An employee, labelled as a “Scheming Femme Fatale”, wins £420,000 in an employment tribunal case because of harassment and victimisation.

Volkerrail loses harassment and victimisation case.

An employee has been awarded nearly £420,000 after being harassed by her employer during a grievance process.

The judge commented that “it is a very rare case where there are original allegations of harassment or discrimination, and a grievance or appeal process is also found to be discriminatory or harassing, rather than simply unreasonable or poor”.

So, how did it all go so wrong for the employer in X v Volkerrail Ltd case?

What Happened?

A female employee joined the company in 2019 and initially became good friends with her male manager with whom she worked closely.

Over time the manager made romantic and sexual overtures towards her which were rebuffed. These included:

• • Sending her peach and kissing emojis

• • Sending a message in the early hours of the morning whilst they were staying in the same hotel for work saying “in case it’s not obvious I do really like you but I’m not the best at saying so. I’m cool if you don’t feel the same way & I wouldn’t want it to change anything, but just wanted to let you know”

• • Inviting her out for one to one meals

The employee had been involved in discussions about salary and job roles and it was decided that she was to be offered a lower salary than she had been expecting.

The employee resigned with notice shortly after and later submitted a grievance alleging harassment and discrimination.

Resignation was refused by employer

A grievance process was followed and the employee’s grievance wasn’t upheld. The employee tried to withdraw her resignation but this was refused by the employer.

The employee complained to an employment tribunal about a number of matters including that she had been harassed by the employer during the grievance process and that the refusal to accept the formal withdrawal of her resignation was an act of victimisation. She won these two claims.

The judge made a number of findings including that:

• Those involved in investigating and dealing with the employee’s grievance “sought unreasonably and consistently to play down” the manager’s conduct and “failed meaningfully to consider whether much of his conduct was inappropriate and sexual or otherwise related to the employee’s sex, thereby endorsing it and perpetuating the environment that it had created for the employee” For example, the grievance manager’s finding that a text in which the manager said “[I] can’t stop thinking about you” and that this was “driving him mad” was not sexual, despite the fact that it obviously conveyed romantic, and therefore sexual, interest.
• The purpose of the grievance manger’s handling of the situation “appears to be to exculpate the employee’s manager from the stigma of a finding of sexual harassment by all and any means, whether by attributing blame to the employee or comparing his behaviour to the playground”. Their conduct of the grievance process violated the employee’s dignity once more. Subconsciously, their mental processes were influenced by stereotypical notions of sex and roles in seeking to play down male romantic overtures and their consequences

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To deny the plain and obvious findings that were identified and reject the complaint of sexual harassment is, in all the circumstances of the case, unwanted conduct related to sex and was harassment

• The grievance appeal manager “perpetrated a stereotype of the employee as a scheming femme fatale who had sought to make money from her manager’s pursuit of her, and would not have presented a grievance, had unreasonable salary demands been met”. It was found that subconsciously he adopted a sex related stereotype to find against the employee which was further harassment
• Victimisation had taken place when the employee wasn’t permitted to withdraw her resignation as the employer couldn’t prove that the employee raising the grievance hadn’t influenced their decision

Key Takeaways

This case highlights the importance of employers being alert to grievances and ensuring that they are managed appropriately, fairly and effectively to help prevent claims.

If you receive a grievance from an employee your first step should be to contact us for specific advice on the facts of your case.

Read our blog; Grievances – Three Things it’s Helpful for Every Manager to Know, and find out how to handle grievances like a boss.

Remember, it’s also vital to take appropriate steps to reduce the likelihood of discrimination and harassment from occurring in your workplace.

Have you checked that you’ve got the policies and procedures you need and that your employees and managers have been appropriately trained? It can make all the difference.

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