Laddish culture costs Lidl £50,000 after female employee wins sexual harassment case

We often talk to clients about the important role line managers play in making their workplaces safe and legally compliant places to work. Some managers are naturally good at managing people, know how to set the right tone and make sure that their staff behave appropriately. But most need training, guidance and support to get this right. 

In Hunter v Lidl Great Britain Ltd, the employer had to pay significant compensation to a former member of staff who was sexually harassed by her manager, and other members of staff, who thought their behaviour was normal “workplace banter”. 

Background

Miss Hunter started working for Lidl as a teenager. She was almost immediately subjected to unwanted advances and comments by a fellow employee. She complained to her store manager, who told her to “take it as a compliment”.  He also said that he “wasn't surprised” by what had happened and made a joke about it. 

She continued to be harassed, including by a deputy store manager who touched her bottom, thighs and waist, attempted to hug her and, on one occasion, to slap her bottom. He made a number of highly sexualised comments to her about her sex life, underwear and appearance. 

She resigned and issued a number of claims including sexual harassment. 

Decision

The tribunal accepted that Miss Hunter had been sexually harassed and that the behaviour she had endured reflected the culture of the store. Workplace ‘banter’ was commonplace and used by some managers to “lighten the atmosphere”. Managers took part in discussions which ranked female members of staff by their perceived attractiveness and didn't appear to understand that their comments were offensive. One manager trotted out the excuse that he didn't intend to cause offence which, as regular readers of this blog will know, cuts no ice with a tribunal as it's the impact on the victim that counts. 

Lidl could have avoided liability if it had taken all reasonable steps to prevent the harassment Miss Hunter had suffered, but it didn't come close to establishing this because: 

• Senior managers didn't step in to prevent harassment
• Lidl failed to train managers on its anti-harassment policy or to explain their duty to create an environment where harassment was not tolerated
• Lidl failed to deal with complaints in line with its procedure

Miss Hunter was awarded £50,884.62 which included £22,000 for injury to her feelings, plus interest on that part of her award of over £7,600. This was at the higher end of the middle Vento band that applied at the time and reflects the fact that she experienced sexual harassment over a prolonged period.

What lessons can other employers take from this decision? 

There’s been legal protections in place for many years to protect staff from being sexually harassed by their colleagues and other people under the control of their employer. Many organisations have policies which spell out the standards of behaviour they expect their staff to follow and have training programmes to support this. Yet sexual harassment is widespread and under-reported. And it’s not limited to SMEs or particular sectors. This year, McDonalds acknowledged that it had a serious problem with sexual harassment and entered into a legal agreement with the Equality and Human Rights Commission in which it promised to eliminate it from its restaurants. IKEA signed a similar legal agreement following a complaint about sexual harassment and assault from a former member of staff which it handled badly. And the reputation of the CBI has been severely damaged following allegations of sexual misconduct and its admission that it harboured “toxic sexual predators”.   

A recent TUC survey revealed that three in five women have been sexually harassed at work, rising to two in three women in the 25-34 age bracket. The vast majority don’t report this to their employer for many reasons including fear of repercussions, lack of awareness regarding their rights and fear of not being taken seriously. Those concerns are heightened for people of colour, in the LGBT+ community and those with disabilities, who already face greater discrimination in the workplace. 

The government does not think that employers are doing enough to stamp out sexual harassment and has introduced legislation which will impose a new duty on them. The Worker Protection (Amendment of Equality Act 2010) Act will require employers to take reasonable steps to prevent sexual harassment in their workplaces. If they fail to do so, a tribunal can award a claimant additional compensation of up to 25% of their compensatory award. It comes into force in the Autumn of 2024 and employers need to start preparing now. You can read more about the new duty in our blog post here. 

To stand the best chance of meeting this new test, we suggest that you: 

1. Critically evaluate the culture in your organisation

Employers can underestimate the extent of the problem in their workplaces. The threshold for someone to move from ‘putting up with’ sexual harassment to reporting it can be very high. This means that often only the most extreme and serious forms (for example, serious sexual assault) are those that are reported. 

You may need to find out how much of a problem this is in your workplace by asking staff about their experiences via confidential surveys or focus groups. If they have been sexually harassed, ask them to confirm if this was by a work colleague or a third party. It is also helpful to find out if they reported the incident/s, and if not, the reasons why. 

2. Train your staff

Once you have this information, you will need to focus on your own staff and critically evaluate your training and who receives it. All members of staff should undertake equality and diversity training which includes specific strands on sexual harassment. The training should explain what sexual harassment is. Staff need to understand that conduct of a sexual nature can cover verbal and non-verbal conduct such as sexual jokes, making sexualised comments about other people, displaying or sharing pornographic photographs or images as well as unwelcome sexual advances, touching, and forms of sexual assault. Staff should be told not to touch other people, even if their intentions are friendly rather than sexual. 

It's also important to advise staff that they must behave appropriately if they interact with colleagues via WhatsApp or other social media channels (irrespective of whether these are work related) and when they socialise with colleagues. Whilst employers will not usually be held legally responsible for the misconduct of their staff outside of work, or work-related events, issues that arise in these contexts can damage working relationships and cause other knock on effects, such as stress and anxiety. 

It's particularly important to address banter. In 2020, the Fawcett Society published a comprehensive report on employer actions to prevent and respond to workplace sexual harassment. It suggests that one of the reasons why sexual harassment is very common in the UK is because it is normalised and seen as acceptable. It believes that employers tend to focus their strategies on preventing sexual assault at the expense of other forms of sexual harassment, such as unlawful ‘banter’, and everyday offensive behaviour that encourages sexism; this can create the context in which more serious offences occur. 

3. Train your managers

Managers will need additional training to help them to reinforce this message and step in when necessary. They need to recognise when a normal light-hearted conversation oversteps the mark, intervene to diffuse the situation, and demonstrate good practice by how they speak and behave towards others. You shouldn’t assume that this is a skill set all managers have and may need provide support and training to help them to develop these skills.  

4. Make it easy to report incidents

Your policies should clearly explain how staff can make complaints. Many larger organisations have developed web forms or app's as an alternative to, or in addition to grievance procedures. Employees should be able to report incidents anonymously provided they understand that you may not be able to deal with it effectively unless they are prepared to make a named report later.

5. Deal with complaints appropriately

All employees should be treated with respect and empathy and may need on-going support during the process. You should set out a timeframe for the investigation and keep the complainant aware of the steps you are going to take and the outcome you reach. Anyone who is guilty of bullying or harassing a colleague should be disciplined. Anyone who makes a complaint should be able to work normally.

6. Update your policies

Make sure that you have appropriate policies in place and reflect your approach. Review these regularly to ensure that they remain fit for purpose. 

How we can help

We can deliver training to your managers on how to deal with these issues. We can design a programme for you and have created online options too. We have created two new online diversity and inclusion modules to help employers properly train staff, including in relation to sexual harassment. One module applies to all employees, and the other module focuses on managers to help them to understand the key role they play in ensuring that the people they manage behave appropriately. 

If you'd like to know more about these, please speak to Charlotte Rees-John, Jenny Arrowsmith or Gordon Rodham.

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Irwin Mitchell's Retail, Leisure & Hospitality sector advises businesses ranging from national retailers and restaurant groups to international beauty brands and leisure operators.  For more details visit our website.

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