In the case of Ms A Nartowska v Fluid Options UK Ltd ET/2414596/2019 the Employment Tribunal held that an employer’s failure to investigate allegations of sexual harassment, and its subsequent dismissal of the employee who had complained of sexual harassment, constituted acts of harassment and victimisation.
The facts in Ms A Nartowska v Fluid Options UK Ltd
Ms A Nartowska (the “Claimant”) started work for Fluid Options UK Ltd (the “Respondent”) as a cleaner in April 2019, working at a Five Guys restaurant.
During the course of the Claimant’s employment she was subjected to sexual harassment by another member of staff, Mr Korzenioski, who worked alongside her as a cleaner at the same restaurant. On 24 June 2019 she raised complaints with the Respondent that she had been subjected to sexual harassment by Mr Korzenioski – this included allegations that the Respondent had touched her breasts on 4 May 2019, that he had then put his hand round her waist on 24 May 2019, and that he had verbally abused her on 24 May 2019 (telling her to “shut your mouth you fucking bitch”). Mr Korzenioski had previously used language such as “shut the fuck up or I’ll hit you” and “I’ll destroy your car after work”, as well as referring to her as a “whore”.
The Respondent did not act on the allegations, failed to reprimand Mr Korzenioski despite the seriousness of the allegations, and it subsequently transpired that the person investigating was a friend of Mr Korzenioski living near him in Poland.
The situation became so bad after the third incident (on 24 May 2019) that the Claimant had to take sick leave from 26 June to 16 of July 2019.
After the Claimant submitter her complaints regarding Mr Korzenioski he resigned, apparently for personal reasons, but sought to be reinstated on 22 July 2019 (claiming he was innocent of all the accusations).
On the evening shift of 8 and 9 August 2019 a complaint was made by two duty managers (who were employed by Five Guys, not the Respondent). The complaint concerned an incident which had apparently taken place in the toilets of the Five Guys restaurant involving two cleaners. The email did not identify the two cleaners but simply said that they were male and female and had been seen kissing beforehand, that they had entered the toilets together, and that the female cleaner had walked out of the toilets leaving the male cleaner inside the toilets. The managers also reported that the male cleaner had apparently left a bag of suspected cocaine sitting on the sink. The Claimant was accused of being one of the cleaners using drugs and both were asked to be removed from the building. However, the Claimant was at the time of the incident smoking outside of the building with a colleague. This colleague confirmed that he had been with the Claimant at the relevant times and that he had not seen her with any drugs.
On 9 August 2019 the Claimant (and the other male cleaner) was dismissed with immediate effect, without the Claimant having the opportunity to defend herself and put her side of the story. This was confirmed in a letter from the Respondent to the Claimant dated 12 August 2019.
The decision of the Employment Tribunal
The Employment Tribunal found by a unanimous judgment that the Claimant’s claim for harassment contrary to Section 26 of the Equality Act 2010 was well founded and succeeded, finding that the Claimant had been subjected to sexual harassment on the following occasions:
- The Respondent failing to take the Claimant’s allegations seriously;
- The Respondent failing to undertake a proper investigation into the allegations made by the Claimant; and
- The Respondent failing to re-assign Mr Korzenioski after the Claimant had made her complaint regarding his behaviour
The Employment Tribunal also found for the Claimant in her claim for victimisation contrary to Section 27 of the Equality Act 2010, based on the following:
- The Respondent failing to undertake a proper investigation into the allegations made by the Claimant;
- Dismissing the Claimant on 9 August 2019
Finally, the Employment Tribunal found in favour of the Claimant’s claim for breach of contract, holding that the Respondent should have carried out a proper investigation and paid the Claimant her contractual notice pay. A remedy hearing was scheduled to take place remotely on 22 February 2021.
Our lawyers’ views on the case
Stephen Norton, a legal adviser at Redmans, commented: “In this case the Claimant ticked all the boxes for harassment, victimisation and breach of contract – the employer failed to take her allegations seriously, assigned a friend of the alleged perpetrator to deal with the investigation, and then summarily dismissed the Claimant on allegations which would have been easily disproven if a proper investigation had been carried out.”
The decision of the Employment Tribunal in Ms A Nartowska v Fluid Options UK Ltd ET2414596/2019 can be found here.