Ms Podlecka accused her boss of sexual harassment and a fellow co-worker of using ‘abusive language and derogatory comments’ towards her. Two days later, after filing a formal grievance, she was dismissed from her job with no notice pay.
Was Ms Podlecka unfairly dismissed? Did her dismissal amount to discrimination?
Ms Marta Podlecka v MYM Global Ltd
On the 11th August 2017 Ms Podlecka was dismissed from MYM Global just two days after submitting a formal grievance.
She had been working for the company since December 2016, and in June 2017 she started to become aware that Mr Genish, her boss, was making sexual comments towards her and began touching her hand inappropriately. This happened on multiple occasions and caused her to feel ‘powerless’ and stressed, particularly when being left alone at work with him.
Furthermore, another co-worker Mr Praj, had begun to use abusive language towards her and made derogatory comments, namely about her age and religion. Ms Podlecka felt she was not being treated equally to other members of staff who were male.
Ms Podlecka was signed of work for six weeks with stress and anxiety. She told her boss, Mr Genish, about Mr Praj’s actions and he launched an informal investigation. The next day Ms Podlecka submitted a formal grievance against Mr Praj as she felt she hadn’t been included in the investigation. She received no response to her grievance, and two days after its submission she was dismissed from her job, with Mr Genish labelling her conduct ‘immature’ and commenting that ‘this was not a kindergarten’.
Ms Podleka brought claims of sexual harassment and unfair dismissal. MYM Global did not and did not participate in the tribunal process.
The Tribunal upheld claims of sex discrimination and unfair dismissal. The Tribunal highlighted many aggravating features of the claims such as the length of time Ms Podlecka experienced the discrimination, the unwanted sexual advances and abusive treatment on a regular basis, the physical and mental illness caused and the loss of her job. Ms Podlecka was awarded compensation totalling over £15,000 for her notice pay, holiday entitlement, loss of earnings and injury to feelings. Interest was also added to the claim for a failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Sexual harassment in the workplace can range from derogatory comments about a particular gender to physical harassment toward a particular employee such as unwelcome sexual advances. Harassment occurs when a person engages in unwanted conduct related to a relevant protected characteristic or of a sexual nature which has the purpose or effect of either violating another person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person. There is no need for a victim to prove that a person’s conduct was unwanted, for example, the fact that an employee has joined in with “banter” does not necessarily mean that the conduct is not “unwanted” and does not amount to sexual harassment. An important aspect of harassment is that it is how the treatment makes the victim feel that is relevant, provided any reaction by the victim is reasonable.
Employers will be vicariously liable for the conduct of its employees unless they can show that they have taken all reasonable steps to prevent such conduct from taking place. It is also possible for employees who have not directly been on the receiving end of the ‘unwanted conduct’ to bring a claim.
As a starting point, employers should ensure that all employees are aware of what behaviour is unacceptable in the workplace and what could amount to harassment and/or discrimination. This should be contained in an easily accessible document, such as an equal opportunities policy or anti-harassment policy and employers should have measures in place to verify that each employee has had a copy.
Employers in receipt of allegations of sexual harassment should act swiftly to investigate the complaints. If any investigation shows evidence that the harassment has occurred, it should ordinarily lead to disciplinary action being taken against the harasser. Failing to take any allegations seriously could lead to the employee resigning and claiming constructive dismissal in addition to any discrimination claim.
Having dealt with allegations, employers should monitor relationships amongst staff to ensure that anyone who has made allegations is not subjected to any detriment as a result of having done so. This would give rise to a further claim for victimisation.
Employers should also consider periodic training for employees to reinforce what is and what is not acceptable in the workplace.
If you have any queries on unfair dismissal, sex discrimination or any other HR enquiries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.