Employee treated like ‘femme fatale’ by HR was harassed and victimised, tribunal rules

Employer perpetrated stereotype of worker as someone who ‘sought to make money’ from manager’s unwanted sexual conduct

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An employee was awarded nearly £420,000 in damages after her manager made multiple romantic advances.

The Leeds tribunal found a female employee – known as X – at VolkerRail experienced sex-based harrassment from her manager, who agreed to give her a £20k pay rise, and was victimised by the company after it refused to accept her withdrawal of her resignation.

Employment judge Joanna Wade said HR perpetrated a stereotype of X as a “scheming femme fatale who had sought to make money from the [manager’s] pursuit of her, and would not have presented a grievance had [her] unreasonable salary demands been met”.

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The tribunal heard that X joined VolkerRail in summer 2019, negotiating a salary of £55,000 with a “reasonable expectation” that it would progress.

X formed a friendship with an anonymous male colleague, joining his team in November. The tribunal said it received more than 600 pages of electronic communication between X and the colleague, and described the proportion of the communication that was personal and not work related as “extraordinary”. 

It said it reflected an “obvious enjoyment of each other's company that goes far beyond a good working relationship”, adding that the messages that “cross a line” and reveal a romantic intent are a “drop in the ocean” compared to the “volume of the intense, non work-related and work-related communications”. 

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In autumn 2019, the colleague asked X if she would like to move to his team fully, and this happened informally around mid-November. The tribunal said the pair had “plenty of discussions” about her salary and the need to justify any pay rise for X. He apparently “endorsed and supported” her aspirations for a salary of £70,000, and did not give her any reason to think it was “inflated, unreasonable or unrealistic”. 

From 14 November onwards, there were instances where he sent X a ‘peach’ emoji – which is often used in text conversations to suggestively signify buttocks – and made drunk calls to her while on a night out in Manchester. The tribunal said it was “clear” that he was developing a romantic liking for X as he made “multiple late-night drunken calls and regularly invited her to one-to-one dinners” and that X was “unavoidably alive to the romantic overtures being expressed”. 

On 29 November, he officially became X’s line manager, and their communication of friendly messages continued. In January 2020 he texted her, saying: “I really like you and can’t stop thinking about you,” adding that working so closely with X was “driving me mad”. 

The tribunal heard the message distressed the employee and the declaration was “unwelcome” but she “gave him an out”, and the two continued working together.

Between February and March 2020, the pair continued to discuss her salary and the line manager provided HR with a formal note on the employee’s expectation of £70,000.

In March, pandemic lockdown measures were introduced but the line manager continued to make “unwise” approaches, including suggesting another meal and saying the employee “looked like the star of live action Disney film Aladdin”.

Between 30 March and 20 May, the tribunal said the manager engaged in discussions about X and another colleague’s salary being raised as the pandemic made them “indispensable”. However, the tribunal said the “reality” was that X was not given a pay rise because “the pandemic hit, focus was lost and salary and reorganisation decision making was slowed”. It added that this was “bad luck” for X but was “entirely unrelated” to romantic declarations. 

X was instead offered £60,000 on 20 May, via her line manager who suggested she raise a grievance if unhappy, but X said she would instead resign. 

The tribunal said X’s resignation letter clearly communicated “constructive dismissal language and breach of trust”, and added that it was “plain and obvious” to anyone who reads it, as X decided to not focus on the manager’s conduct but the failure to deliver salary. 

Over the following weeks, there was discussion between the employee, members of management and HR about whether to reconsider her resignation. In June, the line manager told X the salary offer remained £60,000 and she was being offered a ‘lead’ job title, but she was unhappy the position was not a ‘head of’ role.

On 1 July, she submitted her harassment allegations and a grievance to HR.

The tribunal heard that HR employee Ms Diggles and the appointed member of staff for the investigation, Ms Kennedy, had decided the grievance “was likely in bad faith” early in the process.

HR met with X on 10 July, but did not ask about the harassment document nor the salary discussions. During the meeting, the tribunal heard X gave “no indication” that her resignation should be processed.

On 30 July, Kennedy told X that, although her investigation found there was inappropriate behaviour that harassed the employee, it was not sexual harassment. 

Kennedy also suggested X tell her parents about the resignation, but X said she had been pushed to reconsider her resignation and did not think it was progressing because of the discussions. But Diggles said her last day would be 20 August. 

On 6 August, Diggles emailed X acknowledging her resignation, but X responded: “My position is that my resignation was withdrawn pending the resolutions.”

Diggles said there had to have been a mutual agreement, not a unilateral decision, to withdraw the resignation, and so her contract would be terminated on 20 August.

On 10 August, X launched an internal appeal, but it found there was no sexual harassment.

While the claims for sex-based harassment and victimisation were upheld, a claim of sexual harassment was dismissed.

In a remedies hearing, X was awarded £419,352.

“It is a very rare case where there are original allegations of harassment or discrimination, and a grievance or appeal process is also found to be discriminatory or harassing, rather than simply unreasonable or poor,” Judge Wade said.

She added that the employee “remains unable to work and to do ordinary things; she remains unable to tell her parents or family or community what has happened; she is living a fiction that she remains working from her bedroom, when in truth she is unable to get out of bed at times”.

Julie Morris from Keystone Law, the claimant’s solicitor, said the case “offers a salutary lesson for any employer considering following a perfunctory, inadequate or biased grievance process”.

She added that the tribunal shows the importance for those investigating grievances to do so properly and “to be trained accordingly and to investigate with an open mind”.

VolkerRail has been contacted for comment.