Ms Buica v GXO Supply Chain UK Ltd and Mr M Kang: 1307987/2023

EMPLOYMENT TRIBUNALS

Case No 1307987/2023

Venue Midlands West

Hearing 14 – 21 March 2025 (in chambers 20 -21 March)

Between

Ms BuicaClaimant

GXO Supply Chain UK Ltd and Mr M KangRespondent

Before

Employment Judge Harding

In person for claimant

Ms Urquhart (instructed by Counsel) for respondent

Date 11 April 2025

JUDGMENT

[1]The claimant’s claims of harassment related to sex/harassment of a sexual nature fail and are dismissed.

[2]The claimant’s claims of victimisation fail and are dismissed. Case Summary

[1]The claimant had presented a total of five claims to the employment tribunal which were consolidated and heard together at this hearing. The claimant was employed by the respondent as a warehouse operative. Her employment was continuing at the time these claims were submitted, although she has recently been dismissed, we understand. The claimant pursues claims of harassment related to sex/harassment of a sexual nature and victimisation. The alleged perpetrator in relation to the claims of harassment is the claimant’s manager, Mr Major Kang, with whom the claimant had a relationship for approximately four years, which ended in 2022. The claims of harassment all postdate the ending of this relationship. It is the respondents position that it is the claimant who has been harassing Mr Kang, culminating in Mr Kang applying (unsuccessfully) on two occasions for non-molestation orders against the claimant. The harassment claims are pursued against both R1 and R2. For the purposes of the victimisation claim the claimant asserts that she made six protected acts between 22 May 2023 and 20 May 2024, in the form of grievances raised with her employer. It is the claimant’s case that because of (some) of those grievances R1 moved her from D shift to B shift and that three further detriments than followed.

[2]Shortly before this hearing was due to start the respondent had written to the tribunal suggesting that, given the nature of the allegations made against individuals who were not parties or witnesses to the claim, the tribunal “might like to consider” anonymising the names of those individuals. In response the claimant also wrote to the tribunal saying that as she was mentioning colleagues names in relation to allegations of a sexual nature, to avoid defamation she would ask for what she termed a rule 50 order. Neither party pursued these applications before us. List of Issues/Claims

[3]A list of claims/issues had been drawn up with the claimant at two earlier case management hearings. However, it had not been discussed with the claimant at these earlier case management hearings whether these claims were pursued as claims under section 26(1) or section 26

(2) of the EQA. Looking at the nature of the claims it seemed to us that the correct legal label for these claims would be that they were claims under either section 26(1), in the alternative claims under section 26(2), and we indicated to the parties that we intended to proceed on this basis. There was no objection from either party to this. Harassment related to sex/harassment of a sexual nature;

[4]The asserted acts of unwanted conduct are:4.1 On 8 January 2023 Mr Kang gave the claimant the middle finger.

4.2 On the following dates Mr Kang made masturbatory gestures to the claimant;

(a) 15 January 2023,

(b) 1 February 2023,

(d) 4 March 2023,

(e) 5 March 2023,

(f) 23 April 2023,

(g) 24 May 2023,

(h) 31 May 2023,

(i) 23 June 2023,

(j) 26 June 2023,

(k) 9 July 2023,

(l) 25 July 2023,

(m) 18 August 2023,

(n) 19 August 2023.

4.3 On 31 January 2023 Mr Kang made masturbatory gestures towards the claimant whilst watching a pornographic movie on his phone,

4.4 On 21 March 2023 Mr Kang filmed the claimant on his phone,

4.5 On 8 May 2023 Mr Kang filmed the claimant on his phone,

4.6 On 23 May 2023 Mr Kang made masturbatory gestures towards the claimant using a drill.

4.7 On 2 February 2024 Mr Kang applied for a non-molestation order against the claimant.

4.8 There is significant factual dispute between the parties as to whether these incidents occurred. That said, it is accepted by the respondents that Mr Kang filmed the claimant on a number of occasions (although not on the dates she asserts) and accepted that he applied for a non-molestation order.

4.9 Subject to the points set out below, if we resolve the factual disputes in the claimant’s favour the respondents accept that this conduct was unwanted, was done with the purpose or effect of creating the proscribed environment and was related to sex/ was of a sexual nature. This concession is not made in respect of the two alleged incidents of filming the claimant on 21 March 2023 and 8 May 2023.

4.10 The respondents do not accept that applying for a non-molestation order was an act done in the course of employment, nor does it accept that this was conduct of a sexual nature and/ or related to sex.

4.11 These claims are pursued against both R1 and R2.

[5]It is the claimant’s case the grievances raised on: 22 May 2023, 26 May 2023, 14 June 2023, 16 June 2023, 17 June 2023, 15 April 2024, and 20 May 2024, amounted to protected acts.

[6]The alleged detriments are:6.1 On 21 July 2023 the claimant was transferred from D shift to B shift,

6.2 In April 2024 the respondent failed to provide the claimant with a comprehensive DSAR response, which was missing multiple documents.

6.3 On 23 May 2024 the respondent failed to provide an independent translator for the claimant at a meeting.

6.4 Mr Mark Simmons prevented the claimant from communicating with D shift employees.

6.5 R1 accepts that the grievance of 22 May was a protected act, and that the claimant then added further pages to that existing grievance on 26 May, meaning that too is accepted to be a protected act. It does not accept the other grievances were protected acts.

6.6 There is a dispute between the parties for the purpose of these claims as to the reason why the asserted detriments happened.

6.7 These claims are pursued against R1 alone. Time Limits

[7]It is said by the respondents that the harassment claims against R1 are all out of time bar the incidents set out at 4.2(k) – (n) above, and that only the detriments set out at 6.1 and 6.3 are in time for the purposes of the victimisation claim. As against R2 it is said that all the harassment claims are out of time. Evidence and Documents

[8]It was evident from the correspondence on the tribunal file that the parties had experienced considerable difficulties agreeing a bundle of documents for use at the final hearing, although it was also apparent from the correspondence that the respondent believed that an agreed bundle had, eventually, been arrived at. On the second day of this hearing the claimant handed in a large amount of additional documentation. The documentation given to the tribunal was in the form of six small bundles of papers, each clipped together with a paperclip. There was no index or pagination for any of this documentation. It rapidly became apparent during discussions that the paperwork that had been handed up to the tribunal was not the same for each member of the tribunal and that the paperwork handed to the respondent was different again.

[9]We sought clarification from the claimant as to whether any of this documentation was already contained within the bundle. She initially told us it was all within the bundle, then told us that some of it was in the bundle and some of it was new and then told us that it was all new. It was not clear to us whether any of the additional documentation had ever been disclosed to the respondent. It would likely have taken us a few hours to try to assist the claimant to put this documentation into a proper order, make sure that the tribunal, the respondent and the claimant all had the same documentation and then identify what was new disclosure and what was not. Consequently, we suggested, as a pragmatic way forward, that if the claimant felt there was a particular document of relevance to her claim contained within this additional paperwork then she could refer to it during the course of the hearing and at that point we would deal with any objections from the respondent, if any were made, to that document being introduced. Both parties were content to adopt this as a course of action. On day three of the hearing the claimant produced during evidence a further two small sets of documents from her bag. The claimant made reference to three of her additional mini bundles, without objection from the respondent, during evidence and cross examination. The only objection from the respondent related to the claimant seeking to introduce, on day three of the hearing, a copy of a formal grievance that she had made on 19 February 2024. However, after discussion with the parties they agreed that this was a document that was not relevant to the issues we had to decide. Accordingly, we took the view that this document did not need to be before us.

[10]We explained to the parties that only those documents which we were referred to, or asked to read, would be considered to be in evidence before us.

[11]We had a witness statement from the claimant and her witness Mr Eric Boayke. From the respondent we had witness statements for Mr Kang, Team Leader, Mr Munday, Site Manager and Ms De Vries, Regional HR Manager. Findings of Fact

[12]The majority of our findings of fact are set out in the section below. However, some findings, particularly when they form the basis of our conclusions, also appear in the conclusions section of this judgment. From the evidence that we heard and the documents we were referred to we make the following findings of fact:12.1 The claimant worked as a warehouse operative at the respondent’s Hams Hall distribution centre. Mr Kang, was, at the time of the events with which this case was concerned, the claimant’s manager. Mr Kang’s shift captain was Cesar Escobar.

12.2 Mr Kang and the claimant were in a relationship for approximately 4 years which started in 2018. We accept the evidence of Mr Kang and find that he ended this relationship in January 2022. Initially at least, the relationship between them did not appear to deteriorate. Based on the claimant’s additional documentation we find that on 1 February 2022 Mr Kang sent WhatsApp messages to the claimant to confirm that he had paid for her TV licence and he also answered questions she had raised about tax and about what appeared to be a windscreen wiper for a car. On 22 February 2022 Mr Kang sent the claimant a WhatsApp message containing an indecent image which was captioned with what might very loosely be described by some (but not by the tribunal) as a joke. So far as we know the claimant did not respond to this message and it was mixed in with numerous other mundane messages between the claimant and Mr Kang with Mr Kang arranging to meet with the claimant at IKEA and making arrangements to go to her house to assemble a wardrobe for her. Mr Kang told us in evidence that he could not remember sending this image to the claimant. We find that Mr Kang did send this image to the claimant, essentially because it was clearly sent from his WhatsApp account. We do not, however, draw an adverse inference against Mr Kang in this regard. We explain why this is so in our conclusions, set out below.

12.3 We accept the evidence of Mr Kang and find that shortly after this he began to experience multiple incidents of harassment, both at work and outside of work, by the claimant. We also accept his evidence and do not find that he made masturbatory gestures towards the claimant and give her the middle finger whilst at work. We set out in detail in our conclusions why we have resolved these disputes of fact in the respondent’s favour. Whatsapp messages claimant to Mr Kang

12.4 We accept the evidence of Mr Kang and find that by March 2022 the claimant was repeatedly making contact with him by telephone and WhatsApp. Many of the WhatsApp messages were inappropriate and unpleasant, and on occasion they were threatening. WhatsApp messages can, of course, be deleted not just by the recipient of the message but also by the sender of the message. We accept the evidence of Mr Kang and find that there were many occasions when the claimant would send him a message and then later delete it. We also accept his evidence and find that he too would frequently delete her messages. However, he kept a selection of them. We do not set them all out here but provide a representative sample:

12.5 On 20 March 2022, shortly before midnight, the claimant sent Mr Kang two WhatsApp messages in quick succession. In the first she wrote: “understand once, madman, unlock me from the other phone (a reference to him having blocked one of her numbers) understand once, I’m tired, you’re really not sane, for two months I’ve been coming to Wednesbury every day, I need you, understand once and for all, you are a mature man”, page 877.

12.6 In the second she wrote that she did not know how to assemble the lawnmower, change the clothes line, fix the fence, fix the latch on the garden door, did not know what bed or mattress to buy and “I don’t have nobody, I rely on you and I totally trust you, when you get back to normal, stop with the wickedness, I can’t anymore, I have so many problems in my head and you are indifferent”, page 877.

12.7 On 21 March 2022 in the early hours of the morning the claimant sent Mr Kang six messages in quick succession. In the first message she suggested they go shopping saying that she needed various things for the house and she said that she did not feel well when she saw the shortcomings in her house. She ended the message saying “please for God’s sake understanding”, page 877. In the second message sent just five minutes later she stated that she was waiting for an answer and asked Mr Kang to unlock her phone. In the fourth message she wrote; “I love you”, accompanied with a heart shape emoji, page 877. In the sixth message sent at 2:04 in the morning she wrote: “understand me, I love you so much (heart shape emoji) …… you are a special man”, page 877.

12.8 Messages from the claimant to Mr Kang continued into the morning of 21 March.

12.9 We accept the evidence of Mr Kang and find that by this time he was sufficiently concerned about the claimant’s behaviour that he had spoken to the police. We accept his evidence not least because it was consistent with a Whatsapp message that the claimant sent to Mr Kang on 21 March at 9.19am, page 877, in which she wrote that the police had advised her not to see him outside of work, page 878.

12.10 Eight minutes after this she sent a further message saying: “why are you threatening me with the police, it’s a lie of yours, if that’s what you want, listen to me, the police won’t forbid me to have a discussion with your daughter, I’ll have a discussion with your daughter, I’ll fill your postcard (sic) with photographers (sic) and I will move to Wednesbury by May 15, I will rent a house one minute walk from you and we will see each other daily”, page 878.

12.11 Nine minutes later the claimant sent Mr Kang another message saying that Mr Kang was driving her away and that he would feel for himself what it means to disappoint his child and family and that she would talk to his family, page 878.

12.12 Four minutes later she sent him a further message: “if that’s what you want, I have nothing to lose, if I lost you, I will move to Wednesbury to see you every day and we will be neighbours, you will not get rid of me all your life, I will move to Wednesbury, I will move until May 15, then my contract ends here”, page 878.

12.13 Five minutes later another message was sent by the claimant: don’t scare me anymore with the police, because I’m not an aggressor, I don’t come to you in the house, but I’ll talk to your daughter, I won’t say more, you want your family not to know, they will find out, I will say that you don’t love women, you love man, I will show some footage from work with your gestures to Emeca, that you are happy, you love man, I have many records”, page 878.

12.14 Six minutes later the claimant sent Mr Kang another message saying that she would fill his mailbox with photographs and had many surprises. She stated that she would go to Jaga’s garage and would also go to the house of Toni, who she said was Mr Kang’s boyfriend: “because he thinks he made you break up with me, for him you broke up with me, I know much more than you think”.

12.15 Six minutes later she sent a further message saying that she would go to the police and make a complaint and they would both be fired at work. She stated that she would complain that Mr Kang was buying and selling cars without paying taxes, page 879. Four minutes later she sent a further message: “I’ve never hurt a person, but if it’s all over between us, you’re a coward, you’ve sown wind, now you must be ready to pick up a storm, I’m sorry but I have no choice”, page 879.

12.16 The claimant continued to send Mr Kang multiple messages that day including telling him that she would go to the temple, page 880.

12.17 Mr Kang responded to that message saying: “thanks for showing me your true face goodbye. You think your threats and blackmail will make me come back to you. You’re sadly mistaken it’s pushing me further away”, page 880.

12.18 At 11:17 AM she wrote: “how can you come back to me, you love men, you love orgies with men, you are different, there are no threats, I have nothing to lose, you are no longer mine, I will denigrate you, I will take off your mask,”, page 880.

12.19 10 minutes later from the claimant: “and at work I don’t like that job any more, but I won’t leave you there either, we’ll both be guilty, we’ll both be fired”, page 880.

12.20 At 11:54 AM the claimant wrote: “I will approach an Indian man who is part of your family, and who no longer has a wife”, page 881.

12.21 And then later that day just before midnight she messaged him to say: “I never want you to come back to me, you are not what I want, I love Indians, Indian men, you are Indian woman, you like men, and to end this masquerade tomorrow I took time off work, tomorrow at 10 o’clock I will be in Council at Wednesbury to make a complaint against you…… I will file a complaint against you, and then I will go to the police, and after that you will have a big surprise”, page 880.

12.22 She messaged again almost immediately after having sent this message saying that she would also go to the temple “and then you’ll get a big surprise”. She ended her message writing “I hate you now”, page 881. Immediately after this she wrote: “you will beg me to stop, not really I don’t want you any more, I hate you, you are cowardly, and you are a woman, yes you are a woman”, page 881.

12.23 Immediately after that another message: “you sowed wind, you reap a great storm, I love the sun and I love an Indian, an Indian man, you will have a big surprise, when you see me in his arms, and you will lie in pain, I will denigrate you in the whole Indian community I will denigrate you at the temple, I will denigrate you in your family, you will live drama”, page 882.

12.24 Messages from the claimant continued into 22 March. In one sent shortly after midnight the claimant wrote “I still have pictures on the other phone, it’s time to pay”, page 883. At 2:13 AM she wrote that she would go to the police with recordings, that she had hundreds of photographs, recordings and film, page 884.

12.25 At 4:11 PM on 22 March you wrote: “your fear and your fear for your family is inevitable, you will be disappointed in me, but I had no choice”, page 883.

12.26 Mr Kang very rarely responded to these messages. He did send the claimant a message at 9:35 AM on 23 March in which he wrote: “I will only one regret in life (sic) against my better judgement that I got involved with you and I begged people to give you a chance at work after you were fired this regret will be with me until I die. Thank you for all you are doing for me God will repay you in kind”, page 884.

12.27 The claimant’s response to this was: “I asked you to give me one last chance at our relationship, I was wrong I admit, but understand that I have changed, I have changed the locks, the devil has taken over your soul, turned you into a monster, you do only fools”, page 885.

12.28 On 25 March 2022 at 6:38 in the morning the claimant messaged Mr Kang to say that he would beg her to forgive him, that they would not see each other at work because they would both be fired, that she would move to Wednesbury by May 27 and they would be neighbours and see each other every day and that all the suffering, humiliation and drama in her soul would transfer to him, page 885.

12.29 Messages from the claimant to Mr Kang continued on 25 March and at 11:33 AM she wrote: remember, if you don’t unlock my Vodafone phone today, tomorrow morning when we leave, you will have a big surprise, it’s not a threat, but I told you to get ready, to take your pills, not to have a heart attack, because no I wish no one death (sic), I want you to live what I have been living for three months, humiliation, denigration, I never want you to come back to me, never, but I want you to pay for all the pain of my soul, and remember how much longer we will work together, respect me”, page 885.

12.30 Messages from the claimant continued. At 2:37 PM on 25 March she wrote “I love you Major…. You are present in my soul”, page 886.

12.31 At 2:57 PM she wrote: I said a lot of bad words, I upset you a lot, please forgive me,….. You know I need your service, and you need it, your body needs it, you’re too nervous, agitated, my pussy you will calm down, this is the truth”, page 886.

12.32 Mr Kang responded to this message stating that he would not come back to the claimant’s house again, that she had threatened his family and him and he could not forgive or forget, and that he had met with the site manager, told him about the claimant’s plans to get him fired and printed off her messages as proof, page 886.

12.33 Mr Kang blocked the telephone number from which these messages were sent on 28 March 2022, page 886.

12.34 We accept the evidence of Mr Kang and find that on 19 April 2022 he reported the claimant to the police and sent copies of her messages to them. The police subsequently told him that they had called the claimant in for an interview at the police station and warned her not to contact him.

12.35 We accept the evidence of Mr Kang and find that on 23 April 2022 he saw the claimant parked at the top of his road and when he left home to drive to the local shop she followed him in her vehicle. When he got home later that day his daughter told him that the claimant had later come back to his house and posted something through the letterbox but had then come back and retrieved the item. His daughter had called the police. Application for first non molestation order

12.36 In May 2022 Mr Kang made an application for a non-molestation order against the claimant. We accept Mr Kang’s evidence and find that he made this application to try to stop the claimant’s conduct towards him and his family. We also accept the evidence of Mr Kang and find the order was not granted because things calmed down once the application was made and the family court concluded there was not an imminent risk of harassment. We accept that evidence because it is supported by what is written in the judgment, pages 873 – 874, namely that “upon the court finding that the parties relationship ended and yet the parties work together in the same employment and the applicant stating that things have calmed down and upon the court finding that the applicant is not at imminent risk of being harassed or threatened the application for a nonmolestation order is dismissed.”

12.37 Things did calm down for a period of time after that but then started to deteriorate again. In early 2023 Mr Kang reported the claimant to the police for driving recklessly and braking aggressively in front of him. The police took no action. We accept his evidence and find that she was verbally abusive around this time saying she would destroy him. She also constantly referred to him as a gay man and a homosexual. We accept his evidence and find that she would make masturbatory gestures at him and give him the middle finger at work. Incident January 2023

12.38 We accept the evidence of Mr Kang and Mr Munday and find that during the night shift of 8/9 January 2023 whilst in the canteen the claimant called Mr Kang (and Mr Escobar) a “wanker” and also made the “wanker” sign to Mr Kang. This happened in front of Mr Carl Oakes, a member of shift D. She also told Mr Kang that he was not a good manager, that “he liked ass” and that her boyfriend would sort him out, and she grabbed her crotch. Mr Kang reported this incident by email to Mr Munday. This email was not, in fact, in the bundle that was before us but we accept and find that it existed because when an investigatory interview was carried out with the claimant by Martin Billingham he referred to having received this email from Mr Kang (albeit he referred to it by the wrong date) and he read out parts of what was written in the email to the claimant, page 228.

12.39 Mr Oakes provided a very brief witness statement about the incident on 9 January. He wrote in this statement that the claimant had called both Mr Escobar and Mr Kang a wanker, page 223. Mr Oakes was subsequently interviewed and he confirmed once again that he had heard the claimant make these comments, pages 225 - 226. The claimant was interviewed by Mr Martin Billingham on 25 January 2023, pages 227 – 229. A Romanian interpreter was present for the claimant, Ms RalucaGabriela Popa, page 227. The claimant denied the allegations. She asserted that what she had said was that every time she said something Mr Kang made an obscene gesture which she believed to be a wanker gesture, and then she went back to work. She described her relationship with everyone, including Mr Kang, as a good relationship.

12.40 After the claimant’s interview she repeatedly made contact with Mr Oakes by WhatsApp suggesting that he was not telling the truth, pages 237 – 242. She also told him that she was being discriminated against and was innocent. Mr Oakes responded that she needed to speak to Mr Munday and HR, page 242. We do not know the exact date of these messages, they appear to have been sent between the end of January and mid-February 2023 (see index to the bundle). Disciplinary outcome and first recommendation to move the claimant from shift D

12.41 On 2 February 2023 Mr Billingham wrote to the claimant with the disciplinary outcome, which was that she was to be issued with a stage III disciplinary warning (i.e a final written warning), pages 233-234. Mr Billingham also wrote in his letter that the respondent would enter consultation with the claimant about moving her onto another shift. She was informed of her right to appeal.

12.42 On 2 March 2023 the claimant wrote saying that she wished to appeal the decision, and she also wrote that she wished for Mr Oakes to accompany her at the appeal hearing, page 235. The claimant sent two more appeal letters. In the second of these she wrote that she was innocent, was alone, did not have a man and would only tell the truth, page 251. She also asked whether the respondent had a Romanian interpreter or whether she should come with an interpreter. Further Whatsapp from the claimant to Mr Kang

12.43 On 15 March 2023 Mr Kang blocked one of the claimant’s telephone numbers, page 887. She messaged him that evening on an alternative number writing; “Let me fuck you in the ass once, if you live” followed by two middle finger emojis, page 887. Filming the claimant

12.44 We do not find that Mr Kang filmed the claimant on 21 March 2023 and 8 May 2023, we prefer the evidence of Mr Kang that he did not film the claimant on these dates. We do, however, accept Mr Kang’s evidence and find that he used his phone to video the claimant on six occasions, five of which were at work. These took place on 3 November 2022, on three occasions on 30 November 2022 and on one occasion on 10 July 2023. We accept his evidence and find that he wanted evidence of how the claimant was behaving towards him and he was also concerned that she would make false allegations about their interactions.

12.45 In April 2023 Mr Kang began to suspect that the claimant was deliberately stopping one of the machines on shift and on 23 April 2023 he emailed his manager asking for the CCTV to be checked because he suspected the claimant was stopping the E-stop on purpose. He also wrote that the verbal abuse from the claimant was getting worse, page 250. Disciplinary appeal hearing

12.46 The claimant’s disciplinary appeal hearing duly took place on 28 April 2023 and was conducted by Mr Munday, pages 253 – 258. A translator was present for this meeting. The claimant stated that she had had a four year relationship with Mr Kang and had been arrested. She was asked specifically about the incident in the canteen and she denied swearing at Mr Kang. She stated she did not have a problem with him but did not want to work too close to him. She stated that she could not change shifts because she had two jobs and changing shifts would affect her second job.

12.47 A decision in relation to the disciplinary appeal was not delivered to the claimant for quite some time. In the meantime, the situation effectively got somewhat out of control with the claimant sending message after message after message to the first respondent, making various complaints and allegations, and the first respondent struggling to deal effectively with this. Further Whatsapp messages from the claimant to Mr Kang

12.48 On 13 May 2023 the claimant messaged Mr Kang to say: “hello my dear friend, I have been looking at you for some time …. The one who was pulling in your ass left you! I’m still waiting for you, I look at you every day, every day”, followed by a middle finger emoji, page 888. Mr Kang then blocked this telephone number.

12.49 The claimant sent Mr Kang 11 Whatsapp messages on 14 May 2023 from a different number, all of which she deleted. Mr Kang blocked this number, page 889. We accept the evidence of Mr Kang and find that these messages were offensive. Claimant’s first grievance 22 May 2023 (the first asserted protected act)

12.50 On 22 May 2023 the claimant sent a grievance to Mr Munday, pages 261-262. It was written in Romanian. The respondent arranged for this to be translated for Mr Munday, and the respondent’s translation appeared at pages 263 – 264. The claimant wrote at the start of this grievance that she had a complaint about the way in which she was being treated by Mr Kang. She wrote that she had evidence, in the form of screenshots of WhatsApp’s conversations, which she had attached to the end of her grievance. In fact, what the claimant had attached to her grievance were not screenshots of WhatsApp’s conversations between her and Mr Kang but messages from the claimant to another person, identified on Whatsapp as Dvstina Q2, pages 923 – 928. There were no messages from Mr Kang to the claimant attached to the grievance. So far as the claimant’s WhatsApp’s were concerned, they contained her account of some alleged incidents, although some of what she wrote about Mr Kang was extremely vague and in general terms. For instance, she suggested that on June 28 colleagues were not working and she wrote “watch the surveillance cameras all night and you will see who Major Kang is”, page 924.

12.51 The claimant complained in her grievance that Mr Kang had said that Marcin (a reference to Marcin Debek a shift leader on another shift) was her boyfriend, page 263. She stated there were many occasions when she happened to be treated differently by Major (Mr Kang) than other colleagues. She stated that Major put on a headband with reindeer antlers on 17 February 2023 and then made obscene scenes at her in front of others. She complained he had thrown a box of hair dye into pallets. She stated that on 3 April Cezar (Escobar) went to the toilet and returned 15 minutes later and on the way back Major made obscene gestures and said “did you masturbate too much since you spent so long in the bathroom”. She complained that on 22 April Mr Kang accused her of stopping the line deliberately. She stated that “another discriminatory gesture that Major always makes” was that at the start of the shift he would hand everyone gloves but always threw them (we assume she meant hers) on the table. She wrote that she believed Mr Kang was “discriminating against her” and accusing her of things she did not do to get revenge. She stated that she was innocent of the earlier alleged misconduct against her.

12.52 On 23 May Mr Kang was interviewed again, this time in respect of the claimant’s appeal against the disciplinary outcome, page 265. Mr Kang confirmed that the claimant had called him a wanker and he also stated that Mr Oakes had written his witness statement on his own. He started to explain about things that he said had happened at his house involving the claimant but Mr Munday interrupted him to say that the respondent could not get involved in anything that happened outside of work.

12.53 On 26 May 2023 at 6.15pm Mr Munday spoke to Mr Oakes about the claimant’s disciplinary appeal, page 266. Ms Carol Munday, Mr Munday’s wife, who was providing HR support to the respondent via an agency, was not physically present at this meeting but she attended via Teams to take notes. Mr Oakes confirmed during the course of this conversation with Mr Munday that the claimant had called Mr Kang a wanker and had also said that he was not a good boss.

12.54 Some of the additional documentation produced by the claimant during the course of this hearing was in the form of Facebook messages sent between the claimant and Mr Oakes in December. We were not told the year these messages were sent but given that they related to the contents of the final hearing bundle we would infer these were sent in December 2024. In one of these messages the claimant wrote:

12.55 “Carl I don’t think John Munday interviewed you 6:15 PM in his office and he was with his wife??? Is that a lie??? This document is formal, is it unsigned????? And in what capacity did Carol Munday take notes???? Is she employed by the agency??? Is she the wife of site manager John Munday???? Don’t be afraid to answer me!! They have no right to do anything to you, not even to interview you again??? She attached a copy of a statement to this message, although our copy of this was not legible.

12.56 Mr Oakes responded to this: “I did not have an interview with John and his wife I can’t read the statement by phone won’t zoom in enough to see it”.

12.57 We do not infer and find from this message, as the claimant effectively invited us to do, that the interview with Mr Oakes on 26 May 2023 did not take place and/or that what Mr Oakes was recorded as saying in that interview was falsified. We do not make this finding for the following reasons: 1) Mr Oakes was not called as a witness before us. 2) The message sent by Mr Oakes is open to various interpretations - read literally he could simply have been saying that the interview did not take place with Mr Munday and his wife, which was correct. Mr Munday, as set out above, was the person interviewing Mr Oakes his wife only attended remotely in a capacity as a note taker. 3) We were also mindful that this was one of the documents produced by the claimant partway through the hearing, in fact it was produced during the cross-examination of Mr Munday, (albeit without objection from the respondent). That meant, of course, that the respondent did not have a proper opportunity to consider the document and deal with it in advance of the hearing, as would ordinarily be the case. Claimant’s second grievance; 26 May 2023

12.58 On 22 May the claimant added three further pages to her grievance of 22 May. These pages were written in Romanian, pages 230 – 232. The respondent arranged for these additional pages to be translated, pages 273 – 274, and we infer the translation was forwarded to Mr Munday as the earlier part of the grievance had been addressed to him. The claimant wrote that on 1 February 2023 Mr Kang had made obscene gestures to her and that on 15 February 2023 he had called her stupid. She complained that on 16 February 2023 a colleague, Ms Spiridion, had shown her the middle finger. She complained that on 5 March 2023 Mr Kang had made obscene gestures with bread in front of Mark (Bhagwanden) and Carl (Oakes). She complained that on 21 March 2023 Mr Kang had recorded her. She complained that on 7 May and 22 May “they” (which seemed to be a reference to Mr Kang and Mr Escobar) found a drill and started making obscene gestures with it. Claimant’s third grievance 14 June 2023

12.59 On 14 June 2023 the claimant raised another grievance to Mr Munday, pages 289 - 290. However, the document was written in Romanian. Mr Munday cannot read Romanian. He did not get this document translated at the time; the first time he saw a translation was when the claimant provided one in January 2025. This translation was carried out in January 2025, and was an official translation of a number of the claimant’s grievances, pages 949 – 957. The relevant part for the 14 June grievance appeared to be pages 955 – 956. In this grievance the claimant made allegations about a colleague not wearing a vest when working on the line. She stated that on D shift there was no respect and work was done without conscientiousness or responsibility. She appeared to assert that colleagues “make love” at work, that products were being taken out (stolen) from the warehouse and that rest breaks were not adhered too, although she did not provide details about these alleged incidents. She suggested that Mr Khan had signed an attendance sheet for another colleague and also stated there were “many scenes of love” between two colleagues, Cezar and Lilliana, in the presence of Mr Kang who just kept quiet. She did not make reference to discrimination, harassment or victimisation in this document. At the very end of the document she did write that she had been “treated to signs obscene” but there was no explanation as to what she meant by this, or a single example set out. Claimant’s grievances of 16 and 17 June 2023

12.60 On 16 June the claimant sent a WhatsApp to Mr Munday asserting that she had been humiliated again by Mr Kang on May 25 and 2 June, pages 291 - 292. She did not set out what Mr Kang was alleged to have done. She stated that she had complained to Martin and asked him to get written statements from colleagues but was then given the silent treatment by Martin and he told her that she had to appeal to Mr Munday. She wrote that the decision she had received from Martin for her was a death sentence and she did not understand why she was being treated like this. She complained there was anger between colleagues on the line, there was no discipline and break times were not respected. She complained that products were being taken out of the warehouse (ie stolen) and she wrote that these irregularities worried her a lot.

12.61 On 17 June the claimant emailed Mr Munday to say that the previous night 21,000 boxes had been washed on D shift and no test was done on them, page 293. On 25 June the claimant sent another email to Mr Munday saying that she had been humiliated again in front of her colleagues on 24 June; “please help me, only you can stop this suffering”. She did not explain or set out what she asserted had happened.

12.62 We accept the evidence of Mr Kang and find that on 25 June 2023 the claimant repeatedly told him that he and a colleague, Cesar Escobar, were “wankers”. She also went repeatedly to his office saying to him that she would destroy him. Mr Kang felt the situation had become untenable. On 26 June at 10:30 PM he emailed the site manager, John Munday, complaining about these incidents. He explained what had happened. He also stated that he was getting verbal abuse from the claimant on a daily basis and was trying not to engage with her about anything but work. He stated the situation needed to be dealt with as soon as possible, page 300.

12.63 In the meantime, the respondent had started investigations into the complaints made by the claimant in her grievances. Hayden Long, James Sekeyre, Eric Boakye and Paul Morkeh, all members of shift D, provided statements on 26 June 2023, pages 296 – 299. None of these witnesses suggested that Mr Kang was harassing the claimant. Three of them reported that the claimant was trying to cause problems. For example, Hayden Long stated that the claimant was always trying to make trouble for Mr Kang and had a folder of stuff which she tried to show everyone. He said that when he asked her why she had a problem with Mr Kang she had no answer but that she went on every day to the point it was becoming very annoying. He stated she was showing court documents to anyone who would look just to make Mr Kang look bad. He described her as going on constantly every night. Mr Sekyere described the claimant as causing problems all the time and spreading lies about people. He described her as talking with disrespect to both Mr Kang and Cesar Escobar and said that she seemed to have a problem with other people. Paul Morkeh described the claimant as trying to cause problems on the shift between staff by telling lies. He described her as causing arguments on a daily basis.

12.64 The claimant sent further complaints by WhatsApp to Mr Munday between 27-30 June 2023, pages 352-358, alleging that she was being discriminated against and saying that she had ended her relationship with Mr Kang. She did not explain what the discrimination was said to be. She described herself as being helpless and sentenced to death, page 352. At one point she alleged again that Mr Kang had said that her boyfriend was Marcin, a colleague at work. She sent a further WhatsApp on 11 July, page 359, saying she had been humiliated by Mr Kang, although again she did not set out any details about the alleged incident.

12.65 On 12 July Mr Kang, on his own initiative, took a brief witness statement from a colleague, Ms Spiridion, and put it under Mr Munday’s office door. Mr Kang emailed Mr Munday to say that the claimant was “always having a go” at Ms Spiridion and he also complained that the claimant had verbally abused him that morning, page 306. Ms Spiridion’s witness statement stated that the claimant was always having a go at her and this was stressful. She complained that the claimant was making rude gestures and saying that Ms Spiridion would get fired when Mr Munday checked the cameras, page 303.

12.66 The claimant sent Mr Munday further WhatsApp messages on 13 and 14 July, pages 363-367 and a further message on 19 July, page 368. She complained again that products were being taken out of the warehouse, she stated (repeatedly) that she was innocent, and said that Mr Kang had signed Ms Spiridion in for work. In the 19 July message she complained that Mr Kang had referred to the claimant’s boyfriend at a shift meeting. She also stated that she wanted to see the complaint that Ms Spiridion had made against her. She said that Mr Kang was acting maliciously.

12.67 On 19 July 2023 Mr Kang emailed Mr Munday again. He stated that Ms Spiridion had spoken to him about the verbal abuse she was getting from the claimant, this time at the smoke shelter at lunchtime. He wrote that whilst he was taking a statement from Ms Spiridion the claimant walked off her workstation and came into his office. He wrote that the claimant’s harassment was escalating on a daily basis and she needed to be removed from the shift, page 324. He took another statement from Ms Spiridion in which it was recorded that the claimant had said to Ms Spiridion that she likes “too much dick”, page 307.

12.68 Mr Munday asked Mr Billingham to carry out some further investigations into the complaints made by the claimant. On 19 July 2023 he carried out interviews with Ms Spiridion, Mr Sekyere, Mr Bhagwandeen, Mr Taylor, Mr Malaseed and Mr Alamu, all members of shift D, pages 310 – 323. The only questions asked on this occasion were about what was said by Mr Kang to the claimant about Marcin being her boyfriend. No one corroborated the claimant’s allegations, other than Mr Bhagwandeen who confirmed that he had heard Mr Kang refer to the claimant’s boyfriend. Some reported that the claimant was behaving inappropriately. For example Mr Bhagwandeen described the claimant as provoking other members of staff, making comments to upset them and trying to start arguments. Mr Kang was also interviewed on 19 July, pages 308 – 310. He accepted that at the end of the shift briefing on 18 July he had said that “Christina’s boyfriend was going to bury me (in a box)”. He said that this was a joke made because the claimant was always threatening him that her boyfriends were going to sort him out. Disciplinary Appeal outcome

12.69 On 20 July 2023 Mr Munday held a meeting with the claimant to deliver the outcome of the disciplinary appeal to her, pages 325 - 333. There was discussion about some of the witness statements that had been obtained by the respondent and the claimant suggested that witnesses had been threatened by Mr Kang to give bad statements about her. The claimant denied that she had said the word “wanker” to Mr Kang but accepted that she had made a gesture to this effect. She stated on a number of occasions that she could not change shift because she had another job, and she said that she was not guilty and should not move shifts. Mr Munday explained to the claimant that he was upholding Mr Billingham’s decision to transfer her onto the B shift. However, he also asked the claimant if she would prefer to work on another day shift which would not affect her second job. The claimant said she was not moving. Mr Munday offered the claimant a four-week transition period where she could still work days but told her that if there were further issues between her and colleagues the transfer would need to happen more quickly. He told her that he had to have the best interests of the site at heart and eradicate conflicts, and that her warning had been issued for conflict with Mr Kang.

12.70 The appeal decision was confirmed to the claimant in writing by way of letter dated 21 July 2023, pages 337-338. Mr Munday wrote in this letter that he had decided to uphold the decision of Mr Billingham to issue a final written warning and move the claimant to another shift. He stated that this decision had been taken because the “actions” against the claimant had been proven. In fact, Mr Munday was of the view that the claimant had actually admitted, at least in part, the conduct in question during his interview with her as she had accepted that she had made a “wanker” gesture to Mr Kang. He confirmed that she would be moving from shift D to shift B from 22 August 2023. Further complaints from the claimant

12.71 After this, the rate at which the claimant raised complaints increased significantly. On 23 and 24 July the claimant sent Mr Munday six separate emails making complaints about Mr Kang, pages 339-344. These complaints made repeated references to being sentenced to death, including for example that “whoever refuses Major Kang sexual advances is sentenced to death”. She sent a further 10 emails on 26 July, many of which were to John Munday, making much the same complaints as previously, pages 346-351. She sent a further three emails to Mr Munday on 28 July making various allegations about members of the D shift, pages 384-386. 12.73 Mr Munday took HR advice. It was decided to hold a meeting with the claimant to give her an opportunity to discuss all of the complaints that she was raising and to discuss the decision to transfer her to a different shift. In the meantime on 28 July 2023 Mr Kang emailed Mr Munday to say that he was giving him a heads up that the claimant “was mouthing off last night that she was contacting GXO America trying to stir up more trouble”, page 391. Meeting 2 August 12.74 On 2 August 2023 there was a further meeting between the claimant and Mr Munday, pages 498 – 500. A colleague called Loredana attended to translate for the claimant and Ms De Vries from HR also attended the meeting. The claimant was asked at the start of the meeting if she felt that her and Mr Kang could continue to work on the same shift and she stated that she thought they could. The respondent responded that they were concerned that she could not stay on the shift due to the situation and the complaints that were being raised. She was then asked various questions about the job which she had said she had outside of the respondent. The respondent explained to the claimant that in its view the situation between the claimant and Mr Kang was not good and was impacting the claimant, Mr Kang and the site. The claimant said that Mr Kang wanted revenge. She was asked to give examples of the discrimination and harassment and she stated that Mr Kang did not speak with her and made sexual remarks at work. The respondent stated that the issue was that the relationship between the claimant and Mr Kang had broken down, it was tit-for-tat and they needed to be separated. The claimant said she was not able to answer this. 12.75 She was asked whether she could give assurances that the breakdown of the relationship and the issues would not continue if she remained on shift and she stated that she had no issues with Mr Kang but he had issues with her. It was pointed out to the claimant that she kept on messaging people raising concerns but the claimant reiterated that she wanted to stay on shift. The respondent explained again that it had concerns about the impact of the conflict on the operation and the messages the claimant was sending others. The claimant stated it was not okay for her to move shift. The respondent once again reiterated that in their view the relationship with Mr Kang had broken down and was impacting others. The claimant was asked to stop emailing colleagues. She was also asked to give examples of what she considered to be discrimination and she stated that she had not been trained on PPT. She was asked for further examples and she responded that Mr Kang harassed her for revenge for ending the relationship. The respondent reiterated again that in its view the relationship had broken down and it was impacting the site. 12.76 On 3 August 2023 Mr Martin Billingham again interviewed Mr Kang about the allegations made by the claimant, pages 411 – 412. Mr Kang stated that the claimant had a demoralising effect on the shift as she was always telling staff she was going to get him sacked and he said that she was upsetting Ms Spiridion because she was telling staff on shift that Ms Spiridion was having sex with everyone. Mr Kang denied the allegations that had been made about him by the claimant. He also described his relationship with the claimant, stating that he only talked to her if it was about work, and he avoided other contact with her because, in his view, she was always trying to cause an argument and get a reaction from him. He stated that he thought this was because of their past relationship and he explained that he had previously raised issues about her behaviour both to work and the police. He also stated that the claimant was always making rude gestures towards him when nobody was around. He said that the claimant was a bad influence on the shift because she caused trouble between the staff by telling lies and this had been reported to management on several occasions. He did accept that he had made a comment about the claimant’s boyfriend. 12.77 Interviews were also carried out with Mr Sekyere, Mr Oakes, Mr Alamu, Mr Long, Mr Morkeh, Mr Malaseed and Mr Escobar, pages 401 – 410. No one corroborated any of the claimant’s complaints. Mr Sekyere stated that “something didn’t seem correct” in the relationship between the claimant and Mr Kang. He confirmed he had never seen people removing items from the warehouse or drinking alcohol. He confirmed that rest breaks were adhered to and that he had not seen any inappropriate behaviour from managers. He stated that he believed the claimant had a lot of problems with most people on shift, suggesting that she had a mental health issue. Mr Oakes described the claimant as “having a go at” Mr Kang. He stated he had not seen anyone drinking alcohol on shift although he had heard the claimant suggest this was happening. He stated he had not seen anyone removing items from the warehouse but had heard the claimant suggesting this was happening. He stated rest breaks were adhered to and he had not seen any inappropriate behaviour from managers. 12.78 Mr Alaumu stated that he thought things between Mr Kang and the claimant were not good and he said that in his opinion the claimant had a problem with Mr Kang. He stated he had seen her have a go at him but that he had never seen Mr Kang have a go at her. He confirmed that he had never seen people drinking alcohol on shift, removing items from the warehouse or seen inappropriate behaviour from managers. Mr Long described the atmosphere on D shift as “quite bad”. He stated that the claimant like to moan about anything and everything and that Mr Kang said things to wind her up and she then had to go back. He stated she had a problem with Ms Spiridion and said nasty stuff about her behind her back. He confirmed breaks were adhered to and that he had never seen people drinking alcohol or stealing. He also confirmed that he had not witnessed any inappropriate behaviour from managers. He stated that the claimant was always moaning to him about all the staff on shift. Mr Morkeh said that the atmosphere on the shift was good, except for the claimant. He described her as always causing arguments and confusion between staff. He described her as telling lies and causing lots of arguments. He confirmed breaks were adhered to and that he had not seen people stealing or drinking alcohol. He confirmed he had not witnessed any inappropriate behaviour from managers. 12.79 The claimant sent a further seven emails on 3 August 2023 to Kathryn Langford of HR, raising much the same issues as previously, page 417 – 423, and also on 3 August she sent over twenty emails to the Ethics Hotline, page 607. She sent a further nine emails on 9 August addressed to the HR support team, pages 424, 425 and 427- 433. She sent a further email on 8 August 2023 to the GXO Ethics Hotline email address stating that whoever refused Mr Kang’s sexual advances would be sentenced to death, kicked out of the team and humiliated and discriminated against, page 437. 12.80 She sent a further 35 emails to the HR support team on 9 August 2023, pages 439 – 495. These made various allegations primarily against Mr Kang and Ms Spiridion, including that Mr Kang had made obscene gestures at work. On 10 August the claimant sent a further 18 emails to the HR support team, pages 478 – 495. Meeting 10 August 2023 12.81 Mr Munday and Ms De Vries held a further meeting with the claimant on 10 August to discuss the complaints that she had been raising, pages 501 – 506. Ms Mincu attended the meeting to translate for the claimant. Ms Mincu was an employee of the respondent but was not based at the claimant’s place of work and did not know the claimant. The claimant said she was “OK” with Ms Mincu translating. At the start of the meeting there was a discussion about police involvement in the situation between her and Mr Kang and the claimant confirmed that the police had requested that she did not go near Mr Kang’s house. She was asked once again to provide examples of what she believed to be discrimination and she said that she had sent a 100 emails to HR giving examples. She was asked to give examples of what she meant by harassment. She firstly complained about use of the word wanker and then complained that Mr Kang had said Marcin was her boyfriend. As a further example of harassment she said that other colleagues helped Lillian Spiridion more than they helped her. She said that was because Ms Spiridion was having sexual relations with two colleagues. She described Ms Spiridion as always coming in to work in tight trousers. The claimant asserted that men touched Ms Spiridion and then went to the toilet and the team leader would then say there was too much wanking. 12.82 The claimant reiterated on several occasions that she wanted to stay on D shift. There was much discussion about why this was so, with the claimant explaining for the first time that the husband of her daughter was on B shift and the grandchildren needed someone at home. Ms De Vries stated that it felt like this all came down to moving shifts, with the claimant either staying where she was where the relationship had broken down or moving. The claimant responded that action should be taken against Mr Kang. Ms De Vries told the claimant that the relationship, or lack of relationship, was impacting the operation and the team and that the respondent needed to do what was best all round to resolve the issue. Mr Munday told the claimant that the relationship breakdown had caused a problem at work and they needed to find a resolution. The claimant was asked not to message colleagues either on site or on other sites whilst there was an investigation ongoing. 12.83 On 22 August 2023 the claimant sent a further 6 emails to Mr Munday, pages 573 – 578, all of which she described as grievances. These were repetitive in nature, repeating allegations which had already been made against various colleagues on D shift. On 23 August she sent 3 emails, all titled formal grievance, to Mr Kang, Mr Munday and Ms Langford, pages 594 – 597 and on 24 August she sent 3 emails to Mr Mark Simmons from HR, pages 596 -599. All were repetitive in nature. Grievance outcome 25 August 2023 12.83 By this point the claimant had started to raise concerns about Mr Munday and so a decision was made by the respondent after 10 August meeting that the claimant’s grievances would be decided by Ms De Vries from HR, rather than Mr Munday. 12.84 On 25 August 2023 Ms de Vries wrote to the claimant pages 605- 608. She explained that she was making a decision in relation to the claimant’s grievance of 22 May 2023, as well as summarising recent events and confirming next steps in relation to the claimant’s employment with the respondent. 12.85 She set out the background in relation to the relationship between the claimant and Mr Kang and the breakdown of that relationship. She wrote that after informal attempts at resolution the claimant had been issued with a final written warning following an incident at work on 9 January 2023. She recorded that the claimant’s appeal against this disciplinary outcome was unsuccessful. 12.86 In relation to the claimant’s grievance of 22 May she wrote that the claimant had made a number of very serious allegations against a number of colleagues involving theft, indecent/inappropriate acts at site and rest breaks being abused. She wrote that the claimant had also alleged that she had suffered discrimination and unfair treatment albeit she had not explained the grounds on which she said she had suffered that or what type of discrimination she believed she had suffered. She noted that investigations had been carried out by Mr Billingham into the complaints raised and all members of the team had been spoken to. She stated that in her conclusion there was no evidence from any member of the team that supported the allegations the claimant had made but that the witnesses had confirmed there was an unhealthy atmosphere on the shift and issues between the claimant and Mr Kang. 12.87 She also noted that the claimant had made further complaints to the global ethics line. Ms De Vries set out a brief summary of what had been discussed with the claimant at the meetings in August, including the concerns that the claimant had raised about changing shifts. She also noted that the claimant had been asked to explain what she meant by discrimination and harassment and she had said that Mr Kang did not speak to her, ignored her and made sexual remarks to her because he was seeking revenge for the relationship ending. She stated that she had concluded this allegation was not proved. 12.88 She wrote that it had been discussed at this meeting that there were concerns around the huge number of emails and text messages that the claimant had been sending and was continuing to send to managers and colleagues at the site as well as to the ethics hotline, many of which were repetitive and had already been sent. 12.89 Ms De Vries confirmed to the claimant that the final written warning remained in place and that she was expected to return to shift B when she returned to work from her annual leave on 2 September 2023. Ms De Vries explained to the claimant that given the serious but wholly unsubstantiated allegations that the claimant had made, and continued to make, against her colleagues on shift D it was considered that it was untenable for the claimant to remain working alongside those colleagues. Instruction not to contact colleagues 12.90 Ms De Vries further noted that since 17 August the claimant had sent over 50 further emails and texts in relation to allegations that she had previously made. She pointed out that the allegations that the claimant continued to repeat had already been investigated and had not been upheld. It was said that the respondent now regarded the allegations as spurious and vexatious and that the volume of messages being sent was a disruption to the claimant’s colleagues. It was said that as a result of this the claimant was instructed to stop sending messages to colleagues on shift D (including Mr Kang), John Munday (Site Manager), and Kathryn Langford and Mark Simmons (who were both from HR). Ms De Vries wrote that now that the claimant no longer worked on shift D she should have no reason to contact her colleagues who worked on that shift. The claimant was instructed to make contact with either Ms De Vries or, in her absence, Fiona Murray, both of whom worked in HR, should she have any further questions and/or concerns that she wished to raise. 12.91 Between 25 August and 4 September the claimant sent a further 16 emails to various individuals, including Mr Simmons, raising much the same issues as previously, pages 600, 601 – 603, 609 – 616 and 635 – 639. For example, on 26 August 2023 the claimant wrote that she was not happy, she was not guilty and that all that was happening to her was Mr Kang’s revenge. She wrote that she had been discriminated, harassed and threatened with words and obscene gestures. She wrote that she had specified all of the indecent acts that had happened on the day shift and that she was a single woman who worked every day and paid taxes to the English state. She wrote that Mr Kang had an illegal car business and did not pay taxes and that he came to the warehouse for sex and to wash money, page 609. 12.92 On 1 September 2023 Ms Murray from HR held a Teams call with the claimant to remind her that her only point of contact should be either Ms De Vries or Ms Murray. 12.93 On 1 September 2023 the claimant started a period of sick leave from work. We do not know if or when she returned to work. 12.94 The claimant appealed the grievance decision and a grievance appeal meeting took place on 7 September 2023. The meeting was chaired by Mr Steve Pope, HR Director, pages 640 – 645. Georgina Mincu was present as a translator for the claimant. The claimant did not object to this. The claimant stated at the start of the meeting that she wanted to change the move to a different shift as she would not be able to do overtime, it was about the overtime and her part time job. The claimant stated that she was “sort of giving up with the other issues” but wanted to sort out the shift. She stated that she wanted the requirement to move to shift B to be looked at and changed. That said, she also said that she would like the respondent to look into Mr Kang’s behaviour towards her. 12.95 Mr Pope wrote to the claimant with her grievance appeal outcome on 12 October 2023, pages 646-647. He wrote that he could not find any evidence to support the serious allegations the claimant had made. He also wrote that he had made contact with the claimant’s alleged second employer and they had informed him that they had no record of the claimant working for them since January 2023. He wrote that he therefore understood that there was nothing stopping her from working on the B shift. He reiterated that the respondent’s expectation was that the claimant would work on that shift. Second application for a non-molestation order 12.96 We accept the evidence of Mr Kang and find that in September 2023, whilst the claimant was on sick leave, she came to his home and took photographs of several friends and family members and their cars. From December 2023 onwards she started to visit his home regularly and on occasion left notes on his car and on one occasion threw needles and food on it. He spoke to the police in January 2024 following an incident when the claimant telephoned him. Mr Kang installed CCTV at his home and a dashboard camera in his car. In February 2024 he applied for a non molestation order because he was concerned about the claimant’s behaviour and wanted it to stop. In the witness statement he provided in support of this application, pages 801 – 805, he described incidents that had happened both at work and incidents that happened outside of work. 12.97 The application for the non-molestation order was not successful, pages 814-816. We accept and find that this was because it was considered there was not an imminent risk of harassment to Mr Kang. It was noted in the judgment that the vast majority of the incidents complained about had occurred whilst the parties were working together and that the parties were now on different shift patterns at work. It was noted that the claimant had been off sick from work since August 2023 and that the last recorded incident of any note was in January 2024 when the claimant tried to contact Mr Kang via telephone. It was further noted that prior to that the last recorded incident of any substance was in December 2023, some six months ago and since then Mr Kang had installed CCTV cameras at his home as well as putting a dashcam camera in his car. It was further recorded that the parties “had been extremely forthright in their views that they wished to have absolutely nothing more to do with each other” and that the court was satisfied that the statutory criteria for the making of a non-molestation order were not met. 12.98 Apart from an incident on 28 July 2024 the behaviour from the claimant towards Mr Kang largely stopped after that. Claimant’s DSAR request 12.99 On 19 January 2024 the claimant made a request for her personal data, page 656. She requested a “full SAR including internal communications in between management in regard with my person from the beginning of my employment until present”. She also asked for CCTV footage at the time and dates mentioned in her formal grievance. 12.100 The respondent has a specific team that deals with data subject access requests, known as the Global Data Privacy Team. This team is not based at the Hams Hall site. This team uses an automated process to carry out searches for personal data. The way the automated process has been set up to work is that it locates all emails that have been sent that contain the individual’s personal data (using whatever search terms are input presumably), bar any email that was sent by the individual themselves. 12.101 Ms De Vries acknowledged the claimant’s request by letter dated 23 January 2024, page 657. The claimant was asked to confirm what she meant by “management” in her request, and in particular she was asked if she was able to clarify names of correspondence and to and from and dates. It was also explained to the claimant that whilst the respondent would endeavour to respond within one month it might be that more time was needed. 12.102 On 26 January 2024 the claimant emailed Ms De Vries stating that she was requesting full SAR correspondence from 1 January 2022 to date and that she was also requesting CCTV records for 16 dates in 2022 and 41 dates in 2023, pages 664-668. It had previously been explained to the claimant by Mr Pope that CCTV records were only retained for a short period of time. 12.103 Given the amount of information requested the respondent wrote to the claimant on 20 February 2024 explaining that they were extending the response period for up to 2 months but would endeavour to provide the information as soon as possible, page 670. 12.104 Ms De Vries asked the Global Data Privacy Team to carry out a search against three email accounts; John Munday, Mr Kang and Mr Billingham. We accept her evidence and find that this was because the claimant had said to her during a conversation about trying to narrow down the scope of the search that it was these email accounts that she wished to be searched. That, however, was the extent of Ms De Vries involvement in the search process. From there it was handled by the Global Data Privacy Team, overseen by Ms Sugden. 12.105 The DSAR response was sent to the claimant on 8 April 2024, page 679 - 686. It was explained to the claimant that it was not possible to obtain the CCTV footage as it had not been retained and in some cases cameras were not operating in the areas requested by the claimant. A large volume of documentary information was sent to the claimant, comprising approximately 1,110 pages. Whilst there was a lot of information sent to the claimant, it did not include any emails about the claimant for the period 1 January 2022 to August 2023. It was, we find, incomplete in this respect. We explain why we have made this finding in our conclusions. 12.106 On 8 April 2024 the claimant emailed Ms De Vries saying that the information that she had received only started from 23 August 2023, rather than 1 January 2022 as she has requested, page 675. She also queried the situation in relation to the CCTV footage, page 674. 12.107 Ms De Vries queried this with the Global Data Team who confirmed that the search had been done for the period 1 January 2022 - 19 January 2024, page 689. It was confirmed that the first search was run against the claimant’s name and nothing had come up and that the search was therefore re-done using the claimant’s email address, which produced the documents which were sent to the claimant. Ms Dawn Sugden from the Global Data Team also told Ms De Vries that she had spotted that the first (unsuccessful) search had been carried out against Cristina Buica not Cristiana Buica, and she confirmed that consequently she was going to ask for the search to be carried out again. Ms Sugden emailed Ms De Vries again on 11 April to say that the search had now been re-run and had not produced any additional documents to those already sent, page 689. Claimant’s grievance/complaint of 15 April 2024 12.108 On 15 April 2024 the claimant sent an email, page 697. The email header was cut off in our bundle but it would appear, looking at the emails that appeared above this, that it was sent to the respondent’s Global Data Privacy team. The claimant wrote that she had made a request for her DSAR file on 26 January 2024 and was not satisfied because the period from 1 January 2022 to August 2023 was missing. She asked for someone to intervene and check. Just 19 minutes later the claimant sent a second email to the Global Data Privacy team stating that this was the second complaint she was making and asking who she should call and who would intervene because she was not satisfied because the period from 1 January 2022 to August 2023 was missing, page 697. 12.109 The respondent’s Global Data Privacy team responded on 16 April stating that they could confirm the searches that had been carried out and the personal data provided to the claimant covered the full period of the claimant’s request from 1 January 2022 to 19 January 2024, page 697. The claimant was also told she could complain to the Information Commissioner, and she was provided with details. 12.110 Also on 16 April 2024 Ms De Vries emailed the claimant to confirm that a full search had been carried out for the period 1 January 2022 - 19 January 2024 and that all correspondence which had been located had been sent to her. She also reconfirmed that CCTV footage was wiped after 30 days and was not saved, page 694. 12.111 The claimant subsequently raised a complaint about the respondent’s handling of her DSAR request with the Information Commissioner’s Office, which was not upheld. Claimant’s grievance/complaint of 20 May 2024 12.112 In the meantime, the respondent had referred the claimant to occupational health. Once the report was received the respondent decided to arrange a welfare meeting with the claimant to discuss the contents of the report. 12.113 On 20 May 2020 the claimant emailed Ms De Vries, page 709. She requested that if Ms De Vries had contact details for the Romanian translator who had accompanied her to her medical evaluation (a reference to the appointment with the Occupational Health Doctor) that Ms De Vries contact the translator and schedule a face-to-face meeting at the warehouse. The claimant emailed again that afternoon at 2.03pm writing that she hoped Ms De Vries did not forget to schedule a face-to-face meeting at the warehouse that week with an independent interpreter, page 710. An external translator had been provided for the claimant by the respondent for the Occupational Health consultation. This was because occupational health are not part of the respondent and are based on a third party site, and consequently it was felt that it was best that someone completely external to the respondent attend this meeting. Interpreter for meeting 23 May 2024 12.114 Ms De Vries emailed the claimant on 21 May 2024 inviting her to attend a welfare meeting on 23 May. She explained that Georgiana Mincu would be present at the meeting to translate for the claimant. She pointed out that Ms Mincu had been used previously at meetings with the claimant without issue. She acknowledged that an external translator had been provided for the claimant when she attended the Axa meeting (i.e. the OH meeting) but explained that this was because the meeting had taken place in an external setting. She reminded the claimant that Ms Mincu was independent, in the sense that she was not a site-based person. We accept the respondent’s evidence and find it is their usual practice to use employees with relevant language skills to interpret for internal meetings, rather than using an external translator. 12.115 The claimant responded to say that she would attend the meeting, page 710. On 23 May 2023 the claimant duly attended the welfare meeting with Ms De Vries. Ms Mincu attended and translated for the claimant. At the start of the meeting the claimant tried to discuss the court case between her and Mr Kang and Ms De Vries informed the claimant that she was not prepared to discuss this as they were there for a welfare meeting. The claimant responded that she wanted a meeting with a lawyer and a translator, page 712. After further discussion the claimant said she was happy to continue. There was discussion about the fact that when the claimant returned to work she would be coming back to work on the opposite shift. The claimant’s response was that this was not certain yet and she wanted to rectify that, page 714. There was then a further discussion about this. The meeting ended with Ms De Vries stating that they would arrange a further welfare meeting at the end of June/beginning of July. 12.116 On 2 July 2024 the claimant emailed Ms De Vries saying that she was not happy that Ms Mincu had translated for her as she was not impartial, page 720. She asked for the respondent to provide a freelance translator. Ms De Vries responded by email saying that Ms Mincu was impartial and had supported previous meetings with the claimant with no issues. However, the respondent subsequently decided that it would provide an independent external translator for future meetings with the claimant. Interview Mr Boayke 12.117 On 18 November 2024 Mr Munday interviewed Mr Boayke about some of the claimant’s allegations, pages 748-749. We do not find that these interview notes were false or inaccurate, as suggested by Mr Boakye to us. There was nothing to suggest these notes were false or inaccurate; they were handwritten and appeared to be close to verbatim and Mr Boayke’s only rationale for putting forward why he considered them to be false was that he now sought to disagree with some of the contents of what had been recorded. Moreover, we had concerns about the credibility of Mr Boayke generally as a witness, and in particular the extent to which the claimant might have helped him write his witness statement. We say this because there was some striking similarities between what, at various times, the claimant had written in messages and emails to the respondent and what Mr Boayke had put in his witness statement. By way of example at paragraph 15 of his witness statement he had written that “the vocabulary of Mr Major Kang and Mr team captain Cesar Escobar are 99.9% words and gestures obscene”. On 1 June 2023 the claimant had sent a WhatsApp message to the respondent in which she wrote, page 277, “99.9% of Major Kang’s attitude and behaviour are obscene words and gestures”. There were also significant similarities in parts of their witness statements. For example the claimant wrote at paragraph 24 of her statement: “31 January 2023 in that night were not washed boxes on the line”. Mr Boayke wrote, paragraph 7, “31 January 2023 in that night were washed the boxes on the line”. 12.118 We prefer the evidence of Mr Munday, which was corroborated by the interview notes, that during the course of the interview Mr Boakye told Mr Munday that he had never seen anyone do hand gestures or rude gestures towards the claimant and when asked whether he had ever witnessed a manager being disrespectful to the claimant he responded that he did not know because the claimant always had problems with people, page 748. The Law

[13]Section 109 of the Equality Act states; Liability of employers and principals (1) Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.

[14]Section 110 states that: (1) A person (A) contravenes this section if – (a) A is an employee or agent, (b) A does something which by virtue of section 109(1) or (2), is treated as having been done by A’s employer or principal (as the case may be), and (c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).

[15]Accordingly, it follows from this that in order for an individual or their employer to be liable for an act of discrimination/harassment that act must have been done in the course of the individual’s employment.

[16]In Forbes v LHR Airport Ltd

[2019] UKEAT 0174_18_2802

it was explained that the following propositions can be derived from the authorities in relation to what is meant by in the course of employment. The question of whether conduct is or is not in the course of employment within section 109 is a question of fact to be determined having regard to all the relevant circumstances. The words in the course of employment are to be understood in their ordinary and natural sense. Paragraph 26; the relevant factors might include whether the impugned act was done at work or outside of work, and if done outside of work whether there is nevertheless a sufficient nexus or connection with work such as to render it in the course of employment. Harassment

[17]Harassment is defined as follows: 26(1) A person(a) (A) harasses another

(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic and (b) The conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for her. (4) In deciding whether the conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;

[18]Accordingly, for Section 26(1) purposes there are three different elements to the statutory test to be considered. In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, a case bought under the RRA, it was explained that it is a healthy discipline for a tribunal specifically to address each of the three elements and to ensure that clear factual findings are made on each in relation to which an issue arises.(1) The unwanted conduct. Did the respondent engage in unwanted conduct?

(2) The purpose or effect of that conduct. Did the conduct in question either: (a) have the purpose or (b) have the effect of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for her ? (We will refer to (i) and (ii) as “the proscribed consequences”.)

(3) The relationship of the conduct to the protected characteristic. Was that conduct related to the claimant's protected characteristic?

[19]The law provides that if the tribunal concludes that there was unwanted conduct related to a protected characteristic which has the purpose of violating the dignity of the claimant, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, the conduct would, as a matter of law, constitute harassment. As to what is meant by purpose, in Dhaliwal this was equated with intent, paragraph 14.

[20]So far as effect cases are concerned, in the case of The Reverend Canon Pemberton v The Right Reverend Inwood

[2018] EWCA Civ 564

Lord Justice Underhill reformulated the guidance that he had given, whilst sitting in the EAT, some years previously in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, as to the approach to be taken by Tribunals to harassment claims. It is now as follows, paragraph 88; In order to decide whether any conduct falling within sub-paragraph (1) (a) has either of the proscribed effects under sub-paragraph (1) (b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4) (c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4) (b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then (even if the claimant did feel that her dignity was violated or an adverse environment created) it should not be found to have done so.

[21]Although Underhill LJ’s observations in Pemberton were strictly obiter they have been followed and applied by the EAT in Ahmed v The Cardinal Hume Academies

UKEAT/0196/18

[22]As Section 26(4)(b) makes clear, in judging whether the claimant’s perception was reasonable, context (the other circumstances of the case) is all important. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staffroom concerned. See for example Evans v Xactly

UKEAT/0128/18

[23]The conduct must be “related to” the relevant protected characteristic. This is a question of fact, Warby v Wunda Group Plc [2012] EqLR 536. This stands in stark contrast to the use of “because of” elsewhere in the Act. There is, therefore, no requirement for a causative link. It is enough if there is a connection or association with the prohibited ground. Often with harassment complaints the nature of the conduct complained of consists, for example, of overtly racial or sexual abuse. If such conduct is proved on the facts then it follows that the conduct will be related to the protected characteristic. Sometimes it will not be obvious from the face of the comment or conduct that it is related to a protected characteristic. In such a case, whilst the mental processes of the alleged harasser will be relevant to the question of whether the conduct complained of was related to the protected characteristic (see for example Bakkali v Greater Manchester Buses (South) Ltd

UKEAT/0176/17

) it is not determinative. The question of whether the conduct related to the protected characteristic has to be judged objectively.

[24]It is important to remember that the focus is on the alleged perpetrator’s conduct and whether that conduct, objectively, is related to the protected characteristic, Unite the Union v Nailard

[2016] IRLR 906

. It is only if the alleged perpetrator’s conduct is related to sex that he or she will be liable. It is not enough to ask whether some other, prior, conduct by someone else related to the protected characteristic, Unite. Harassment of a sexual nature: Section 26(2)

[25]According to the EHRC Code of Practice on Employment, paragraph 7.13, conduct of a sexual nature can cover verbal, non verbal, or physical conduct including unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.

[27]Victimisation is defined is section 27 of the Equality Act as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether express or not) that A or another person has contravened this Act; or

[28]The Equality Act definition requires a tribunal to make three findings: whether a protected act was done, and, if so, whether the claimant was subjected to a detriment; and, if so, whether that was because of doing the protected act. There is no requirement under the Equality Act for a comparator.

[29]The starting point is, therefore, that there must be a protected act (or the alleged discriminator must suspect that there may be a protected act). It is well established that in order to amount to a protected act it is not necessary that the legislation is mentioned in the complaint, but the complaint must be capable of amounting to an unlawful act under the Equality Act. See for example the case of Beneviste v Kingston University EAT 0393/05. In that case the protected acts were said to be complaints of sex and race discrimination. His Honour Judge Richardson explained the distinction between an act that is protected and an act that is not as follows. There is no need for the allegation to refer to the legislation, or to allege a contravention (of it) but the gravamen of the allegations must be such that, if the allegations were proved, the alleged act would be a contravention of the legislation. “If a woman says to her employer, "I am aggrieved with you for holding back my research and career development" her statement is not protected. If a woman says to her employer" I am aggrieved with you for holding back my research and career development because I am a woman” or “because you are favouring the men in the department over the women”, that statement would be protected even if there was no reference to the (as it was then) Sex Discrimination Act or to a contravention of it. There is also not a protected act in the true legal sense “merely by making a reference to a criticism, grievance or complaint without suggesting that the criticism, grievance or complaint was in some sense an allegation of discrimination or otherwise a contravention of the legislation.” Making a non specific allegation of discrimination, such as mentioning discrimination but in the context of being used as a scapegoat, is not enough, Durrani v London Borough of Ealing [2013] UKEAT_0454_2012_1004.

[30]Section 27 uses the term "because". This replaces the terminology of the predecessor legislation, which referred to the "grounds" for the act complained of. It is well-established that there is no change in the meaning, and it remains common to refer to the underlying issue as the "reason why" issue. In a case of the present kind establishing the reason why the act complained of was done requires an examination of what Lord Nicholls in his seminal speech in Nagarajan v London Regional Transport

1999 UKHL 36

referred to as "the mental processes" of the putative discriminator “Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology. To be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. “

[31]Harassment and victimisation claims are subject to the provisions of section 136 of the 2010 Act relating to the burden of proof, which read (so far as material): "(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[32]Consequently, and following a two stage approach by analogy to Igen, at stage 1 the tribunal must decide whether there are facts from which it could be concluded that the claimant was subjected to a detriment because of the protected act/that the unwanted conduct was related to sex. If so, the respondent has to provide a stage 2 explanation satisfying the tribunal that the protected act was no part of the reason for the treatment alleged/that the unwanted conduct was not related to sex. Although a two stage approach is envisaged by s.136 it is not obligatory. In some cases it may be more appropriate to focus on the reason why the employer treated the claimant as it did and if the reason demonstrates that the protected characteristic played no part whatever in the adverse treatment, the case fails. It was explained in Amnesty International v Ahmed

[2009] ICR 1450

that where explicit findings as to the reason for the claimant’s treatment can be made this renders the elaborations of the “Barton/Igen guidelines” otiose. “There would be fewer appeals to this tribunal in discrimination cases if more tribunals took this straightforward course and only resorted to the provisions of s54A ( or its cognates) where they felt unable to make positive findings on the evidence without its assistance.”

[33]The need for there to be something more than a difference in treatment and a difference in status to move the burden has, in the context of discrimination claims, has been emphasised repeatedly by the EAT, see for example Hammonds LLP & Ors v Mwitta

[2010] UKEAT 0026_10_0110

and Mr Justice Langstaff in BCC & Semilali v Millwood

UKEAT/0564/11

. This applies equally to victimisation claims, see for example the Court of Appeal in Greater Manchester Police v Bailey

[2017] EWCA 425

, paragraph 29, 'It is trite law that the burden of proof is not shifted simply by showing that the claimant has suffered a detriment and that he has a protected characteristic or has done a protected act: see Madarassy, per Mummery LJ at paras. 54-56 (pp. 878-9). Submissions

[34]Ms Urquhart, for the respondent, produced written submissions and supplemented these with oral submissions. We summarise the main points here. Ms Urquhart submitted that this was an unusual case, in that there was a stark divide between the parties on the facts, and many of the harassment claims would be resolved by way of a determination of those factual disputes. The question for us, she submitted, was whose account did we prefer? Ms Urquhart submitted that we ought to be cautious about drawing adverse inferences against the respondent in respect of any of the documentation produced by the claimant during the course of this hearing. Whilst it was acknowledged that no objection had been taken by the respondent to this documentation being submitted, witnesses had not had a proper opportunity to consider the documentation and it had not been properly tested, it was said.

[35]Whilst it was accepted that Mr Kang had filmed the claimant at work and had applied for a non-molestation order this was not for sexual purposes or related to sex but was done by Mr Kang in order to protect himself, it was submitted. The application for the non-molestation order, it was submitted, was not in any event in the course of employment. It was something that was done outside of work and arose out of matters which were outside of the workplace.

[36]In relation to the victimisation claims it was acknowledged that the claimant’s grievances of 22 May and 26 May 2023 were protected acts. It was submitted by the respondent that the other five asserted protected acts were not protected acts because the complaints in them did not relate to matters under the Equality Act.

[37]In any event, it was submitted, the reason why the asserted detriments took place was not because of the protected acts. The claimant was transferred to B shift, it was submitted, because the evidence showed that the claimant had carried out an act of misconduct on 9 January 2023 and was described by many colleagues as causing problems on D shift. In relation to the complaint about the incomplete SAR response, it was submitted that the response was complete, in that the respondent had provided all of the personal data that was available to it. In the alternative, it was submitted, this process was run by Dawn Sugden of the Global Data Privacy Team and there was no evidence that she was aware the May 2023 grievances. The failure to provide what was termed an independent translator, it was submitted, happened because Ms Mincu had translated previously at meetings with the claimant without issue and because it was the respondent’s policy to use in-house interpreters where possible. In relation to the last detriment, preventing the claimant communicating with D shift employees, it was pointed out that in evidence the claimant had said it was Mr Munday who had done this. It was submitted there was no evidence to support that factual assertion.

[38]In relation to time limits it was submitted that two of the victimisation claims against R1 were out of time and that all of the harassment claims were out of time insofar as they were against Mr Kang. It was accepted that the harassment claims set out at 4.2(k) – (n) above were in time against R1, but it was submitted the remaining harassment claims against R1 were out of time.

[39]The claimant handed in brief written submissions and supplemented these with brief oral submissions. Once again, we summarise the main points here. The claimant told us that there were documents missing from bundle. She said the missing documents were the attachments to an email which appeared 75 of the bundle. This was an email from the claimant to the tribunal dated 30 November 2023. In this email the claimant stated that she wished to complain that she was discriminated against on the grounds of age. We reminded the claimant that a judgment had been issued dismissing the age discrimination claim on withdrawal by the claimant in June 2024, and suggested that it would appear, therefore, that these documents were not relevant to the claimant’s existing claims. The claimant accepted this was so.

[40]The claimant told us that she had received a stage III disciplinary sanction in February 2023 which was a very severe sanction and she stated that when she filed her grievance she had asked for Mr Carl Oakes to be a witness at the appeal hearing which did not happen. After that hearing the notes of the meeting were not read to her and she did not sign them. She submitted that her grievances of 22 May and 26 May 2023 had been deliberately mistranslated by the respondent to cover up incidents of sexual harassment by Mr Kang. She complained that her grievance of 14 June 2023 was never translated by the respondent. She submitted that she was not allowed an independent interpreter at the meeting on 20 July 2023 and the interpreter who was provided exhausted the claimant and stressed her out during the hearing with intentional interruptions.

[41]She submitted that she had presented evidence to show that she was treated unfairly and the Equality Act was violated. All of the harassment by Mr Kang had caused her pain and suffering and trauma. All of her claims, the claimant submitted, were bought in time. In particular, she submitted, she only found out about the non-molestation order on 12 April 2024. Conclusions Harassment related to sex/of a sexual nature

[42]The majority of the complaints of harassment fail on the facts, on our findings. We have not found that Mr Kang made masturbatory gestures to the claimant on any of the dates alleged, nor have we found that he gave her the middle finger, paragraph 12.3 above.

[43]This was, in essence, the central dispute of fact between the parties. The claimant’s case was that Mr Kang had repeatedly made various obscene gestures to her at work. The respondents case was that Mr Kang had not made obscene gestures towards the claimant; it was the claimant who had used obscene gestures and language towards him at work and she had also harassed him by way of WhatsApp messages and various other conduct outside of work. We have resolved this dispute in the respondents favour for the following reasons: i) We found Mr Kang to be a more credible witness than the claimant. ii) Mr Kang produced WhatsApp messages sent from the claimant to him which were often very unpleasant and at times were threatening. These messages, in our view, undermined the claimant’s case that she was the victim of harassment at the hands of Mr Kang, and substantially supported the respondents case. iii) Mr Kang produced evidence which showed he had blocked the claimant repeatedly as a contact on his phone. iv) Although the claimant stated on several occasions, both before us and to the respondent at the time, that she had evidence in the form of Whatsapp messages, of the harassment of her, she did not produce any direct evidence of this. The claimant produced only a limited number of messages that formed part of exchanges/conversations between her and Mr Kang and these messages were for the most part (subject to one point, see below) about mundane matters. They also dated back to the time when the claimant and Mr Kang were in a relationship, or were from immediately after the break up. The claimant additionally produced WhatsApp messages which contained the claimant’s account of various alleged incidents which were harassing in nature involving Mr Kang. But these messages were written by the claimant herself, and sent to someone called Dvstina Q2, pages 923 – 928 and 217 - 222. There were no messages from Mr Kang to the claimant of this nature which were produced. This was, in our view, a significant difference between the quality of the evidence produced by the respondents to support Mr Kang’s evidence, and the quality of the evidence produced by the claimant to support her case. v) Mr Kang made repeated complaints, contemporaneously, to his employer about the claimant; 9 January 2023, paragraph 12.38, 23 April 2023, paragraph 12.45 and 26 June 2023, paragraph 12.62, for example. vi) It was not disputed that Mr Kang twice applied for non-molestation orders against the claimant. All of these factors, in our view, corroborated Mr Kang’s oral evidence.

[44]Before us, the claimant’s position was that the WhatsApp messages relied on by the respondents were not from her but had been written and sent by Mr Kang to himself. Whilst we acknowledge that such a scenario would not be totally out with the realms of what was possible it seemed to us to be highly unlikely that this had happened. It would, after all, have required a considerable degree of effort on Mr Kang’s part. He would have needed to buy or borrow another phone, set up a WhatsApp account on the phone and then message himself, sending often quite lengthy messages which would have taken quite some time to write. Additionally, Mr Kang had only retained a relatively small selection of messages over a relatively restricted period of time. Had he really gone to the effort of falsifying these messages it seemed to us that he would likely have done something of a better job - producing messages over a much more extended period of time, for example. The style in which the messages were written was consistent with the way that the claimant tended to express herself in writing; often quite repetitive, with very few full stops and lots of commas. Moreover, it was notable that the WhatsApp account from which the messages to Mr Kang were sent was buicatatiana350, see for example page 886. This was a strikingly similar account name to that which the claimant accepted to be her email account name; the account name for the claimant’s email was, buicatatiana350@gmail.com.

[45]The claimant also relied on the indecent image that Mr Kang had sent to her on 22 February 2022, shortly after the relationship had broken up, paragraph 12.3 above. We did not, however, draw an adverse inference against Mr Kang in relation to the central dispute of fact between the parties (whether Mr Kang was harassing the claimant or vice versa) either from the fact he sent this image or from the fact that he told us in evidence that he could not remember doing so. As to the sending of the image, it was sent at a time when there still appeared to be quite a close relationship between the claimant and Mr Kang, paragraph 12.2. The claimant did not suggest in evidence that the sending of this image was something that had upset her nor was there any upset evident from the WhatsApp exchange; to the contrary what was evident from the Whatsapp chat was that the conversation between the claimant and Mr Kang continued after the image had been sent as if nothing out of the ordinary had happened. The fact that Mr Kang told us he could not remember sending the image was, on the face of it, of more concern given that the message was obviously sent from his WhatsApp account. However, it requires to be remembered that the image was one of the additional documents produced by the claimant during the hearing. The very first time during the course of this litigation, so far as we know, that Mr Kang saw this document was when it was handed to him in cross examination. The whole purpose, of course, of having an agreed bundle is to avoid either the parties or witnesses being ambushed but that is precisely what happened in Mr Kang’s case. In such circumstances we were not prepared to draw an adverse inference against Mr Kang on the basis of him telling us that he could not remember sending this message.

[46]We did not, for the avoidance of doubt, consider that the fact that Mr Kang was unsuccessful in his applications for a non-molestation order in any way undermined his evidence before us because we accepted his evidence that the reason why they were not granted was because the court concluded there was not an imminent risk of harassment at the time the applications were considered, paragraphs 12.36 and 12.97. We accepted this evidence because it appeared to us to be consistent with the judgments that were in the bundle, see above. Of course, concluding that there is not an imminent risk of harassment is not the same as a conclusion that there has been no harassment.

[47]The remaining complaints of harassment made by the claimant were that on 21 March 2023 and 8 May 2023 Mr Kang filmed the claimant on his phone and on 2 February 2024 he applied for a non-molestation order.

[48]In relation to the filming, we have not found that Mr Kang filmed the claimant on 21 March 2023 and 8 May 2023 but we have found that he filmed her on five occasions at work, four of which were in November 2022 and one in July 2023, paragraph 12.44 above.

[49]To that extent, therefore, this complaint is factually accurate, on our findings. We concluded that the claimant had proved that this conduct was unwanted. We did not consider that the actions of Mr Kang could be characterised as conduct that had the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. We concluded, with some hesitation, that the claimant had proved that it had that effect on her, particularly given her own perspective. After all, shorn of any context, to film someone without their consent is on the face of it an intrusive thing to do. We did not consider, however, that the claimant had proved it was reasonable, on the facts of this case, for this conduct to be regarded as having the proscribed effect. In assessing whether it was reasonable for the conduct to have the proscribed effect context is all important. The context in which this conduct on the part of Mr Kang took place, on our findings, was that there had, by this point in time, been repeated instances of the claimant behaving in an inappropriate way towards him, paragraph 12.3 above. It was a defensive measure designed to stop that behaviour from happening, or at least record it, if it did, paragraph 12.44. The claimant ought reasonably to have known that this was the purpose behind the making of these videos, given the background just described. In that context the conduct is not an intrusive measure but a protective one and consequently, we concluded, it was not reasonable for the conduct to have had the proscribed effect.

[50]Additionally, and in any event, we concluded that there were no facts from which we could conclude that this conduct was related to sex and consequently we concluded that the burden of proof had not reversed. This claim, therefore, failed on this basis also. We reached this conclusion for the following reasons. The reason why the conduct happened is, as we have just set out, to try to stop the claimant’s behaviour and/or have a record of it. Accordingly, the conduct was not caused by the protected characteristic of sex. The concept of conduct "related to" a protected characteristic goes wider than the "reason why" but there still requires to be some connection between the conduct and the protected characteristic. Mr Kang’s conduct did not, on its face, have any association with sex. There was moreover, we concluded, no association to sex provided by the context in which the conduct took place. It is true, of course, that the context in which this conduct took place was that the relationship between Mr Kang and the claimant had broken down and, very likely, the reason for the claimant’s conduct towards Mr Kang was the ending of the relationship. That (the ending of the relationship) is something that is related to the claimant’s sex because, but for the claimant’s sex Mr Kang and the claimant would not have had a relationship. But, it is not the claimant’s conduct that must be related to sex in order for this claim to succeed. It is not enough that some other, prior, conduct by someone else related to the protected characteristic, Unite. In order for this claim to succeed it must be Mr Kang’s conduct towards the claimant that was related to sex and for these reasons we concluded that there was no such association. Harassment of a sexual nature

[51]The claimant asserted on a number of occasions before us that Mr Kang had taken these videos of her in order that he could then take his phone to the toilet and masturbate whilst watching the videos. Self-evidently, had we found that this was the reason why the videos were made this would have been conduct of a sexual nature. For the avoidance of doubt, however, we should make it absolutely clear that there was not a jot of evidence to support the claimant’s assertions in this regard. In any event, as we have just set out, on our findings and conclusions the reason why Mr Kang made these videos was not as the claimant asserted but because he wanted to try to stop the claimant’s behaviour and/or have a record of it, and that is not conduct of a sexual nature. The application for a non molestation order on 2 February 2024

[52]It is, of course, factually accurate that Mr Kang made an application for a non-molestation order against the claimant in February 2024. By virtue of sections 109 and 110 of the Equality Act, in order for either respondent to be liable in respect of this matter we would have to be satisfied that the application for the non-molestation order was made in the course of employment.

[53]We concluded that it was not something done in the course of employment for the following reasons. The process of applying for a nonmolestation order was, quite clearly, something that was done outside of work and was completely external to the workplace. Moreover, Mr Kang was acting in an entirely private capacity when making the application for the order. Nor could it be said that there was sufficient nexus or connection with work so as to render his actions in the course of employment. The only connection to work, it seemed to us, was that in the witness statement that Mr Kang produced for the purposes of the application he relied on some of the incidents that had happened at work. We did not conclude this was sufficient to render his actions in applying for the order as being in the course of his employment. Whilst the claimant might have chosen to use the workplace as a venue at which to harass Mr Kang, and the claimant’s actions in that regard were likely in the course of her employment, given that they happened on work premises during work time whilst the claimant was going about her activities as a warehouse operative, it is not the claimant’s activities that are under consideration but Mr Kang’s conduct in applying for the order. We concluded that there was no connection between the position in which Mr Kang was employed and/or the nature of his job and his application for a nonmolestation order. Mr Kang was manager of a team of warehouse operatives working at the Hams Hall distribution centre. There is no link at all, we concluded, between the nature of the activities he carried out in this role and an application for a non-molestation order under Section 46 of the Family Law Act 1996.

[54]This claim therefore fails on that basis. Even if we were wrong on that, however, and on the assumption that the claimant would have proved this was unwanted conduct that had the proscribed effect on her, we would have concluded that the claimant had not proved it was reasonable, on the facts of this case, for this conduct to be regarded as having the proscribed effect. That is because the context in which this conduct on the part of Mr Kang took place, on our findings, was that it happened after repeated instances of the claimant behaving in an inappropriate way towards him. In such circumstances it would not be reasonable to regard his conduct as having the proscribed effect.

[55]Nor would we have concluded that the conduct was related to sex. It is not enough that some other, prior, conduct by the claimant related to the protected characteristic, as we have just set out. In order for this claim to succeed it must be Mr Kang’s conduct towards the claimant that was related to sex. We concluded there was no such association. The reason why he made the application was to try to stop the behaviour occurring in the future, paragraph 12.96 above, and there was nothing on the evidence that was before us to suggest that the conduct was more broadly associated with sex in some way. Nor, for the avoidance of doubt, would we have concluded it was conduct of a sexual nature; there is nothing sexual at all about applying for a non molestation order.

[56]The victimisation claims were against the first respondent. The asserted protected acts were on 22 May 2023, 26 May 2023, 14 June 2023, 16 June 2023, 17 June 2023, 15 April 2024 and 20 May 2024.

[57]The first respondent conceded that the claimant did a protected act on 22 May 2023 and also on 26 May 2023, when she added three further pages to the 22 May grievance. The first respondent disputed that the claimant had done protected acts on any other dates.

[58]For the avoidance of doubt, we considered the respondent’s concession in relation to 22 May and 26 May to be correct. Looking at each of those grievances in turn, whilst the grievance of 22 May raised complaints about some matters that could not, as a matter of fact, be breaches of the Equality Act (for example the claimant’s complaint that products were being stolen from a warehouse) it also contained complaints about sexual harassment at work, which is, of course, a complaint that is capable of amounting to an unlawful act under the Equality Act. For example, one complaint made by the claimant in the 22 May grievance was that Mr Kang was making obscene gestures and making explicit references to masturbation, either at or in the presence of the claimant whilst she was at work.

[59]Three further pages were added by the claimant to this grievance on 26 May, as set out above. Once again, the additional pages contained many complaints that did not appear to be a complaint concerning a breach of the Equality Act; for example that Mr Kang had granted Ms Spiridion holiday, but had refused the claimant’s holiday request. Once again, however, these pages also contained complaints about sexual harassment, for example that Mr Kang had made obscene gestures to the claimant with bread whilst at work on 5 March 2023. 14 June 2023

[60]We concluded that the claimant had not proved that she did a protected act on 14 June 2023. On our findings, whilst the claimant did provide a written complaint to Mr Munday on this date she did not, within this document, make any complaint about an incident that, factually, was a complaint of discrimination, harassment or victimisation, nor did she mention these terms in this grievance, paragraph 12.59. Instead, she made complaints that were much more general than this: that Mr Kang was signing people in for work, that Mr Sekyere was not wearing his safety vest, that there was no respect on Shift D and work was not done conscientiously, things were stolen from the warehouse and that Mr Escobar and Ms Spiridion had “many scenes of love” in the presence of Mr Kang who kept quiet, paragraph 12.59 above. The claimant did, at the every end of this grievance write that she “was treated with signs obscene” but she did not expand on this or provide a single example of the type of conduct that she was referring to. In such circumstances that, we concluded, was too vague to amount to an assertion of breach of the Equality Act. 16 June 2023

[61]This was a WhatsApp message sent by the claimant to Mr Munday, see paragraph 12.60 above. We concluded that the claimant had not proved that this was a protected act because, once again, in this message the claimant does not set out a complaint which, factually, was capable of amounting to a breach of the Equality Act. In this message the claimant made complaint about matters such as theft and break times not being respected. She complained about the disciplinary decision that had been made by Mr Billingham. She did write that Mr Kang had humiliated her but she did not set out what he was alleged to have done. Humiliation is, of course, not the same as discrimination/harassment, it is a far broader concept. The claimant also at one point wrote that she had complained to Martin (Billingham) and asked him to get written statements from colleagues but was then given the silent treatment by him. However, that appeared to be a complaint about the quality of the disciplinary investigation, as she went on to say that Mr Billingham had said to her that she had to appeal to Mr Munday. In any event there was no suggestion in what the claimant had written that she was given the silent treatment by Mr Billingham because she had made a complaint of discrimination or because of her sex, or that it was related to sex, which was what would be required in order for the claimant in this context to have asserted facts that were capable of amounting to a breach of the Equality Act. 17 June 2023

[62]As we set out at paragraph 12.61 above, the claimant emailed Mr Munday on 17 June saying that 21,000 boxes had been washed on the shift and no test was done on them. The claimant has not proved this was a protected act. There is simply nothing about what was written that could be said to be a complaint of breach of the Equality Act. 15 April 2024

[63]On 15 April 2024 the claimant sent two emails to the first respondent’s Global Data Privacy Team complaining about how the first respondent had handled her DSAR request, paragraph 12.108 above. Asserted breaches of the Data Protection Act are not the same as a complaint of breach of the Equality Act. It follows from this that the claimant has not proved that these emails were a protected act. 20 May 2024

[64]The claimant sent two emails on 20 May 2024. She clarified in cross examination that the email that she asserted amounted to the protected act was the one sent at 2.03 PM. In this email, as set out at paragraph 12.113 above, the claimant wrote that she hoped the respondent did not forget to schedule a faceto-face meeting for her with an independent interpreter. That is all that was written and that, without more, we concluded was insufficient to amount to a protected act. It is no more than a request for a face-to-face meeting with an independent interpreter. Detriments The decision to transfer the claimant from shift D to shift B effective 21 July 2023

[65]This complaint is factually accurate, on our findings. The first decision to transfer the claimant was made by Mr Billingham; it was a disciplinary outcome issued to the claimant on 2 February 2023, paragraph 12.41 above. We did not understand there to be any complaint about this aspect of the decision. Nor, in reality, could there have been because Mr Billingham’s decision was made before any of the protected acts took place. However, Mr Munday upheld that decision at the disciplinary appeal by way of letter dated 21 July 2023, paragraph 12.69 above, and it was this decision that was the subject matter of the claimant’s complaint.

[66]Our focus, therefore, is on the reason why Mr Munday upheld Mr Billingham’s original disciplinary decision to move the claimant. Mr Munday knew of the protected act of 22 May; it was sent directly to him and translated for him from Romanian by the respondent, paragraph 12.50 above. We have inferred and found that he also knew of the additional complaints made on 26 May because the grievance was addressed to him and was translated by the respondent from Romanian into English on 30 May 2023, see paragraph 12.58 above.

[67]We were prepared to assume that the burden of proof had moved across to the respondent and we concluded that the respondent had proved that the reason why Mr Munday upheld Mr Billingham’s decision to move the claimant was because: 1) he concluded that the evidence showed that the claimant had carried out the acts of misconduct with which she had been charged and 2) he concluded that the claimant was causing problems for colleagues on the D shift. This is a complete explanation that is in no sense whatsoever because of the protected acts.

[68]We reached that conclusion for the following reasons. The claimant did not, before us, seek to challenge this element of Mr Munday’s evidence and so we were left to weigh up what was effectively uncontested evidence from Mr Munday about his reasons for making the decision that he did. As to his conclusion that the claimant was guilty of the conduct alleged, we accepted his evidence because(i) it was clear from the notes of the disciplinary appeal interview with the claimant that she had, in fact, at least in part admitted the conduct in question and

(ii) because it was evident from the disciplinary paperwork that Mr Munday had before him that Mr Oakes had also corroborated that this incident had occurred. In such circumstances, his conclusion that the conduct in question had occurred was an unsurprising one.

[69]We accepted that Mr Munday had also concluded that the claimant was causing problems on shift because, by the time Mr Munday made his appeal decision, there was clear evidence before him that members of the shift were reporting that it was the claimant who was causing problems. This evidence had, in fact, come from the grievance investigation that was ongoing but of course Mr Munday was in charge of that at this point; he was not relieved of this responsibility until after 10 August 2023, paragraph 12.83 above. Hayden Long had stated that the claimant was always trying to make trouble for Mr Kang and had a folder of stuff which she tried to show everyone, paragraph 12.63. He said that when he asked her why she had a problem with Mr Kang she had no answer but she went on every day to the point it was becoming very annoying. He stated she was showing court documents to anyone who would look just to make Mr Kang look bad. He described her as going on constantly every night. Mr Sekyere described the claimant as causing problems all the time and spreading lies about people. He described her as talking with disrespect to both Mr Kang and Cesar Escobar and said that she seemed to have a problem with other people, paragraph 12.63. Paul Morkeh described the claimant as trying to cause problems on the shift between staff by telling lies. He described her as causing arguments on a daily basis, paragraph 12.63. Whilst from a procedural perspective Mr Munday can, perhaps, be criticised for taking into account evidence gained during the grievance investigation for the purposes of making his decision on the disciplinary appeal, it is beyond doubt that by the time Mr Munday made his decision he had clear evidence that the claimant was causing issues on shift. For these reasons we concluded that the first respondent had proved their explanation, which was an explanation that was in no sense whatsoever because of the protected acts. Failing to provide the claimant with a comprehensive DSAR response

[70]This claim was the subject of factual dispute between the parties – before us the first respondent’s position was that the claimant was provided with copies of all documentation that existed, the claimant’s position was that what was sent to her was incomplete. On our findings, this complaint is factually accurate, paragraph 12.105 above. Whilst the claimant was provided with a substantial amount of information by the respondent this only dated from 23 August 2023. No documents were provided to the claimant for the period 1 January 2022 - 23 August 2023, and we have found as a fact that this meant that the documentation provided to the claimant was incomplete.

[71]We made this finding of fact because it was obvious, in our view, given the number of issues that had arisen about the claimant over this time, that there would have been documentation created about her during this period of 20 months. To the extent that examples are needed there were some, in actual fact, from our bundle. By way of example, as set out at paragraph 12.45 above, on 23 April 2023 Mr Kang sent an email to Mr Munday with the subject matter “Christiana Buica” and in the email that followed he made various complaints about the claimant. That is personal data that should have been included within the claimant’s DSAR response.

[72]The claimant’s DSAR request was handled by the first respondent’s Global Data Privacy Team, in particular Ms Sugden, but also with some input and involvement from Ms De Vries of HR. However, Ms De Vries, on our findings, was not involved with either searching for the claimant’s data or sending the data to the claimant, this was the Global Data Privacy Team, paragraph 12.104 above. Ms De Vries’ only involvement in terms of the search was setting the boundaries of the search to the email boxes of Mr Munday, Mr Kang and Mr Billingham, paragraph 12.104 above. That is something that was agreed with the claimant, and was not part of the complaint that was before us. Accordingly, this complaint is against Ms Sugden and the Global Data Privacy team.

[73]We concluded that the claimant had not proved facts from which we could conclude that the first respondent provided an incomplete response to the claimant’s DSAR request because of the claimant’s protected acts of 22 and 26 May 2023. We did so for the following reasons. Firstly, there was absolutely no evidence before us to suggest that any member of the Global Data Privacy team actually had knowledge of the claimant’s two protected acts. The team did not work at the same site as the claimant, paragraph 12.100, and there was nothing before us to suggest that they had been told of the protected acts. Clearly, if they did not know of the protected acts they could not have been influenced by them. Additionally, the search process was wholly automated, paragraph 12.100. Of course, automated processes may be subject to human intervention but in this case the unchallenged evidence of the respondent was that the search done for the claimant was wholly automated and an automated process cannot have been influenced by the protected acts. Lastly, the protected acts took place in May 2023. The response to the DSAR request was a considerable period of time later, in April 2024, paragraph 12.105. There is nothing about the timescales, therefore, which suggests that the protected acts may have influenced the handling of the DSAR response.

[74]In any event, even had the burden moved across to the respondent, it seemed to us on the evidence that the most likely explanation for the DSAR response being incomplete was that the respondent disclosed what they found through the search process at the time, but that the automated search results simply failed to pick up these earlier emails. That is a complete explanation that is in no sense whatsoever because of the protected acts. We would have reached that conclusion for the following reasons. Firstly, whilst the information provided was incomplete there was, in fact, a vast amount of information provided to the claimant by the respondent - some 1,100 pages, paragraph 12.105. That was not, in our view, indicative of the respondent attempting to withhold information from the claimant because of the two protected acts. Secondly, when it became apparent to the Global Data Privacy team that their initial search was carried out against a misspelling of the claimant’s name, the whole search was re-run even though the original search had still produced significant amounts of documentation, paragraph 12.107. This was done without the claimant’s knowledge and was a decision of the Global Data Privacy team alone. That, in our view, was strong evidence that the Global Data Privacy team was endeavouring to locate and provide to the claimant all available information. Failing to provide an independent translator for the meeting on 23 May 2024

[75]It was clarified by the claimant that what was meant by this complaint was that the respondent had failed to provide an external translator (i.e. external to the respondent) for the meeting of 23 May 2024. This complaint is factually accurate; on our findings the translator who was provided for this meeting was Ms Mincu who, whilst not based at the site where the claimant worked, was an employee of the respondent, see paragraph 12.81 above. The decision maker in terms of who would translate at the meeting was Ms De Vries. Ms De Vries, of course, knew of the protected acts.

[76]We did not conclude that the claimant had proved facts from which we could conclude that Ms De Vries decided to use Ms Mincu as an interpreter at this meeting because of the protected acts. After all, by this point in time, the protected acts had taken place a year previously and there had been much water under the bridge in the meantime, with an incredible volume of complaints from the claimant about matters which were not protected acts. This made it unlikely, in our view, that the protected acts would have taken on any particular significance in the respondent’s mind. In any event, even had the burden of proof moved across to the respondent, we would have concluded that the reason why Ms De Vries arranged for Ms Mincu to interpret at this meeting was because the respondent’s usual policy and approach was that employees with relevant language skills would be used to interpret at internal meetings, paragraph 12.114 above, and because Ms Mincu had been used to interpret at two of the meetings with the claimant previously without objection from the claimant. These meetings were; the meeting on 10 August 2023 with Mr Munday and Ms De Vries, paragraph 12.81 above and the appeal grievance meeting with Mr Pope on 7 September 2023, paragraph 12.94 above. This is a complete explanation that is in no sense whatsoever because of the protected acts. Management (Mark Simmons) prevented the claimant from communicating with D shift employees.

[77]This complaint was only partially factually accurate, on our findings. It was not Mr Simmons who prevented the claimant from communicating with D shift employees; the person who issued that instruction to the claimant was Ms De Vries, as part of the grievance outcome given to the claimant on 23 August 2023, paragraph 12.90 above. The instruction issued was in two parts; firstly, the claimant was explicitly told not to contact various specific individuals namely; colleagues on shift D (including Mr Kang), John Munday, Kathryn Langford from HR and Mark Simmons, Senior Vice President Human Resources. Secondly, she was told that she should only contact either Ms De Vries, or in her absence her colleague Ms Murray, going forward, paragraph 12.90.

[78]We concluded that the claimant had not proved facts from which we could conclude that this instruction was issued to her because of her two protected acts. However, we were prepared to assume that the burden of proof had reversed and we concluded that the first respondent had proved that the reason why this instruction was issued was because the number of messages/complaints that the respondent was receiving from the claimant about people on shift D was becoming overwhelming and they wanted the claimant to use a single, designated point of contact going forwards to try to help them manage the volume of complaints.

[79]After all, by this point in time, the volume and frequency of the claimant’s complaints/emails was out of control and she was using various different points of contact to make repeated complaints;• 6 emails on 23-24 July to Mr Munday, paragraph 12.73,

• 10 emails to Mr Munday on 26 July, paragraph 12.73,

• 3 emails to Mr Munday on 28 July, paragraph 12.73,

• 7 emails to Kathryn Langford on 3 August, paragraph 12.79,

• 20 emails to the Ethics Hotline on 3 August, paragraph 12.79,

• 1 email to the Ethics Hotline on 8 August, paragraph 12.79,

• 9 emails to the HR support team on 9 August, paragraph 12.79,

• A further 35 emails to the HR support team on 9 August, paragraph 12.80,

• 18 emails to the HR Support team on 10 August, paragraph 12.80,

• 6 emails to Mr Munday on 22 August, paragraph 12.83.

• 3 emails to Mr Kang, Mr Munday and Ms Langford on 23 August, paragraph 12.83, and

• 3 emails to Mr Simmons on 24 August, paragraph 12.83. In such circumstances it seemed to us to be unsurprising that the respondent took action to try to ensure that all future complaints from the claimant about shift D were submitted via the same channel. This was nothing to do with the claimant’s two protected acts in May 2023 but everything to do with the sheer volume of complaints that the claimant had started to make from late July 2024 onwards to many different individuals about people on shift D (none of which complaints, of course, were relied on by the claimant as being protected acts). That is a complete explanation that is in no sense whatsoever because of the two protected acts.

[80]For these reasons the claimant’s claims all fail and are dismissed.