Mr S Nunns v SBH Windermere Limited and 1 other — 2023

The claimant was employed by SBH Windermere Limited as head chef from 23 October 2021 and resigned with effect from 22 July 2022. He alleged sexual harassment by Mr A Wilson, the hotel general manager, and a separate claim for unauthorised deductions from wages after he received statutory sick pay only while absent in late March 2022. The tribunal heard evidence from 31 May to 2 June 2023 and found that, on disputed issues, most allegations came down to the claimant's word against the second respondent's. Where there was a dispute, it preferred the claimant's evidence and held that the first and second respondents were liable for unlawful harassment of a sexual nature under section 26 Equality Act 2010, with the first respondent vicariously liable for Mr Wilson's conduct.

The tribunal accepted that not every allegation succeeded. It found that some earlier conduct, including certain hugs and knee touches before 3 November 2021, was not unwanted at the time and did not have the required effect. It also dismissed the allegation concerning comments about a diner because, although serious, the tribunal did not have evidence that those comments had the required effect on the claimant personally. By contrast, it upheld later conduct as part of a course of conduct ending in late March 2022, including the bottom-touching incidents, the nipple caress, the singing of 'The Ballad of Barry & Freda It' with eye contact and gestures, shoulder and back massage, and the late-March hug, forehead kiss and 'love you' comment. The tribunal found the harassment claim was presented in time because the conduct formed a continuing course of conduct ending with the final upheld incident.

The wages claim failed. The tribunal found that, while the claimant's payslips were confusing and opaque, the evidence showed that he was paid statutory sick pay while he was absent and certified unfit for work, and that he was not contractually entitled to full pay during that period. The tribunal therefore rejected the claim under sections 13 and 23 Employment Rights Act 1996. Remedy for the harassment claim was not assessed in this judgment and was left to a further hearing. The tribunal also refused the respondents' application to continue anonymisation and restricted reporting, so the judgment was issued with the parties named.