A bus driver who was told to pretend she was pregnant or married to avoid harassment from her male colleagues suffered discrimination and was unfairly dismissed, an employment tribunal has ruled.
London General Transport Services was found guilty of harassment, discrimination and constructive unfair dismissal, after a female employee lodged a grievance about multiple counts of sexual harassment from her majority-male team, only to be told by her union rep the culprits were “probably joking”, and that she should lie about her relationship status to avoid future incidents.
Claimant ‘Ms G’ joined London General Transport Services in late 2013 and was trained as a bus driver assigned to its Northumberland Park garage in north London. She worked in a pool of roughly 500 drivers, which was estimated to be around 90 per cent male – a ratio that had increased with the departure of the mostly female conductors when the role was phased out from buses operating in the capital.
In June 2016, Ms G made a series of complaints regarding sexual harassment from colleagues – having previously submitted two formal written complaints against other drivers who had made “a number of comments towards me of a sexual nature” in late 2014 and early 2015. It was noted by the tribunal that “in neither instance had she any formal outcome from the respondent”.
Between 14 and 16 June 2016, she alleged that a colleague, Mr F, had told her she had “a beautiful body” and later asked her to “tell me if you’re wet”. The allegations about his sexual language were upheld by Watford Employment Tribunal.
“We attach weight to the consistency and timing of the first iteration of these allegations, and to the elision from innocent usage of ‘wet’ to the use of innuendo,” Judge Lewis said, adding: “We find that each remark constituted unwanted conduct of a sexual nature that had the purpose or effect of violating the claimant’s dignity or creating an environment for her that was intimidating, hostile, degrading, humiliating or offensive.”
Ms G additionally alleged that on 17 June another colleague, Mr E, had used her e-cigarette as a reference to ask her “do you like putting things in your mouth?”, going on to add “you should know not to put things in your mouth”. This took place in a group of bus drivers, of whom she was the only woman and, in response to their laughter, Mr E said: “What did you think I meant?”
Mr E acknowledged the remarks conveyed a sexual innuendo both at the time and subsequently when giving evidence to the tribunal.
On 17 June, Ms G wrote a group email to all 500 drivers at Northumberland Park – something she had previously been warned against by the organisation’s operating manager, Mark Cambridge.
In the email, she said she did not wish to be the recipient of comments “that are of a blatant insulting sexual nature and/or those comments that have a sexual undertone to them”, quoted a number of the remarks made to her, and wrote: “Keep your hands AND thoughts to yourselves.”
In response, Cambridge emailed Ms G, saying: “Emails of this nature are completely unacceptable and I believe we have discussed this issue on a number of previous occasions,” adding that she must follow proper procedure if she was concerned about suffering sexual harassment. He warned that the email could lead to disciplinary action being taken against her.
Ms G was subsequently signed off work on sick leave, at which point Cambridge suspended her access to company email. Accident prevention manager Mr Field was then tasked with managing her issues, including her sickness absence and return to work, despite having little HR experience.
At a meeting to discuss her return to work on 23 June, Ms G presented Field with a written grievance detailing the incidents of harassment. She attended with Mr Affaine, one of three elected representatives for Unite working at Northumberland Park. Unbeknown to the two, Ms G was covertly recording the interview.
During the meeting, Affaine laughed at Ms G’s descriptions of her treatment, said the drivers who had spoken sexually to her were “joking”, and suggested she “deter prospective harassers by saying that she was pregnant or married”.
“We find as fact that during the meeting Mr Affaine laughed; that he expressed scepticism of the claimant’s allegations; and that he made the pregnant/married remark,” Judge Lewis said.
“He treated the claimant less favourably than he would have treated a hypothetical male complainant of harassment by trivialising and belittling her allegations; by expressing partiality in favour of the alleged perpetrators; and by advising her, as the apparent victim of harassment, to adopt tactics of avoidance and to lie while doing so as an alternative to addressing the underlying wrong of harassment.”
Despite this, in the course of his grievance investigation Field said he did not think Affaine was harassing Ms G, suggesting his turn of phrase had constituted playing the “devil’s advocate”. While the tribunal acknowledged that Field was “genuinely unsure” about his responsibility for the actions of a union representative, his failure to appropriately respond to Affaine’s behaviour “met the test of harassment”, and constituted discrimination.
“The companion was an employee of the employer but no steps were taken to remonstrate with him when he expressed unacceptable views,” Barry Stanton, head of employment law at Boyes Turner, told People Management.
“The tribunal found that the failure to uphold the claimant’s grievance was an act of discrimination.”
Ms G resigned from her post in September 2017, having never returned from her period of sick leave, and the tribunal upheld her claim of constructive unfair dismissal.
“Although the events to which this tribunal hearing relate took place in the period 2014 to 2016, the tribunal ruling was delivered at the height of the recent global focus on the #MeToo campaign,” Stanton said.
“This is yet another case that illustrates the problems that exist within businesses, the potential liability that can arise as a result of an inappropriate culture and the willingness of the tribunals to respond accordingly.”
At a remedy hearing on 13 March 2018, London General Transport Services was ordered to pay Ms G a total of £55,167.20, broken down into a financial award of multiple damages – including those for sex discrimination and unfair dismissal – of £23,612.89, and an award for injury to feelings for sex discrimination of £17,000.