Asking a female employee why she wants to work can amount to sex harassment: Lessons from A Pereira v Wellington Antiques and Another

In the recent case of A Pereira v Wellington Antiques and Another, the Employment Tribunal looked at the issue of whether an employer asking a female member of staff questions about why she wanted to work, why she needed to earn money, and about her husband, could amount to sex harassment; and found that it did. The Tribunal also found that the employer had failed to pay the Claimant wages, commission, sick pay, holiday pay, pension contributions and notice pay, because he mistakenly believed that she was not entitled to the full spectrum of employment rights as a probationer and part-time worker; and had victimised her by putting her on garden leave because she had raised complaints about discrimination. The employer was ordered to pay over £60,000 in compensation, including £18,400 for injury to feelings.   

We take a closer look at the case below, and also set out a summary of the key points for employers to bear in mind.

The background facts in Pereira v Wellington Antiques

Ms Pereira was employed by Wellington Antiques as a part-time retail assistant, from around October 2021. Terms relating to her pay, pension and commission were agreed verbally, with her boss, Mr Wellington; who assured her that it would “all be done properly” and that she would be paid via PAYE, given holiday entitlement and enrolled in a pension scheme. 

Mr Wellington also ran a separate jewellery business, and colleagues in that business who worked full-time were paid via PAYE, given holiday entitlement, enrolled in a pension scheme, and had contracts of employment.

In around November 2021, Mr Wellington had a conversation with Ms Pereira, in which he asked her why she wanted to work, why she needed to earn money, and asked her about her husband. Ms Pereira found this conversation uncomfortable.

In the months that followed, though Ms Pereira worked well in her role, she was frequently paid late, not enough, not at all, and/or in cash only. She was not given a contract of employment, or payslips.  She raised a number of complaints with Mr Wellington about this, and he responded with various excuses, including alleged delays on HMRC’s part, assertions that his accountant would make the requisite arrangements, and/or claims that Ms Pereira had already been paid in full. 

In February 2022, Ms Pereira was off work sick for around a week. She was not paid for that period.

In March 2022, when Ms Pereira questioned Mr Wellington further about being given an itemised pay slip, PAYE, National Insurance and pension contributions, he replied that it was being dealt with by HMRC and said that she had “no right to a contract until he deemed ready”; his view was that Ms Pereira was not entitled to a contract until she was no longer in her probationary period (which he said had been extended). Over the following months, Ms Pereira did receive some payments, but there continued to be a shortfall, and she was not paid via PAYE, given any payslips, enrolled in a pension scheme, or given a written contract of employment.

In June 2022, Mr Wellington agreed verbally with Ms Pereira that, if she managed to achieve £12,000 in sales within two months, she would be paid a £2,000 bonus. Ms Pereira subsequently achieved her sales target a few weeks later, but when she asked Mr Wellington to pay her the £2,000 commission she was owed, he refused – claiming that there had been no such agreement. In July 2022, Ms Pereira confronted Mr Wellington about the commission she was owed, and he once again denied that there was any such money owed. The discussion escalated, Mr Wellington shouted at Ms Pereira, who became upset and left the premises.

Over the following months, Ms Pereira continued to seek payment of outstanding wages and commission, unsuccessfully. In November 2022, she sent a message to Mr Wellington, raising a grievance about her unpaid wages, the fact that she was not being paid through PAYE, and the fact that she was not being paid pension contributions. She was signed off sick by her GP. No further action was taken by Mr Wellington in relation to the grievance.

In December 2022, Ms Pereira’s solicitor sent a letter to Mr Wellington, stating that she was owed various amounts, including wages and commission, and raising allegations of sex discrimination. Mr Wellington’s solicitor replied in January 2023, stating that Mr Wellington was “grossly offended” by the allegation of discrimination, and suggesting that Ms Pereira go on garden leave, which she subsequently agreed to do. However, agreement could not be reached as to the duration of the garden leave.

In February 2023, Ms Pereira sent Mr Wellington a grievance. Mr Wellington failed to deal with the grievance altogether, and subsequently said that he found it extraordinary that Ms Pereira considered there was any scope for the continuation of her employment, as it was clear the relationship had irretrievably broken down. He indicated that he felt that Ms Pereira could no longer work for him from the moment he became aware that she was accusing him of discrimination, and that he was particularly upset about the allegation that he had been sexist, which he categorically denied.

In March 2023, Ms Pereira treated herself as being constructively dismissed. She subsequently brought a number of claims in the Employment Tribunal.

The Employment Tribunal’s decision

The Tribunal upheld Ms Pereira’s claims for:

1. sex harassment,
2. failure to provide a written statement of particulars of employment,
3. unauthorised deductions from wages, holiday pay, sick pay, commission and employer pension contributions,
4. wrongful dismissal and notice pay, and
5. victimisation.

In relation to the sex harassment claim, the Tribunal found that Mr Wellington’s conduct, in asking Ms Pereira why she wanted to work, why she needed to earn money, and about her husband, amounted to unwanted conduct, in that the questions were intrusive and inappropriate. They were also related to sex, in that they were motivated by Ms Pereira’s sex. It was unlikely that Mr Wellington would have asked a man working in the antique shop the same questions. The Tribunal commented that “the questions were inappropriate, because they were based on an outdated idea that men are the main breadwinners in a house”. In asking these questions, Mr Wellington had created a degrading environment for Ms Pereira, and had violated her dignity, in that she felt she had to justify her need and desire to work and felt she had to explain her financial situation, when that was a personal matter.  The Tribunal found it was reasonable for Ms Pereira to have felt this way, given the inherently sexist nature of the questions. Ms Pereira’s sex harassment claim was therefore upheld.

In relation to the pension contributions claim, the Tribunal acknowledged that Mr Wellington’s evidence was that he mistakenly believed that, as a probationer and part-time worker, Ms Pereira was not entitled to be enrolled into a pension. However, it stated that “the fact that the [Respondent] viewed the Claimant as a probationer, and the fact she was part-time, do not explain why she was not enrolled in a pension. Employers are not relieved of their obligations, in terms of enrolling their staff in pensions, when employees are in a probationary period, and they are not lawfully permitted to only offer a pension to full time staff but not part time staff”. Ms Pereira was awarded compensation for pension contributions. 

The Tribunal commented that Mr Wellington had a different attitude towards Ms Pereira than other staff members because he viewed her as a probationer and because she worked part-time. He was of the view that the issue of whether she should be given a contract of employment, enrolled in a pension scheme, paid at regular intervals via PAYE, and given payslips were things that he would consider after she had finished her probationary period. He mistakenly believed that, as a part-time worker and probationer, she did not have all the same legal entitlements as a full-time employee. The Tribunal commented that Mr Wellington did not have a good grasp on the legal requirements of being an employer, but that this did not justify his approach. However, Ms Pereira failed in her claim for less favourable treatment as a part-time worker, due to the way in which she had framed her comparators in this claim (i.e. she had compared her treatment against colleagues in Mr Wellington’s other business, who had a different legal employer and were therefore not apt comparators). The Tribunal commented that, had valid comparators been identified, they would likely have found in Ms Pereira’s favour on this issue.

Lastly, the Tribunal also found that Mr Wellington had victimised Ms Pereira, by asking her to go on garden leave after she had raised complaints of discrimination against him, and then not reinstating her into her role.

Mr Wellington was ordered to pay £4,632.16 in wages, sick pay and holiday pay owed. He was also ordered to pay the following in compensation:

Key considerations for employers

The Pereira case is a salutary warning about the legal risks that can arise for employers who do not have a handle on employment rights, obligations, and best practice. We have set out below some key take-away points that should be borne in mind:

• Avoid asking staff personal questions about their marital status and family life, and/or stereotyping or making assumptions about their personal circumstances. These types of questions/statements are highly likely to relate to protected characteristics (such as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation), and run the risk of being discriminatory or harassing, particularly if they are unwanted and have the effect of creating a degrading or hostile environment or violating dignity (the latter being the case in Pereira).

• Make sure you give employees written contracts of employment, which are compliant with Section 1 of the Employment Rights Act 1996, from the start of their employment.  A failure to do so can result in an employee becoming entitled to compensation. In the Pereira case, the Claimant was awarded £840 in compensation for her employer’s failure to give her written particulars of employment. Having written terms also helps to avoid future disputes about the terms on which someone is employed – for example, what benefits they are entitled to.

• Employees who are in their probationary periods, and/or who work part-time, are entitled to equivalent statutory employment rights as those who are not in their probationary period, and/or work full-time (subject to any specific length of service requirements and pro-rata arrangements). In Pereira, the employer was under the mistaken belief that employees who were in their probationary periods and/or who worked part-time were not entitled to equivalent employment rights to colleagues who were not in their probationary periods and/or worked full-time. The Employment Tribunal commented that “Employers are not relieved of their obligations…when employees are in a probationary period, and they are not lawfully permitted to only offer a pension to full time staff but not part time staff”.

• Do not ignore grievances, even if you consider them to be unfounded. A failure to deal with a grievance fairly and in accordance with the ACAS Code (or at all, as was the case in Pereira), can result in an uplift of up to 25% in any subsequent compensation for unfair dismissal or discrimination awarded by an Employment Tribunal. In addition, if that grievance contains allegations relating to breaches of the Equality Act, any failure to deal with the grievance fairly, and/or any detrimental treatment (e.g., dismissal, as was the case in Pereira), which arise as a consequence of these allegations having been raised, can give rise to a victimisation claim.

If your organisation needs further advice on any of the issues outlined in this article, please get in touch and our team of experienced Employment Lawyers would be happy to help.