There is an implied term of a duty of mutual trust and confidence that has been breached in this situation. Sexual harassment is not specifically provided for in the Sex Discrimination Act (SDA) 1975 but there have, however, been cases where the Employment Appeal Tribunal has used the act to show a breakdown of mutual trust and confidence. Reed and Bull v Steadman  for example outlines a case where a managers bullying behaviour towards a secretary amounted to sexual harassment in breach of section 6(2) SDA 1975.
The employee was held to have been forced to leave her employment as a result of this breach and was entitled to claim for constructive dismissal resulting from discrimination. The EAT considered that sexual harassment was 'shorthand for describing a type of detriment'. With this in mind it is clear that with our case the housekeeper is clearly suffering a detriment within her employment and this detriment is on the grounds of sex.
"The provisions on direct discrimination are mirrored in the Race Relations Act 1976, so that interpretations of provisions in one Act, by the courts, can lead to the same interpretation being applied to the other Act. " (Employment Law, Malcolm Sargeant – see bibliography). This is an important point to note because section 32(1) RRA 1976 states that 'anything done by a person in the course of his employment shall be treated for the purposes of this Act… as done by the employer as well as him, whether or not it was done with the employer's knowledge or approval.
' In regard to the issue of the incident which occurred 'outside working hours and away from the workplace' it is important to highlight that social events specifically related to employment at a business – that is of you did not work there you would not be attending the event – are regarded as an extension of the workplace and indeed working hours. Any situations that arise during one of these events should be treated the same as if they had occurred at the workplace, during working hours.
As the employer, we will be vicariously liable for the actions of the head chef whether or not they were committed with our knowledge or approval. Subsequent Advice There should be an immediate investigation into the circumstances and facts of this case and disciplinary action should be taken against the head chef. We need to be aware that the housekeeper has strong grounds to leave her employment and claim constructive dismissal on the basis of sex discrimination; if successful with this line she would be entitled to compensation without a limit as to how much she could be awarded.
Relevant Legislation, Rights and Duties: o Disability Discrimination Act 1995 The legal position The Disability Discrimination Act (DDA) 1995 applies to persons with physical and/or mental impairment which has a substantial adverse long-term effect on his/her ability to carry out normal day-to-day activities. Specifically in relation to this case the case of O'Neill v Symm & Co Ltd  ruled that ME (myalgic encephalomyelitis) is recognised for the purposes of the DDA 1995.
To avoid discrimination the employer is required to make reasonable adjustments to allow the employee to continue working without suffering a substantial disadvantage. Subsequent Advice The solution here is not clearly defined, it can be difficult to decide exactly what adjustments are 'reasonable' but I feel there are some important considerations to make when deliberating this: Firstly we should take into account the length of the employee's service to the business. She has been working for us for 8 years now and this should not go unnoticed
Secondly and perhaps most important of all we have already recognised that she has been responsible for building the reputation of the business and in doing so has often worked long and unsociable hours I believe that it would be unreasonable for us as her employer not to acknowledge that this second point is likely to have contributed to the deterioration of her mental health as she has suggested. Further to this I am aware that we have rejected the solutions our employee has put forward so far but I am not aware that there has been any discussion with her to try and establish other possible options.
It is clear with the employee feeling compelled to resign that this situation is not going to continue as it is and as she has a strong case for disability discrimination it is important for us to act now to try and reach a solution amicable to both parties before this comes to fruition. If we are unable to do this then a successful claim of discrimination by the employee would result in her being awarded compensation without any limit as to the amount.