A former teenage doughnut decorator has been awarded £31,000 after her employer failed to properly investigate a male colleague sexually harassing her, and then swept her complaint ‘under the carpet’ and dismissed her.
An employment judge accepted claimant Miss Merriman’s evidence that her colleague Oliver Horn “bear-hugged” and rubbed flour on her before grabbing her bottom as she backed into a corner.
The tribunal panel – which said the respondent’s HR manager appeared to have been given the title for “PR reasons” – ruled that an investigation into the incident by Bugibba Independent, trading as Project D, clearly favoured Horn in an “unexplained and inappropriate” way and pressured Merriman, then 17, to “draw a line under matters and to move on”.
Bear hug incident
Merriman started work at Project D in October 2020 as a doughnut decorator, which involved finishing doughnuts prepared by the bakers, one of whom was Horn.
The tribunal found that two months into the job, Merriman and Horn were alone in the canteen when the bear-hugging incident occurred. It was satisfied that Horn said words to the effect of “I bet your boyfriend wouldn’t like that” and she had replied, “I bet your missus wouldn’t”. The panel rejected Horn’s denial of having touched her at all.
Merriman immediately reported the incident to her supervisor, Ms Didluch, who described her as “extremely distressed”. Didluch discussed formally reporting the matter but Merriman said she did not want to get Horn into trouble for what he had done, provided that nothing else happened in the future.
The tribunal accepted Merriman’s evidence that following the incident her previously friendly working relationship with Horn then soured. On occasions Horn made comments to her such as calling her a “pot washer”, saying she was paid less than him, and telling her she needed chewing gum because her breath smelt.
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The tribunal was satisfied that the souring of the relationship and his treatment of her was because she had rejected his sexual advances.
In March 2021, Horn was looking for Ms Caley, another supervisor, and he asked Merriman where she was. Merriman explained she was with another member of staff who was upset and suggested Horn leave her for the time being.
Horn insisted he needed to know and shouted at Merriman. She became upset and remarked to another baker that it was lucky she had not reported Horn about the previous incident. Horn then shouted at Merriman: “Come the fuck here.”
She was frightened and refused. He then shouted “fuck you” and walked out.
Caley, who had heard Horn shouting, became aware of what had happened and spoke to them both individually.
Merriman was told there would be an investigation into the bear-hugging incident and subsequent events and was sent home that day, on full pay, due to her distress. Horn was also sent home on full pay.
The investigation only consisted of speaking to the pair and two other colleagues. The panel decision said: “It remains unclear to us why only two members of staff were interviewed or how they were selected.” Didluch, who Merriman had spoken to immediately after the bear hug incident, was not interviewed.
Woefully inadequate
The tribunal found that one of the company’s directors, Max Poynton, reassured Horn that no further action was going to be taken in relation to the allegations, and told Merriman there was no evidence to substantiate her allegation.
The judgment said: “That was despite the fact that there was more evidence than there was not to suggest that something had happened as the claimant had complained of.
“We find that the respondent simply decided to overlook that and carried out a woefully inadequate investigation. It was in our view easier to not make any finding about any inappropriate conduct on the part of Mr Horn than it was to make any positive finding.”
A month after the swearing incident, Merriman received a letter from Carol Bond, HR manager. It said: “I regret to inform you that you have now been allocated all the shifts that we are able to offer you at Project D and I am writing to advise that we can no longer support your employment as a decorating specialist within the company.”
‘HR’ for PR reasons
The tribunal said: “The reason that Mrs Bond was given the title of HR Manager appears to be for public relations reasons.”
Bond told the tribunal she was asked by the directors not to issue employment contracts to specific members of staff, including Merriman, because they were unsure if they would be kept on. Poynton said that nobody, save for a select few people in the office, had been given employment contracts.
The absence of a written employment contract, however, does not negate an employment relationship said the judge, adding that the panel was satisfied that at no time was Merriman told she was only a casual worker, nor did that reflect the reality of the arrangements.
Project D’s position was that Merriman was dismissed because there had been a downturn in work following a busy Easter period. The tribunal did not accept that, citing press reports and emails that indicated otherwise.
An email from Bond, days after the swearing incident, read: “Project D has grown at such a rate, that this has been challenging to increase doughnut production and manage the bakery environment at the same time. As you are aware, we are currently looking to employ new team members to take the pressure off existing colleagues.”
No hesitation
The panel considered “whether the conduct had the effect or purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her”. It had “no hesitation” in concluding that it did.
The judgment said: “The incident amounted to an act of harassment contrary to Section 26(2) of the Equality Act 2010 and this complaint is therefore well founded and succeeds.”
The decision also said: “It did appear to us that the favouring of Mr Horn in the way that the respondent did was suggestive of the fact that it was far easier to sweep what was a very serious complaint under the carpet than it was to properly investigate it and risk having to accept that Mr Horn had sexually harassed the claimant in the workplace.”
A remedy judgment ruled that Project D subjected Merriman to unlawful discrimination and victimisation and ordered it to pay her £31,400. This comprised financial losses of £6,000 and injury to feelings of £25,400.
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