Case 4110200/2019 · Employment Tribunal
Ms C Penders v Represented by: Ms E Drysdale - Trainee Solicitor Garnock Social Trading Ltd and 1 other — 2020
- Case reference
- 4110200/2019
- Decision date
- 12 February 2020
- Jurisdiction
- Scotland
- Judge
- Employment Judge R Gall
- Venue
- Glasgow
Parties
3 namedClaimant
Ms C Penders
Key findings
Tribunal's reasoningMs C Penders was employed by Garnock Social Trading Ltd from 14 January 2017 until 22 June 2019 as a barmaid. The tribunal accepted her evidence as credible and found that from around July 2017 Brian Andrew, the managing director and second respondent, engaged in repeated unwanted touching, sexual comments, attempts to kiss her, phone calls, and visits to her home. She raised concerns with Peter Andrews in February 2018, but the response was limited to an apology and the conduct continued.
The tribunal held that the final incident on 21 June 2019, when Brian Andrew said she would have got the bar-convener job if she had slept with him and then tried to pull her face towards him for a "proper kiss", destroyed trust and confidence. Her resignation on 22 June 2019 therefore amounted to constructive unfair dismissal, and because it followed sex-related harassment, the dismissal was also discriminatory. The whistleblowing/detriment pleading was no longer insisted upon.
The tribunal also found harassment under section 26 Equality Act 2010. The conduct was unwanted, related to sex and of a sexual nature, and had the requisite effect on Ms Penders. Both respondents were liable, no section 109 defence was made out, and the conduct was treated as extending over a period so the earlier incidents were not time-barred. The victimisation claim failed because the post-complaint conduct was treated as a continuation of the harassment rather than action taken because of the protected act.
On remedy, the tribunal awarded a £400 basic award and £1,433.12 compensatory award for unfair dismissal after deduction of benefits, and separately recorded £1,854.83 for the discriminatory-dismissal head, including £21.71 interest. For harassment, it awarded £28,000 for injury to feelings, placing the case in the upper Vento band and applying the 10% Simmons uplift, plus £3,532.31 interest. It also awarded £350 for loss of statutory rights and £400 under section 38 of the Employment Act 2002 because no statement of employment particulars had been issued.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Constructive unfair dismissal upheld: the tribunal found a repudiatory breach of the implied duty of trust and confidence and held that the claimant resigned on 22 June 2019 after the 21 June incident. The order recorded a £400 basic award and a £1,433.12 compensatory award after deduction of benefits. | Upheld | — | £1,833 |
| Sex discrimination | The tribunal held that the constructive dismissal was discriminatory because it followed sex-related harassment by the second respondent. The order recorded a total of £1,854.83, including £21.71 interest on past loss. | Upheld | Sex | £1,855 |
| Harassment | Harassment was found under section 26 Equality Act 2010: the conduct was unwanted, related to sex and of a sexual nature, and had the requisite effect. The award was £28,000 plus £3,532.31 interest, and liability was joint and several against both respondents. | Upheld | Sex | £31,532 |
| Victimisation | The February 2018 complaint was accepted as a protected act, but the tribunal held that the later conduct was a continuation of the harassment rather than detriment because the complaint had been made. | Dismissed | — | — |
| Other | Section 38 Employment Act 2002 award for failure to issue a statement of employment particulars. The tribunal found no exceptional circumstances and awarded the minimum of two weeks' pay, £400. | Upheld | — | £400 |
Remedy
Monetary award- Total award
- £35,970
- across all upheld claims
- Basic award
- £400
- statutory, unfair dismissal
- Compensatory award
- £1,433
- compensatory remedy recorded
Legal tests applied
15 references- s.95(1)(c) ERA 1996
- implied duty of trust and confidence
- Western Excavating (ECC) Ltd v Sharp
- Malik & Mahmud v Bank of Credit and Commerce International SA
- s.26 Equality Act 2010
- s.27 Equality Act 2010
- s.109 Equality Act 2010
- conduct extending over a period
- just and equitable extension of time
- Vento bands
- Da'Bell v NSPCC
- Simmons v Castle
- London Borough of Hackney v Sivanandan
- Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996
- s.38 Employment Act 2002
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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