No Uplift if Grievance Not in Writing
An employer who failed to investigate an employee’s sexual harassment allegations could not be ordered to pay increased compensation as a result of a failure to comply with the Acas Code on grievance procedures. An uplift can only be awarded if the grievance has been raised in writing.
In Cadogan Hotel Partners Ltd v Ozog, O was a waitress at a hotel. She complained that T, a new head waiter at the hotel, kissed her arm and touched her inappropriately. He also undid a trouser button and took off his belt in front of her and another female colleague and made suggestive comments. She complained to her supervisor who reported it to O’s manager who took no action. Shortly after, O was suspended in relation to a dispute over her performance and complained again about T’s behaviour. After being sent home she resigned with immediate effect by email sent that afternoon.
O claimed sex discrimination. The employment tribunal found that the kissing and touching incident was a mild form of sexual harassment which made O feel “uncomfortable”. The belt incident was direct sex discrimination and harassment which made her feel “very uncomfortable”. It awarded her £10,000 for injury to feelings. It also awarded a 25% uplift in respect of the employer’s failure to follow the Acas Code.
The employer appealed. The EAT ruled that the tribunal should not have awarded an uplift in respect of the employer’s failure to follow the Acas Code on grievance procedures. The Acas Code requires a grievance to be raised in writing. As the grievance had not been raised in writing the Code did not apply and no uplift could be awarded.
The EAT went on to decide that the discriminatory conduct fell into the lower Vento band. Awards for injury to feelings should be compensatory and not used to punish employers. As the tribunal had found that the acts of discrimination had only made her feel “uncomfortable” and “very uncomfortable” and had accepted O’s evidence that she was not particularly traumatised , an award in the middle band was not justified. The hotel conceded it would be appropriate for an award at the higher end of the lower band and the EAT awarded £6,000.
Employers will be relieved at the EAT ruling which makes it clear that an employer’s obligation to comply with the Acas Code on grievance procedures only applies where a grievance has been raised in writing. Although the Code states that an employee “should” raise the grievance in writing, suggesting that perhaps this is not compulsory, the EAT took a sensible approach, observing that employers need to understand that a grievance has been raised. To require the Code to be followed where a grievance has only been raised orally can potentially lead to confusion, although on the facts of this case there can be little doubt that the employer appreciated that a grievance had been raised.
Employees should ensure that they raise grievances in writing in order to ensure that the Code is engaged. This will also reduce the risk of their compensation being reduced as a result of their own failure to comply with the Code, something which the employer does not appear to have argued in this case.
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