In circumstances where an employee’s complaints of various incidents of sexual orientation harassment and bullying had been flatly denied by the alleged perpetrators, the employment tribunal had adopted a permissible approach when it upheld those complaints for which there was corroboration.
The appellant employer (M) appealed against a decision of the employment tribunal to uphold complaints of constructive unfair dismissal and harassment on the ground of sexual orientation brought by M’s former employee (W). W had revealed his homosexuality at a sporting event sponsored by M. His sexual harassment complaints centred around a number of incidents which occurred after that event involving various employees of M. W went off sick and while off work submitted a written grievance complaining of a number of incidents of bullying and sexual orientation harassment. M dismissed W’s grievance at a meeting without discussing the complaints with him. W’s appeal was also rejected and in response he resigned. M argued that (1) the tribunal had failed to give adequate reasons for its decision to uphold four of W’s allegations of harassment while rejecting eight others; (2) some of the incidents complained of had occurred before the coming into force of the Employment Equality (Sexual Orientation) Regulations 2003 and therefore could not constitute the statutory tort; (3) its treatment of W’s grievance had been cured by the appeal process.
HELD: (1) The onus had been on W to establish on the balance of probabilities the factual allegations of harassment. Given that all the alleged perpetrators had denied the allegations, the tribunal sought to find corroborative evidence for each individual complaint. Where that evidence was found, the tribunal upheld the complaint. The tribunal had adopted a rational and plainly explicable approach to its fact-finding in relation to the individual allegations of sexual harassment and had complied with the duty to give reasons. (2) The allegations upheld involved a continuing course of conduct which stretched past the operative date of the Regulations. (3) The appeal process did not cure the repudiatory breach represented by M’s treatment of W’s grievance, Bournemouth University Higher Education Corp v Buckland (2010) EWCA Civ 121 applied. Accordingly, W was entitled to rely on the breach to support a claim for unfair constructive dismissal.
M&L SHEET METALS LTD v S WILLIS (2010)
EAT (Judge Peter Clark, K Mohanty, SM Wilson) 12/3/2010