Bar Worker who caught customer peeping through toilet door held to be victim of sexual harassment and victimisation

In the case of KZ v The Nags Head Reading Ltd, the Claimant, KZ, was employed as a bartender by the Respondent (TNH), a small family run pub having been a regular customer.

On 1 January 2020, a customer and contractor of TNH (known as the third party) brushed past KZ touching their bottom. This occurred twice within 10 minutes and the Claimant informed a colleague, believing that it was initially accidental. However, later that same night, an ‘unidentified’ person grabbed the Claimant between their legs from behind and the Claimant believed this to be the same third party as the previous two incidents based on their proximity.

A couple of days later, the Claimant was again in the presence of the third party at TNH when the third party grabbed them by the shoulders. The Claimant shouted, “get off me”. A director of the Respondent was present at the time and was informed, but no action was taken. The Claimant subsequently texted the director who did not take the allegations seriously nor believe that the third party was the perpetrator. The director also did not believe that the conduct amounted to sexual harassment.

Between January and June 2020, the third party further harassed the Claimant by catcalling, staring, muttering sexist insults, and standing in the Claimant’s way so that they would have to engage with him. Due to the Respondent’s inaction, the Claimant only told her colleagues, not the Respondent about these incidents. Later, due to on-going work at the pub, the locks to the female toilet were removed and the main door was left propped open. The Claimant used the toilet and noticed that the third party was watching them via the hole left by the missing lock. The Claimant therefore left the premises, and later reported the incident to the Respondent. However, during this meeting, the Respondent explained that the third party was a “giant toddler” and their behaviour should not be taken the “wrong way”. The Claimant stated that they wanted the harassment policy and training to be put in place yet only a limited investigation was undertaken with the third party who accepted that they may have accidentally bumped into the Claimant but denied the third incident on 1 January 2020.

As a result, the Claimant brought claims of sexual harassment and harassment based on sex. TNH had initially denied that these incidents had occurred but later accepted them. The Claimant argued that the Respondent should have had adequate measures in place to prevent any sexual harassment in the workplace.

The employment tribunal held that the Respondent had no understanding or awareness of its obligations towards employees and there were no adequate policies in place. The first incidents were however held not to be foreseeable, so the Respondent could not be aware of the risk of this. However, once the Respondent became aware, action should have been taken. The investigation did not take place until sometime after the initial report and no policies or training that could have prevented any future incidents were implemented until the Claimant expressly requested these, despite what had happened.

The employment tribunal further held that the director had trivialised the incidents on several occasions and could not accept that it would amount to sexual harassment. There were also several incidents where KZ and other staff reported the incidents, but no action was taken. Hence, it was reasonable for KZ to feel that an intimidating, hostile, degrading, humiliating, or offensive environment was created by the failure to prevent any recurrence of sexual harassment. Further, the failure to act on the (third) groping incident allowed the later toilet incident to occur. Allegations of victimisation were also upheld.

Readers may have seen our article in March 2023 outlining that the law on sexual harassment in the workplace is soon to be changed. The Worker Protection (Amendment of Equality Act 2010) Bill is currently progressing through Parliament and will introduce a new duty for employers to take all reasonable steps to prevent sexual harassment. However, this case is a useful reminder that employers currently have a duty to act in the workplace once they are aware/on notice that there is an issue. These matters should always be taken seriously and investigated thoroughly.

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