In the case of Miss ME Jurkowlaniec v Aykut Gul (Case No 4107131/2019), the Employment Tribunal (Scotland) found in favour of the claimant in terms of payments outstanding to her from the respondent as well as finding in favour of the claimant who, the Tribunal found, had been subject to a course of conduct which amounted to sexual harassment within the terms of section 26(2) of the Equality Act 2010. Finally, the Tribunal found the respondent had failed to provide the claimant with a statement of particulars in accordance with section (1) of the Employment Rights Act 1996.
The facts in the case of Miss ME Jurkowlaniec v Aykut Gul
The claimant began working for the respondent as a waitress on 15 October 2018. She was not provided with a statement of particulars for her employment nor was she provided with payslips The claimant was aware from the first shift that she worked that the respondent appeared to touch female waiting staff including herself more than was appropriate.
The respondent was advised of the claimant’s concerns and met with the claimant. The respondent’s wife was also present at this meeting. The respondent indicated he was not angry at the claimant’s comments but wanted her to understand that he operated a family business and treated everyone as family.
The claimant made it clear to the respondent that she did not like to be touched. The respondent advised the claimant that he was opening a new shop soon and that she would be promoted to be supervisor of that shop. The respondent continued to subject the claimant to unwanted touching. The respondent touched the claimant on her hips, waist, back and shoulders. This touching was never necessary, for instance to ask the claimant to move out of the way. The respondent would hold his hands on the claimant for a few seconds when he touched her. This made the claimant feel very uncomfortable. The respondent was an older man and the claimant was a 25-year-old woman. The claimant did not feel she could complain to anyone as the respondent owned the shop and the only other senior members of staff were his family.
The claimant told the respondent that she was undergoing therapy for depression. On 13 March 2019, the respondent again subjected the claimant to unwanted touching. The claimant again told the respondent that she did not want this. The respondent told the clamant that her attitude needed to change and told her to take the next day off. When the claimant returned on 15 March 2019, she was ignored by the respondent and his family and the claimant saw the respondent touching another waitress inappropriately. After he shift, the claimant was telephoned by the respondent and told not to return to work. The claimant posted an account of her treatment on social media and was threatened by the respondent and his family to take it down. The claimant attempted to recover monies due to her. In the meantime, her depression and self-esteem worsened, and she was unable to continue to afford her therapy sessions.
The decision of the Employment Tribunal
The respondent did not appear at the Tribunal hearing. The Tribunal, with little difficulty, as they found the claimant to be a credible witness, were able to arrive at a decision in favour of the claimant.
As well as agreeing that the respondent pay the monetary sums owing to the claimant, the Tribunal considered that the conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, offensive or degrading environment for the claimant especially as the claimant had had to continue to work in the respondent’s business, for financial reasons. The claimant did not make a claim for loss of earnings as she found alternative employment. However, the Tribunal awarded the claimant £9500 – an award for injury to feelings in the mid-range of Vento guidelines (Vento v Chief Constable West Yorkshire Police  EWCA Civ 1871) and considered this appropriate as the conduct was not one off and continued over a period of 5 months. The claimant was already vulnerable, given that she was suffering from depression and undergoing treatment and the fact that the respondent was aware of this and did not desist from the treatment despite the claimant asking him to, on a number of occasions, was an aggravating factor.
The Tribunal decided that the claimant should have received a statement of particulars as required by section 1(1) of the ERA 1996 and also considered section 38 of the Employment Act 2002 which states that where a tribunal has made an award to an employee in terms of a claim under Schedule 5 of that Act (which includes a claim under the Equality Act and a claim for unlawful deduction from wages), and if when the proceedings are begun, the employer is in breach of his duty to the employee under section 1(1) of the ERA 1996, the tribunal must, subject to section 5, increase the award by the minimum amount (which is two weeks’ pay).
In total, the Employment Tribunal awarded the Claimant the sum of £12,338.88 (inclusive of interest).
Our solicitors’ comments on the case of Miss ME Jurkowlaniec v Aykut Gul
Caroline Lewis, a Senior Associate in the employment department at Redmans, made the following comments on the case: “This case reminds employers of the need to respect employees’ rights not only in relation to documentation and contractual payments that should be provided to them but in the treatment they need to be afforded to ensure a fair, safe and healthy workplace”.
The decision of the Employment Appeal Tribunal in Miss ME Jurkowlaniec v Aykut Gul (Case No 4107131/2019) can be found here.