A waiter was harassed after her manager told her to wear make-up to her next shift, saying she looked “tired and unpresentable”, the London Central Tribunal has ruled.
As part of Jahnayde Henry’s evidence, her lawyer, Mr K Newman, attempted to submit a series of polygraph results undertaken by Henry, which she claimed show that the incidents she described “definitely took place”. Newman claimed the results had a 98 per cent accuracy.
However, the tribunal determined that “taken on their own terms, the test results would be of little evidential value with regard to the issues that the tribunal has to decide”, as the results simply showed that Henry believed what she was saying was correct, as opposed to whether they were actually correct.
It continued: “It would be a considerable step to admit evidence of this nature. The tribunal would have to be informed of, and evaluate, the science behind the test, the techniques involved and how reliable it is. It would not be a matter of accepting at face value the statement that it is 98 per cent reliable.
“The tribunal members were not aware of any previous cases in which this has been done, or in which evidence of this nature was admitted. It would not be practicable to investigate such matters at this stage of this case.”
Despite this, the tribunal found that her claim of harassment was well founded and the parties were invited to agree on a remedy to suit the successful harassment claim. Her claims of race discrimination were unsuccessful after it was deemed that, while the manager was critical of her, this was down to her performance rather than her race.
The tribunal noted that they found Henry’s evidence regarding certain allegations in her issues list “differed somewhat” from how they had originally been described and felt she had “conflated” certain issues over “how she felt about more than one perceived incident”.
Background
In early 2022, Henry applied for a waiter job at new restaurant Tattu. She started working at the restaurant on 7 March before resigning on 8 April. The first two weeks of employment consisted of training, before the restaurant opened on 26 March.
Henry missed the first few days of training after a family emergency, but the tribunal heard she was able to catch up "at least to some extent” with what she had missed, and took her final test allowing her to work as a server on 18 March.
The restaurant manager, Mr Jan Kavka, noted that, while she was polite to customers, she was not proactive and had to be told what to do. Meanwhile, Andrew Carter, a trainer at the restaurant, said there had been an “error of judgement” in appointing her to the server role. He said it would have been more appropriate to position her in the more junior role of ‘runner’, where she would have been responsible for delivering food to tables but not taking orders.
The tribunal heard about a number of altercations between Henry and deputy general manager Joanna Huang between 26 March and 7 April 2022, during the ‘soft opening’ of the restaurant where friends and family were invited before the official opening.
On 26 March – her first shift – Henry claimed that Huang said she was not doing well enough and needed to check on her tables more often, and that she needed to get her act together, otherwise she did not see her making it as a waiter. During this period, Henry additionally claimed that Huang was picking on her, checking on her “every three minutes” and singling her out for poor behaviour.
Henry complained that Huang had on two occasions called her “Joyce”, which was the name of the only other Black employee. She recognised that people could get names wrong, but said that Huang had “smirked” at her after being corrected.
On a later shift, Henry claimed that Huang said she looked “tired and unpresentable” and that on her next shift she should wear make-up. This was corroborated by another employee at the firm, Naomi Johnson, who said that another manager had advised her to wear make-up on shifts.
Judge’s comments
Employment judge Glennie ruled that while Huang’s comments that Henry looked “tired and unpresentable” did not in themselves amount to sex-based harassment, the suggestion that she wear make-up to her next shift did.
Such comments, Glennie ruled, created a “humiliating environment” for Henry and amounted to saying she should “improve” her appearance with the use of make-up. The tribunal also found it was reasonable to expect the comment to “undermine” Henry’s self esteem.
However, her claims of harassment related to race were not well founded. The tribunal concluded that Huang “had been critical” of Henry, but noted “there was [not] any reason to find that the claimant’s race played any part in this. The facts showed only that Ms Huang criticised aspects of the claimant’s work.
“We have accepted that it reflected Ms Huang’s expectations about the standard of work required, rather than anything personal to the claimant.”
As Henry had only been employed at the firm for a short period, the tribunal accepted that it had “simply [been] a mistake” that Huang referred to her as Joyce, as Huang had a history of getting employees’ names wrong and that it was an “unintentional error”.
Huang was described as “very strict” and “very draconian”, but it was noted that this was her overall management style, and was not unique to Henry.
Lawyer's comments
Daniel Smith, legal and operations manager at Primed, told People Management that employment tribunals have “wide discretion” to exempt evidence. “It appears that in Henry v Tattu Manchester an application was made for the results of a polygraph test undertaken by the claimant to be admitted into evidence after the evidence had concluded.
“That would have been fundamental to the tribunal’s assessment of admissibility – because while the evidence may have been relevant to the dispute, admitting the polygraph test after evidence had concluded would likely have caused an irreconcilable prejudice to the respondent. They would not have had a chance to ‘test’ that evidence.”
However, Smith said that even if we were to assume that an earlier application had been made, it was unlikely that the tribunal would have allowed the polygraph test results into evidence. “The tribunal pointed out that all the polygraph test achieved was to positively demonstrate that the claimant honestly believed what she was saying,” he said.
“The job of the tribunal is to determine what in fact happened – which is a fundamentally different question to what a claimant honestly believes happened.”
Such equipment is ultimately too untested to be reliable evidence in a tribunal, Smith continued: “There are, simply, too many unanswered questions about this kind of evidence: who administered the test? Was it a reputable company? Were the questions asked, and therefore the responses given, appropriate and reasonable? What is the science behind the test? What techniques were involved in the administration of the test? Was the environment appropriately controlled? Ultimately, how reliable is it?
“To allow polygraph tests into evidence would be the beginning of a slippery slope for employment tribunals.”