. 

“It is a very rare case where there are original allegations of harassment or discrimination, and a grievance or appeal process is also found to be discriminatory or harassing, rather than just unreasonable or poor.”