Hunter v Lidl Great Britain Ltd is an example where comments in the workplace were argued to be ‘workplace banter’ and related to ‘culture’ but determined by the Employment Tribunal to amount to sexual harassment. 

Background 

Miss Hunter was employed by Lidl as a Customer Assistant in February 2019, and was thereafter promoted to Shift Manager in August 2020. During her employment with Lidl, she was subjected to numerous unwanted comments of a sexual nature as well as unwanted advances. Despite Miss Hunter’s numerous complaints about these comments, Miss Hunter continued to be harassed and was told that she should ‘take it as a compliment’.  

She resigned and issued several claims including sexual harassment and unfair dismissal.  

Decision 

In its decision, the Tribunal determined that Miss Hunter had been sexually harassed based on the conduct which had taken place in the course of her employment. Further, the Tribunal went on to say that whilst the comments did not intend to cause offence, this reflected on the culture of the store where this behaviour was allowed to go unchallenged.  

Evidence also showed that management did not appear to appreciate how the comments would be perceived or that they would or could cause offence. 

Lidl’s representative did not make any submissions to the Tribunal on the statutory defence to vicarious liability which would seek to minimise Lidl’s exposure. Miss Hunter was awarded £50,884.62 which included £22,000 for injury to her feelings. 

Vicarious Liability  

As employers, there is a statutory defence to vicarious liability under the Equality Act 2010, if, as an employer you can show that you took all reasonable steps to prevent the employee from doing the alleged act of discrimination or from doing anything of that description.  

The Tribunal when considering whether an employer is vicariously liable for the actions of its employee/s, will consider whether there were any further steps that could have been taken that were reasonable to take. They will also take into consideration whether that step or steps would be proportionate to the result which would have likely been achieved.  

Reasonable steps will largely be dependent on the facts and circumstances, however guidance within the EHRC: Code of Practice on Employment states that reasonable steps might include: 

• implementing an equality policy; 
• ensuring workers are aware of the policy; 
• providing equal opportunities training; 
• reviewing the equality policy as appropriate; and 
• dealing effectively with employee complaints.  

In Hunter v Lidl Great Britain Ltd, there was no evidence that relevant training took place, nor did Lidl comply with its own anti-harassment policy. The Tribunal went further and stated that the management who gave evidence showed a lack of familiarity with Lidl’s policies. This identifies the importance of making sure as employers that your policies are up to date, as well as ensuring employees are aware of those policies. 

The recent Employment Appeal Tribunal case of De Bank Haycocks v ADP RPO UK Ltd highlights the importance of employers engaging in meaningful consultation with employees placed at risk of redundancy. 

This case concerned a recruitment consultant employee (DBH) who was placed in a pool with his 15 recruitment consultant colleagues for redundancy following a downturn in work caused by the COVD 19 global pandemic. Alongside his colleagues, in early June, DBH scored by his manager against subjective redundancy selection criteria. DBH scored the lowest.  

After the redundancy scoring exercise, on 18 June, DBH’s employer, ADP Ltd, decided that there would be 2 recruitment consultants made redundant. DBH was invited to a meeting on 30 June, where he was told of the redundancy situation, invited to ask any questions he may have and make suggestions as to alternative approaches to the redundancy situation. DBH was then invited to attend a second meeting on 8 July and a final meeting thereafter on 14 July. At the meeting on 14 July, he was advised of his dismissal by reason of redundancy. 

DBH appealed the decision to dismiss him. In the course of the appeal process, DBH was provided with his redundancy scoring, and the scoring of his 15 colleagues, but had not been provided with this information at the time of his redundancy consultation meetings in June and July.  

ADP Ltd dismissed his appeal, and DBH brought a claim in the Employment Tribunal for unfair dismissal. 

The Employment Tribunal originally found that DBH had not been dismissed unfairly and therefore rejected his claim. However, when DBH appealed this decision in the Employment Appeal Tribunal, the Employment Appeal Tribunal found that DBH’s dismissal was unfair. In reaching this decision, the Employment Appeal Tribunal found that consultation with DBH ought to have taken place at the formative stage of any decision on redundancy selection processes i.e. in early June, and that ADP Ltd could not provide any good reason for consultation not to take place at that stage of the redundancy process. The Employment Tribunal concluded that this meant that the employees affected, including DBH, were denied the opportunity to suggest ways in which redundancies could be avoided, and that there was never any opportunity to discuss the prospects of a different approach to any aspect of the redundancy process chosen by ADP Ltd. 

This case therefore serves as a stark reminder to all employers that carrying out a fair process when making redundancies is of significant importance, and in particular, employers must ensure that they engage in meaningful consultation with affected employees whist keeping an open mind as to representation made by employees during consultation. This case also demonstrates that the timing of consulting with employees is key, particularly given that the Employment Appeal Tribunal found in this case that a major part of the redundancy process in identifying redundancy selection criteria and carrying out the scoring exercise had all been completed before DBH was first consulted as to his role being placed at risk of redundancy.