In the case of Wade v Young & Co’s Brewery Ltd & M McLaughlan ET/2301162/16 & ET/2302707/16 the Employment Tribunal held that a female employee was sexually harassed when her manager pulled down her tracksuit bottoms.
The facts in Wade v Young & Co’s Brewery Ltd & M McLaughlan
Ms Wade started working for Young’s & Co Brewery Ltd (“Youngs”) on 10 July 2013 as an assistant manager. In 2016 Ms Wade was working at the Crown Tavern, and the manager at the pub was Mr McLaughlin.
On 10 February 2016, which was normally not a day that Ms Wade worked, she attended work in order to do a stocktake. Ms Wade wore tracksuit bottoms to do the stocktake, despite a Youngs policy which states that tracksuits should not be worn when working (including when doing stocktakes). Ms Wade alleged that on that day she was talking to colleagues when Mr McLaughlin walked passed and pulled her tracksuit bottoms down to her knees – Ms Wade found this particularly distressing as she was not wearing any underwear.
Ms Wade went home that evening and told her mother what had happened. She asked her mother to contact Mr Kennedy, a manager at head office, and her mother did so the next day (11 February 2016). Mr Kennedy stated that he would start an investigation into the matter.
A grievance investigation was commenced and evidence collected – the witness statements that Mr Kennedy collected in the course of the investigation were contradictory, with three statements undermining Ms Wade’s version of events and only one broadly supporting it. Mr Kennedy found that Mr McLaughlin had tugged at Ms Wade’s trousers in passing, but that he did not believe that this action constituted sexual harassment. An appeal upheld these findings.
Mr McLaughlin was subsequently subjected to a disciplinary on the grounds of inappropriate behaviour and given a final written warning.
In July 2016 Ms Wade started a relationship with a colleague, Mr Santos, a supervisor at the pub she was then working at (Ms Wade was working as an assistant manager and responsible for Mr Santos). On 8 July 2016 Mr Santos was allowed to go home two hours early by Ms Wade – the reason that she gave that permission was that she was going to Wireless Music Festival with Mr Santos. Mr Finch, the manager of the pub Ms Wade was working in at that time, was not asked for his permission, and the head chef complained the next day about Mr Santos going home early.
The next day Mr Santos was 30 minutes late to work. He arrived with Ms Wade (who was on time for work). Mr Finch approached Ms Wade and stated to her that he was concerned that there could be the perception that Ms Wade was condoning or authorising Mr Santos’ lateness. Mr Finch approached them and asked if they were in a relationship – they confirmed that they were. Mr Finch then stated that if this was the case then it may be better if one of them transferred to another of Youngs’ pubs.
Ms Wade attended work on 9, 10, and 11 July 2016. On 12 July 2016 Ms Wade came to work and submitted her notice of resignation. The reason that she gave for her resignation was that she was unhappy with the way that Mr Finch had spoken to her on 8 July 2016 and that she felt that there were “double standards” at Youngs, in that she alleged that all three of her previous General Managers had been in relationships with colleagues.
Ms Wade subsequently submitted Employment Tribunal claims for sexual harassment, direct sex discrimination, and constructive unfair dismissal.
The decision of the Employment Tribunal in Wade v Young & Co’s Brewery Ltd & M McLaughlan
The Employment Tribunal dismissed Ms Wade’s claims for constructive dismissal and direct sex discrimination, but upheld her claim for sexual harassment.
Constructive unfair dismissal (section 94 Employment Rights Act 1996)
The Tribunal rejected Ms Wade’s claim for constructive unfair dismissal – it found that the most likely reason for Ms Wade’s resignation was because her commute from Eastbourne to her workplace in London was too great.
Direct sex discrimination (section 13 Equality Act 2010)
The Employment Tribunal found that Ms Wade was not subjected to direct sex discrimination, finding that Mr Kennedy’s conduct in undertaking the grievance investigation and that Mr Finch’s conduct on 9 July 2016 did not constitute unfavourable treatment or that she was subjected to such unfavourable treatment because of her sex.
Sexual harassment (section 26(2) Equality Act 2010)
The Employment Tribunal held that whether Mr McLaughlin had pulled Ms Wade’s tracksuit bottoms down (on 12 April 2016) slightly or, as alleged by Ms Wade, down to her knees, the act of pulling down her tracksuit bottoms was conduct which was sexual in nature which violated Ms Wade’s dignity, particularly given she was not wearing underwear. The Tribunal therefore upheld Ms Wade’s claim for sexual harassment, although it noted that it appeared that the effect on Ms Wade was unlimited.
The Employment Tribunal ordered that a remedy hearing be held in due course in order to consider compensation.
Our solicitors’ view on Wade v Young & Co’s Brewery Ltd & M McLaughlan
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “The Employment Tribunal held in this case that the simple act of pulling the Claimant’s trousers down (whether a slight tug or otherwise) was a sexual act that was unwanted by the Claimant and violated her dignity, therefore upholding her claim for sexual harassment.”
The judgment of the Employment Tribunal can be found here