Employment Law Case Update: Phillips v Pontcanna Pub Company Ltd

Miss Phillips was employed by Pontcanna at the Cameo Club, from September 2015 to May 2018. On 1 January 2018, at the annual staff Christmas party, Miss Phillips and Mr Webb, a chef at Pontcanna, were involved in an incident which was recorded by CCTV. The CCTV clip showed Miss Phillips going to stand next to Mr Webb, who put his right arm around her in a headlock. Miss Phillips did not struggle and this looked playful, until there was what the ET later described as “a noticeable squeeze whilst she is in the headlock and then passes out and falls to the ground.”

Miss Phillips went to hospital where she had a CT scan which came back clear, despite Miss Phillips having no recollection of what happened. But the next day her mouth was sloping to one side and she was diagnosed with Bell’s Palsy (a condition causing temporary paralysis of the muscles in the face).

On 6 January 2018, Miss Phillips met with a director, Mr Pearce, and informed him of what Mr Webb had done to her. Mr Pearce stated under cross-examination that Miss Phillips had described the incident as a joke. Miss Phillips stated that whilst she was speaking with Mr Pearce, Mr Webb walked past and Mr Pearce said “hear you’ve been choking girls lately”. Mr Pearce offered to investigate the incident, but Miss Phillips said she did not want anything done. During cross-examination, Mr Pearce accepted he should have viewed the CCTV evidence at the time, but didn’t regard the incident as serious because it was not explained to him in a serious way. Mr Pearce said he didn’t see CCTV evidence until May 2018, four months later.

Mr Pearce relayed his conversation with Miss Phillips to Mr Davies, another director. Mr Davies then asked if she would like to take any action; again she requested no further action be taken. In March 2018, Miss Phillips learned, at a further medical appointment regarding her facial paralysis that full recovery could take up to 18 months. Miss Phillips asked to meet with Mr Davies and stated that she wanted to make a personal injury claim against Mr Webb. Miss Phillips then reported the incident to the police, not to press charges, but to get a crime number to pursue a criminal injuries compensation claim.

By the end of March 2018, Miss Phillips began to under-perform and adjustments were made to her rota so she did not work at the same time as Mr Webb. In April 2018, Miss Phillips told Mr Davies she was so uncomfortable and scared of going to work that if nothing was done, she would consider getting another job. Mr Davies told her to “get over it” and Miss Phillips raised a grievance, dissatisfied with the how the matter was dealt with informally.

When the grievance was rejected, she handed in her notice. She felt her complaints about the assault had been dismissed out of hand, and she'd been given false promises.

The ET ruled that Pontcanna should have investigated the matter as a disciplinary issue and considered what action to take, rather than rely on Miss Phillips not wanting the matter to be investigated. Because the incident wasn’t investigated, the ET stated, the implied term of mutual trust and confidence no longer existed, meaning Miss Phillips was constructively unfairly dismissed.

It is essential that employers consider their moral obligations and duty to report such incidents, even when it goes against the employee’s wishes.

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ENDS

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