In the case of Samuda v London Borough of Hackney and Adams ET3200712/15 the Employment Tribunal held that “weird” and “eccentric” conduct by a colleague of a female employee constituted sexual harassment.
Ms Samuda worked for the London Borough of Hackney from 2006. In 2013 a new employee, Mr Ekhsigian, joined Ms Samuda’s team in a large open-plan office. The team was managed by Ms Daniel.
Mr Ekhsigian’s behaviour at work was viewed by Ms Samuda and her colleagues as “eccentric” and “weird”, and he would bring items into work such as women’s underwear. Mr Ekhsigian would also inform colleagues of sexual encounters that he had engaged in, with these sexual encounters often involving violence and the use of the date-rape drug Rohypnol. Mr Ekhsigian “targetted” Ms Samuda by asking whether she lived alone, taking photos of her at her desk, and asking her (and others) for her mobile telephone number.
On 28 October 2013 Ms Samuda gave her postcode in a private telephone call and noticed that Mr Ekhsigian wrote her postcode down. She demanded that he give the the note on which he had recorded the postcode and he refused to do so. During this incident Ms Samuda noted that Mr Ekhsigian’s belt and trousers were undone and that his flies were zipped down.
Ms Samuda submitted a complaint on 31 October 2013 regarding Mr Ekhsigian’s conduct, including that he was telling stories about his sexual exploits and that he was attempting to give her women’s underwear.
A grievance investigation was commenced, as well as a disciplinary investigation regarding the allegations against Mr Ekhsigian. A disciplinary investigation report was prepared by Hackney Council in which the investigating officer concluded that Mr Ekhsigian’s conduct was potentially gross misconduct; however, this report did not conclude that Mr Ekhsigian had engaged in any sexual harassment or bullying of Ms Samuda. A decision was then made in February 2014 not to dismiss Mr Ekhsigian but to extend his probation period for a further 12 weeks. The outcome letter to Mr Ekhsigian dated 6 February 2014 ignored the incidents in which Mr Ekhsigian had asked Ms Samuda whether she lived alone and what her mobile telephone number was. In short, the complaint of sexual harassment was not addressed and there was no advice given to managers on how they should deal with Mr Ekhsigian’s attitude towards Ms Samuda.
Mr Ekhsigian returned to work and continued to harass Ms Samuda by provoking her by interrupting her conversations with colleagues, making inappropriate comments and noises, and by sitting and staring at her for protracted periods of time.
Ms Samuda went off work sick in June 2014 and did not return to work until January 2015. An occupational health report indicated that adjustments should be put into place in order to avoid damage to her mental health; however, a risk assessment was not carried out for two months. Mr Samuda was dismissed in January 2015 but Ms Samuda was aware that he had an appeal pending – she was not aware that his appeal had been dismissed until 17 March 2015 and believed that he could be returning to work at any point. She also raised concerns that management at the London Borough of Hackney had failed to address her sexual harassment complaints. By May 2015 Ms Samuda’s had completely lost confidence in management and she resigned on 8 May 2015.
Ms Samuda brought claims to the Employment Tribunal for constructive unfair dismissal and sexual harassment.
The Employment Tribunal found that Ms Samuda had been sexually harassed by Mr Ekhsigian. The Tribunal also found that management had failed to carry out a sufficient investigation into Mr Ekhsigian’s conduct and expressed surprise that it had not been found that Ms Samuda had been harassed or bullied by Mr Ekhsigian. It also found that the London Borough of Hackney allowing Mr Ekhsigian to return to the workplace was a “significant failure” on its part. The Tribunal therefore decided that the London Borough of Hackney had failed to take all reasonable steps to prevent the harassment.
The Tribunal also found in Ms Samuda’s favour in respect of her claim for constructive unfair dismissal.
The Tribunal awarded Ms Samuda a total of £31,914.11, comprised of a basic award of £4,288, past loss of earnings of £10,070.69, future loss of earnings of £5,555.42, and an injury to feelings award of £12,000.
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that employers must take all reasonably practicable steps to investigate a complaint of sexual harassment (or any other form of harassment) and address it – a failure to do so can lead to a finding that the employer has itself sexually harassed the employee.”