TUPE and Indirect Discrimination in Anne & Others v Great Ormond Street Hospital
EAT confirms leaving transferred staff on inferior terms can amount to indirect discrimination, even under TUPE.
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Case Study
We always talk about the importance of training staff on equality in the workplace, and the case of Hunter v Lidl is a classic example of why employers MUST ensure that policies are well publicized, enforced, and adhered to.
Miss Hunter began work for Lidl as a teenager and was not made aware of any internal policies. Almost immediately, she was subjected to unwanted physical contact and inappropriate comments from colleagues. When she raised this with the store Hunter v Lidl manager, she was told to “take it as a compliment,” and the matter proceeded no further.
The comments continued, and she had her bottom slapped, and her thighs and waist touched. A deputy store manager made comments about her underwear, her physical appearance, and the desire to have sex with her. No action was taken against the deputy manager, and the employee resigned, claiming constructive dismissal and sexual harassment.
The Employment Tribunal found that she had been harassed and that despite Lidl having a policy that stated such behaviour was not tolerated, a culture of lewd remarks and unwanted contact had, in fact, become commonplace.
Case Study
The ET concluded that the policy was ineffective in controlling employee behaviour, and a lack of training and awareness had allowed this to happen.
The harasser claimed not to have known that their behaviour was offensive, and while the ET accepted this, the offence is still made out because the intention is not relevant where the behaviour causes an intimidating and humiliating environment. Adequate training would have addressed this.
The compensatory award of £50,884 included a hefty £22,000 injury to feelings award, which is at the high end of the middle band. When the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force later in 2024, this type of case could have an additional 25% uplift in compensation applied.
The legislation, which is due to come into force in October, will place a new requirement on employers to take reasonable steps to prevent sexual harassment from happening in their workplace. Failure to do so will mean enforcement action by the Equalities and Human Rights Commission and significant increases in compensation (including an uplift in associated claims for multiple forms of harassment, e.g., age and/or sexual orientation).
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