CIPD: The headline-grabbing case of Southern v Britannia Hotels has been reported for its connection to zero hours contracts, in keeping with the current negativity around the use of such contracts and their potential for the exploitation of workers.
The case concerned a waitress working on a zero hours contract in a hotel bar. She raised a grievance with the hotel manager that she had been sexually harassed by the bar manager, who had quizzed her about her sex life, groped her, rubbed up against her and touched her inappropriately in other ways. The matter was investigated but no action taken. Southern took an harassment claim to the tribunal.
The employment tribunal determined that Southern had been sexually harassed for a prolonged period. It also found that the employer’s handling of the situation was completely ineffective and resulted in her continued exposure to the sexual harassment. It is this element that seemingly justified the high level of award – £19,500 – for (among other things) injury to feelings. The tribunal acknowledged that the treatment was not of the worse kind but the level of award was higher due to Southern’s vulnerability – she was young (22), had a history of mental health issues, and was concerned about falling out of favour with her manager as she thought it might negatively impact on her shift allocation due to her zero hours contract. The tribunal was also influenced by the fact that the management’s investigation was slow and ineffective, thereby allowing her to continue to be exposed to the treatment.
The fact that Southern was on a zero hours contract has no legal relevance in this case. The matters of relevance were about sexual harassment and the employer’s failure to adequately deal with the issue when the victim raised it.
The claimant’s vulnerability due to not wishing to get on the wrong side of her manager is not exclusive to those on zero hour’s contracts, and there are no reports that she was actually disadvantaged in relation to her shifts – merely that she thought she might be if she upset him. However, this aspect was superseded by the fact that she did report the matter (initially informally and then later in a formal grievance) but the employer failed completely to protect her. There have been many sexual harassment cases not involving zero hours contracts but where a position of power has been exploited and a management structure that missed the signs of workplace harassment, and allowed it to continue.
Employees need to know they can raise a grievance and, if they do, that they will be supported. Policies on harassment and bullying need to be in place, effectively communicated and the workforce regularly trained on them. All staff need to have basic training that is repeated and updated, to ensure they do not participate in unwanted conduct. Managers need to know how to spot the signs of harassment and how to address them effectively and properly, in order to protect all staff, especially those who are vulnerable.
While not strictly relevant in this case, zero hours are currently under the spotlight. Where possible, employers might be wise to review any perceptions of possible detrimental treatment in shift allocations and so on, especially in sectors such as catering and hospitality where zero hours contracts are commonly used and shift patterns central to the relationship.
Vanessa James is a partner and head of employment and immigration at SA Law