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Ask About… Retail, Fashion and Hospitality

16 November 2018

Many of our clients in the retail, fashion and hospitality sector face similar HR issues. Each month one of the members of our team will identify an issue, ask how you would deal with it and provide our advice. This month we asked Lucy...

I am the operations director of the London branch of a chain of hotels. For a while, I have been concerned about the “touchy feely” way our employees sometimes interact with each other, and there is a particular situation I am now very concerned about.

I recently overheard a female employee commenting that she could claim sexual harassment because a male colleague had tapped her behind, to give him some space, as he was passing near her at one of the tills in the hotel restaurant. The female employee is only three months into her six-month probationary period. The hotel’s general manager spoke to me last week about her because he was planning to terminate her employment at the end of her probationary period. She has been a consistently poor performer and also her attendance is unsatisfactory.

I’m now wondering whether we should just terminate her employment right now, before she raises a complaint about the male colleague. We would have dismissed her anyway at the end of the six months. Please let me know how I might proceed?

A.  Fire the female staff member. Any employee, regardless of length of service, can make a harassment claim but the type of conduct you have described won’t count as harassment. The male colleague was merely moving her out the way to get his job done.

B.  The employee could bring a claim for harassment, despite having only been there three months, although whether she would succeed would depend on the precise circumstances. Sacking her now may create complications, particularly if her poor performance has not previously been documented and/or she has already raised a complaint about the colleague’s behaviour.

C.  The employee concerned has been with you too short a time to make any claim against you. For future notice, this kind of behaviour could amount to harassment but, for people working in hospitality, it is hard to prove. This is because they are presumed to have consented to certain levels of colleague contact by joining the industry.

D.  This definitely sounds like harassment. You need to fire the perpetrator immediately before matters escalate, and ask the female employee not to mention the harassment to anyone else so as to minimise damage to the business. Tell her you will keep her on, even though she’s a poor performer, as long as she does this.

The correct answer is B.

Although employees cannot normally claim unfair dismissal until they have at least two years’ continuous employment, they are protected against unlawful discrimination from their first day of work (or before, if the claim relates to applying for a job). This includes the right to make a claim of sexual harassment. For such a claim to succeed, the employee must show that the conduct in question was: (a) unwanted; and (b) had the purpose or effect of violating their dignity (under the test set out in the Equality Act 2010).

If you have a poor performer who hasn’t completed their probationary period, dismissing them would normally be straightforward. Where, however, the poor performance coincides with the employee making a grievance about discrimination – or, for example, a whistleblowing complaint - they may then be able to claim automatic unfair dismissal despite having less than two years’ service.

In such cases, the employee will need to demonstrate causation - i.e. that the dismissal was because of their grievance or complaint, rather than poor performance. This is why it is always advisable to ensure that an employee’s poor performance is properly documented. You can legitimately rely on any documentation that predates the grievance/complaint in order to demonstrate that this was the real reason for the dismissal.

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