In the case of KZ v The Nags Head Reading Limited a bartender’s claim of harassment related to sex was upheld in relation to the allegation that the employer, a small, family-run pub (TNH), “failed to prevent any recurrence” of sexual harassment by a contractor/customer of the pub (the Third Party) and failed to protect them from such behaviour.

The Third Party was a customer in the pub at the time but had been working prior to that date and subsequent to it as a contractor. The first incident took place in January 2020 when the Third Party grabbed hold of the claimant by placing his hands between their legs.

Subsequently, the Third Party continued to intimidate the claimant: he followed them into the kitchen on several occasions and made comments to them under his breath; he continually stared at the claimant whilst they were working; and every couple of weeks would deliberately push past them in order to make physical contact with them.

Lastly, in June 2020, the claimant was using the ladies’ toilet. The lock on the toilet had been removed for repair at the time. The claimant alleges that whilst they were using the toilet on the ground floor of the public house, the Third Party was looking through the lock. He subsequently made a comment to the claimant when they left the toilet about the drains being blocked.

The tribunal found that the third party’s actions here were “not innocent” and were inappropriate, as he failed to check if anyone was occupying the ladies’ toilets and did not alert anyone of his presence in the toilets.

TNH initially denied the occurrence of these events, but later accepted they had occurred. Additionally, KZ argued that the director, Samuel ‘Jody’ Oates “disbelieved” them, especially in a text message between KZ and JO where he said “are you absolutely 100 per cent that the offence was definitely made by [the third party]”, and asked if there was a “possibility it was someone else”.

JO also told KZ that the third party was a “giant toddler” and told KZ they shouldn’t take his actions the wrong way.

The tribunal found that JO “trivialised” the incident and could not accept that it “merited the label” of sexual harassment. It also detailed several occasions where both KZ and CM told JO about the incidents and he took no action.

Employment judge Shastri-Hurst found that JO’s comments about the third party being a “giant toddler” was not an “appropriate response to the gravity of the allegation” and that his statements “trivialised” the incidents.

“It was reasonable for [KZ] to feel that an intimidating, hostile, degrading, humiliating or offensive environment was created by this failure to prevent any recurrence of sexual harassment,” said Shastri-Hurst, who added the failure to act on the groping incident “permitted” the toilet incident to occur.

The tribunal also upheld KZ’s claim of victimisation, which came from the “tetchy” interactions with JO who now saw KZ as “problematic” after making complaints and causing “problems and hassle”.

Shastri-Hurst said: “We are satisfied that [KZ’s] protected acts were a significant influence” in how JO treated her.