In the case of Ms S Simalyte v Kentucky Fried Chicken Ltd (ET/1601209/2017) the Employment Tribunal held that a female employee had been sexually harassed by a colleague after she rejected a colleague’s advances at work.
The facts in Simalyte v Kentucky Fried Chicken Ltd
Ms Simalyte (the ‘Claimant’) was employed by the Kentucky Fried Chicken Ltd (the ‘Respondent’) to work in one of its takeaway food restaurants in Newport between October 2014 and the 29th September 2017. The first two years of her employment were uneventful but in October 2016 her relationship with a work colleague deteriorated from that point onwards. He had professed his feelings for her and had asked her out after work, which she rejected finding offensive as she was already in a steady relationship. He continued to harass the Claimant by following her around, interfering with her work, barging or elbowing her out of the way. On the 18th August 2017 a dispute between the claimant and her colleague resulted in a physical altercation in the food preparation area of the restaurant. Both participants left the store and did not return to work from that point onwards. The claimant herself was subsequently absent due to ill health. She raised a formal grievance on 15 September 2017 which would have arrived by 19 September 2017 and the latest. The company policy stated a grievance hearing should take place within 10 days of receiving it, therefore 29 September 2017. No acknowledgment was received by the Claimant let alone a date for the hearing so she resigned without notice on 29 September citing the campaign of harassment she had been subjected to and the failure of the Respondent in dealing with her grievance.
The Claimant then presented a claim to the Employment Tribunal (ET) on 11 December 2017 listing a number of allegations. These were that:-
- She was subject to a course of sexual harassment by her colleague in question between October 2016 and August 2017;
- She was subject to harassment by her managers through their failure to prevent H’s behaviour in the same period;
- She was subject to direct discrimination by him on the 18th August 2017.
- She was subject to direct discrimination by the Respondent’s decision to dismiss her grievance;
- That the cumulative conduct of H and the claimant’s managers amounted to a repudiatory breach of the implied term of trust and confidence and her resignation was thereby a dismissal and unfair;
- That the respondent failed to pay her contractual notice pay consequent to her dismissal.
- The claimant also alleged that the respondent had failed to pay accrued holiday pay, which the respondent had admitted, in the sum of £801.00.
The respondent denied the claims of discrimination, unfair dismissal or the failure to pay notice pay.
The decision of the Employment Tribunal
The ET found that the Claimant’s work colleague had carried out a course of harassment over a period of 10 months. They also found that the Respondent had not adequately addressed the concerns raised by the Claimant, by failing to comply with its own grievance procedure, by at least acknowledging her grievance. This had resulted in a repudiatory breach of the implied term of trust and confidence due to the mishandling of the Claimant’s grievance and failure to deal with the campaign of harassment she was subjected to by one of their employees. This was the main reason for the claimant’s resignation and amounted to a dismissal under section 95(1)(c) of the Employment Rights Act 1996. This amounted to constructive unfair dismissal.
The claimant’s resignation was without notice and the resignation amounted to a dismissal, therefore, the claim for wrongful dismissal in respect of the failure to pay the claimant a sum in respect of notice also succeeded.
The part of her claim arguing direct discrimination was not upheld as her treatment by management was not held to be materially different to those of a hypothetical male comparator who may have raised a similar complaint. The decision of the manager was not seen in any sense as being influenced by the Claimant’s sex.
The other part of her claim breach of contract, by the failure to pay accrued holiday pay was also upheld and the Respondent was ordered to pay to the Claimant the net sum of £801.00.
Our lawyers’ views on Simalyte v Kentucky Fried Chicken Ltd
Stephen Norton, a Legal Executive at Redmans, commented on the case: “This case represents another useful lesson in what can happen when an employer fails to follow through properly on its own internal grievance or disciplinary procedures. In this case the employee did not get the opportunity of due process in having the opportunity to have her allegations heard and adjudicated upon, leaving her no option but to bring a claim to an ET, where most of the main allegations in her claim were upheld.”
The Employment Tribunal decision in Ms S Simalyte v Kentucky Fried Chicken Ltd (ET/1601209/2017) can be found here.