Ms H BharadiaMs H Higgins (instructed by Counsel) for respondentDate 15 March 2019
JUDGMENT
The claimant was not unfairly dismissed nor unlawfully discriminated against or harassed. Accordingly, all her claims fail and are dismissed.
REASONS
[1]In this matter the claimant complains of unfair dismissal, direct sex discrimination and harassment related to sex. Following a preliminary hearing the claimant was ordered to set out particulars of her claims under the Equality Act 2010 ("the 2010 Act") in a table. The document that she provided in response was before the Tribunal. Whilst it goes some way to identifying her claims by way of setting out eight separate issues, it fails to specify the factual basis behind some generalised allegations. The claimant’s witness statement also, in respect of many of the historical allegations, had a lack of specificity.[2]The parties had however agreed a list of issues and it is clear that the claims can be summarised as follows:a. Was the claimant’s dismissal for gross misconduct fair?b. Was the claimant suspended and/or dismissed because of her sex? In considering that question the claimant compares herself to her former colleague Mr Sepahi against whom she says five allegations capable of being gross misconduct had been raised or identified and he was not suspended or disciplined.c. Did Mr Sepahi sexually harass the claimant over the period 2010 through to a last incident on 4 October 2017? Were these claims submitted out of time and if so should time be extended?
Evidence
[3]We heard evidence from the claimant in person. For the respondent we heard from:a. Mr Sepahi, science technician;b. Mr L Hampton, director of science;c. Ms M-J Taylor, governor;d. Mr J Toop, former chair of governors.[4]Perhaps not surprisingly, it was a feature of the evidence that there were very different accounts from the claimant and Mr Sepahi as to events over the period during which they worked together. Both were cross examined robustly. Having considered their evidence and demeanour we formed an overall view that the claimant was more credible in her recollection of events and her stated perception of their relationship was genuine. In contrast Mr Sepahi was, at times, unconvincing. It remained the case however that in some significant areas the claimant’s evidence lacked detail. In such circumstances contemporaneous documents can be very helpful and there were a number of emails from the relevant time period that helped us form a view as to what happened. The relevant parts of those emails are therefore set out below in some detail.
Relevant Law
[5]Unfair dismissal: By section 94 of the Employment Rights Act 1996 (“the 1996 Act”) an employee has the right not to be unfairly dismissed by his or her employer.[6]In this case the claimant’s dismissal was admitted by the respondent and accordingly it is for the respondent to establish that the reason for the dismissal was a potentially fair one as required by section 98(1) and (2) of the 1996 Act. If the respondent establishes that then it is for the Tribunal to determine whether the dismissal was fair in all the circumstances (including the size and administrative resources of the respondent business) having regard to equity and the substantial merits of the case (section 98(4)). In applying this test the burden of proof is neutral.[7]In this case the respondent relies upon conduct and therefore the Tribunal must consider whether the respondent acted reasonably in treating the claimant’s conduct as sufficient reason for dismissing her.[8]In that exercise, the Tribunal is guided by the principles set out in British Home Stores Ltd v Burchell [1978] IRLR 379, affirmed by the Court of Appeal in Post Office v Foley [2000] ICR 1283. Accordingly the Tribunal will consider whether the respondent by the standards of a reasonable employer:a. genuinely believed the claimant was guilty of misconduct;b. had reasonable grounds on which to sustain that belief; andc. at the stage at which it formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in the circumstances of the case. Any evidence that emerges during the course of any internal appeal against dismissal will be relevant in that exercise but otherwise material not before the employer at the relevant time is irrelevant.[9]The approach in Burchell is modified to the extent that even if the respondent fails to establish one or more of those three limbs the Tribunal must still ask itself if the dismissal fell within the range of reasonable responses referred to below (Boys and Girls Welfare Society v Macdonald 1997 ICR 693).[10]Further, the Tribunal must assess - again by the standards of a reasonable employer - whether the respondent’s decision to dismiss was within the band of reasonable responses to the claimant’s conduct which a reasonable employer could adopt (Iceland Frozen Foods v Jones [1983] ICR 17 and Graham v S of S for Work & Pensions [2012] IRLR 759, CA). The band of reasonable responses test also applies to whether the respondent’s investigation was reasonable (Sainsbury’s Supermarkets v Hitt [2003] IRLR 23). One factor to consider is whether the respondent has acted inconsistently in its treatment of employees but only where those employees are in “truly parallel circumstances”. The EAT emphasised in Hadjioannous v Coral Casinos Ltd ([1981] IRLR 352) that flexibility must be retained and employers are not to be encouraged to think that a tariff approach to misconduct is appropriate.[11]We are also mindful of the EAT decision of Burdett v Aviva Employment Services Ltd (EAT0439/13) which confirms that even if a Tribunal has concluded that the employer was entitled to regard an employee as having committed an act of gross misconduct, that will not be determinative of the question of fairness. The answer in most cases might be that it was, but that cannot simply be assumed; the Tribunal still needs to consider whether dismissal was within the range of reasonable responses.[12]When considering the procedure used by the respondent, the Tribunal’s task is to consider the fairness of the whole of the disciplinary process. Any deficiencies in the process will be considered as part of the determination of whether the overall process was fair (OCS Group Ltd v Taylor [2006] ICR 1602). The Tribunal will also take account of the ACAS code of practice on disciplinary and grievance procedures.[13]In coming to these decisions, the Tribunal must not substitute its own view for that of the respondent but to consider the respondent’s decision and whether it acted reasonably by the standards of a reasonable employer.[14]Direct discrimination: Section 13 of the 2010 Act provides that a person discriminates against another if, because of a protected characteristic, he treats that person less favourably than he treats or would treat others. Both sex and race (including national origins) are protected characteristics.[15]To answer whether treatment was “because of” the protected characteristic requires the Tribunal to consider the reason why the claimant was treated as he/she was. The Equality and Human Rights Commission Code of Practice states that whilst the protected characteristic needs to be a cause of the less favourable treatment it does not need to be the only or even the main cause.[16]It is a matter for the Tribunal to determine what amounts to less favourable treatment to be interpreted in a common sense way and based on what a reasonable person might find to be detrimental.[17]Section 23 of the 2010 Act refers to comparators and says that there must be no material difference between the circumstances relating to each case. The relevant “circumstances” are those factors which the employer has taken into account when treating the claimant as it did with the exception of the protected characteristic (Shamoon v Chief Constable RUC [2003] IRLR 285).[18]Harassment: Section 26 of the 2010 Act provides that A harasses B if A engages in unwanted conduct related to a relevant protected characteristic and that conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. When deciding whether conduct has had that effect subsection 4 requires us to take into account the perception of B, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[19]Conduct is ‘related’ to a protected characteristic where it is by reason of that characteristic or because of the form it takes. This requires a consideration of the mental processes of the putative harasser (Henderson v GMB Union [2017] IRLR 214, CA).[20]Two authorities give helpful guidance in applying these provisions: Richmond Pharmacology Ltd v Dhaliwal ([2009] IRLR 336) and Land Registry v Grant ([2011] IRLR 748) where Elias LJ said: “Where harassment results from the effect of the conduct, that effect must actually be achieved. However, the question whether conduct has had that adverse effect is an objective one – it must reasonably be considered to have that effect – although the victim's perception of the effect is a relevant factor for the tribunal to consider. In that regard, when assessing the effect of a remark, the context in which it is given is always highly material. Moreover, tribunals must not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive environment”. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”`[21]An employer is responsible for anything done by an employee in the course of their employment (section 109(1) of the 2010 Act) subject to a statutory defence which is not argued by the respondent in this case.[22]Burden of proof in discrimination claims: section 136 of the 2010 Act says that if there are facts from which the Tribunal could decide, in the absence of any other explanation, that A contravened the provision concerned, the Tribunal must hold that the contravention occurred. That does not apply however if A shows that A did not contravene the provision.[23]It is generally recognised that it is unusual for there to be clear evidence of discrimination and that the Tribunal should expect to consider matters in accordance with the relevant provisions in respect of the burden of proof and the guidance in respect thereof set out in Igen v Wong and others ([2005] IRLR 258) confirmed by the Court of Appeal in Madarassy v Nomura International plc ([2007] IRLR 246). In the latter case it was also confirmed, albeit when applying the pre-Equality Act wording, that a simple difference in protected characteristic and a difference in treatment is not enough in itself to shift the burden of proof; something more is needed (although that something more need not be a great deal – Deman v CEHR [2010] EWCA Civ 1279). It is important in assessing these matters that the totality of the evidence is considered.[24]At the first stage the Tribunal has to make findings of primary fact. It is for the claimant to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. At this stage the outcome will usually depend on what inferences it is proper to draw from those primary facts. The Court of Appeal reminded Tribunals that it is important to note the word “could” in respect of the test. At this stage the Tribunal does not have to reach a definitive determination. The Tribunal must assume that there is no adequate explanation for those facts. It is appropriate to make findings based on the evidence from both the claimant and the respondent, save for any evidence that would constitute evidence of an explanation for the treatment.[25]If the Tribunal is satisfied that there is evidence to suggest that there was an act of unlawful discrimination, the burden of proof shifts to the respondent. To discharge that burden the respondent must prove, on the balance of probabilities, that it did not commit such an act. Case law suggests that the Tribunal is entitled to expect cogent evidence to discharge that burden because the facts necessary to prove an explanation will normally be in the possession of the respondent.[26]Time Limits: Any complaint of discrimination may not be brought after the end of the period of three months starting with the date of the act complained of or such other period as the Tribunal thinks just and equitable (section 123 of the 2010 Act). The burden is on the claimant to convince the Tribunal that that discretion should be exercised (Robertson v Bexley Community Centre [2003] IRLR 434 and O’Brien v Department for Constitutional Affairs [2009] IRLR 294 CA). The Tribunal has a very wide discretion in determining whether to do so. It is entitled to consider anything that it considers relevant subject to the principle that time limits are exercised strictly in employment cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so.[27]The Court of Appeal has also confirmed that when considering this discretion, Tribunals should adopt as a checklist the factors mentioned at section 33 of the Limitation Act 1980 (Chief Constable of Lincolnshire Police v Caston ([2010] IRLR 327). Namely the balance of prejudice together with all the circumstances of the case including:a. the length of and reasons for the delay;b. the extent to which the cogency of the evidence is likely to be affected by the delay;c. the extent to which the party sued had cooperated with any requests for information;d. the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action; ande. the steps taken by the claimant to obtain professional advice once he knew of the possibility of taking action.[28]Conduct extending over a period is to be treated as done at the end of that period (section 123(3)(a)). When deciding if there is such conduct, however, Hendricks v Commissioner of Police for the Metropolis ([2002] EWCA Civ 1686) confirms that the correct focus is on the substance of the complaint that the respondent is responsible for the state of affairs leading to the alleged discrimination rather than too literal approach in analysing whether a regime, rule, practice or principle exists on specific facts. This approach has been confirmed in the context of the 2010 Act in Rodrigues v Co-operative Group, EAT July 12.
Findings of Fact
[29]Having assessed all the evidence, both oral and written, we find on the balance of probabilities the following to be the relevant facts.[30]The respondent is a school’s trust of which St Mark’s C of E Academy, a large, racially diverse South London school, forms a part.[31]It had a number of employment policies of the sort one expects to see in a large well organised employer (and compliant with the ACAS code of practice) in place at the time of the claimant’s dismissal. These included:a. dignity at work;b. code of conduct; andc. discipline, conduct and grievance.[32]The dignity at work policy provides what to do if an employee has been bullied or harassed setting out first an informal procedure and, where that is inappropriate or has been unsuccessful, a formal procedure of raising the complaint in writing with the Principal. It goes on to say: ‘As a general principle, the decision to progress a complaint rests with you. However, as your employer we have a duty to protect all employees and we may pursue a complaint independently if we consider it is appropriate to do so in all the circumstances.’[33]The discipline policy, in relation to suspension, states that if it is known that the employee is a trade union member, all reasonable steps should be taken to notify the union prior to suspension and reasonable efforts must be made to enable a representative to accompany the individual at a suspension meeting. Further that suspensions must be reviewed after 20 working days and thereafter every 20 working days. A written explanation must be provided for the continuation of the suspension if the employee or their representative requests it.[34]The policy also sets out the requirements of any disciplinary investigation stating, among other things, that the investigating officer should be as objective as possible and not prejudge the issues. Further that it is important that the investigating officer is impartial and has not had any previous involvement or be implicated in the case. The disciplinary decision should be communicated as soon as is reasonably practicable.[35]It also provides that dismissal is an appropriate sanction for very serious misconduct and, other than for gross misconduct, will be with notice. A nonexhaustive list of examples of gross misconduct is set out which includes serious failure to comply with the school’s equality and diversity policies (including verbal abuse), any evidence of bullying or harassment, and serious failure to comply with the code of conduct.[36]The grievance policy states that grievances can arise from a variety of sources and sets out, again, firstly an informal and then a formal procedure to be invoked when the first stage has failed or is inappropriate. The formal stage requires the employee to submit a formal written notice of the grievance to the chair of governors with a copy to the headteacher including full details.[37]The claimant commenced employment at St Mark’s, which became an academy and part of the respondent in November 2014, on 4 January 2010 as a science technician working four hours per day (9:30am - 2:30pm). Throughout her employment she was one of two science technicians, the other being Mr Sepahi who was already working at the respondent when she joined. They both reported to Ms J Friedlos, lead science technician. The main role of the science technicians was to prepare experiments and deliver equipment to the classrooms. As Mr Sepahi was full-time and the claimant part-time, part of his role was to collect all equipment from the classrooms at the end of each school day and return them to the relevant preparation room.[38]Almost immediately upon commencing employment, the claimant raised concerns with Ms Friedlos about Mr Sepahi’s behaviour towards her. Specifically that he began touching her hair and hands in an inappropriate way and made unwelcome comments about her hair. She did not put this complaint in writing. Mr Sepahi’s evidence was that he had not stroked her hand or touched her in any inappropriate way. Rather, he said, they would sometimes bump into one another when they were working in a confined space. Also, that the claimant had told him that she had allergies on her hands and in the context of that on a few occasions she asked him to touch her hand to feel the rash which he did. He accepts, however, that he recalls Ms Friedlos telling him not to get too close to the claimant as she ‘gets upset’.[39]Ms Friedlos sent an email on 11 March 2010 to Ms Mir, then head of science, in which she stated that the claimant had told her, in the presence of Mr Sepahi, that he had again behaved inappropriately. She also referred to speaking to Mr Sepahi the previous week about not touching the claimant or making remarks which she was uncomfortable with. She concluded: ‘I think Mohammed [Mr Sepahi] was still not aware that he was causing offense so I hope that now he has been left in no doubt of the need to avoid any further incidents that no further occasions of this will arise’[40]In assessing these different accounts, we found the claimant’s evidence to be detailed, consistent and credible. Ms Friedlos’s email of 11 March 2010, although not express, implicitly supports the claimant’s account. We find that Mr Sepahi did inappropriately touching the claimant’s hair and hands in March 2010 as well as making inappropriate remarks and this behaviour was addressed by Ms Friedlos twice in that month. There is no evidence that it continued thereafter.[41]The claimant says that between January 2010 and July 2012 she faced a barrage of harassment and discrimination from Mr Sepahi.[42]The documentary evidence from this period shows that in July 2012 Ms Friedlos wrote a statement for Ms Mir after Ms Mir had sent the claimant home as she was very distressed. Ms Friedlos referred to the working relationship between Mr Sepahi and the claimant as deteriorating significantly during the past year and that it had become detrimental to the efficient running of the team. She said: ‘Whereas Zoe is always very supportive of Mohammad in assisting him with his work, he will never reciprocate unless so instructed by me or a member of the teaching staff. It is essential that he agrees to assist Zoe should she request it, in the same way in which he would assist any other member of staff. Unfortunately, at present his attitude problem relating to perceived issues of status prevents his operating as an effective team member. I regret to say that it is also my observation that Mohammed’s manner towards Zoe at the personal level is unacceptable. To deliver the level of practical support required by teaching staff requires that all technicians have a flexible and co-operative approach to their work and at present the attitude of Mohammad to Zoe is preventing the teamwork that is needed.’[43]Following this, arrangements were made for the claimant and Mr Sepahi to work separately. Ms Friedlos (who by then was in a wheelchair due to her ill-health) continued to work in the main preparation room on the ground floor, the claimant had her own room on the second floor and Mr Sepahi had one on the third floor.[44]On 18 October 2012 the claimant went home from work early and in some distress. Mr Cahill, vice principal, emailed her the following day reminding her of the need to get permission to leave during the school day and said they would be meeting with all technicians the following week to clarify issues and resolve disagreement. The claimant replied that she had gone home because she was so upset that she could not continue and said: ‘I really do think that you need to speak to Jenny [Ms Friedlos] regarding mine and Mohammed’s issues. This is not just a one-off incident. It would be better all round if you knew the full picture before Mondays meeting.’[45]Later that evening Ms Friedlos emailed Mr Cahill and said: ‘There is a very long history, beginning almost with Zoe’s arrival. There have been a number of meetings… over the years. I don’t know what triggered the current issue, but in general things have been exacerbated by three main factors: 1. Mohammed is not willing to accept that Zoe is of equal value to the team as himself as he finds it hard to recognise that Zoe brings personal skills that surpass either mine or his in some areas even if she has been a technician for less time that either of us. 2. Zoe reacts to real or perceived slight in a manner that makes it very difficult to resolve issues before they have become intolerable. 3. Mohammed does not realise how personally offensive some of the remarks he makes can be and Zoe is very quick to take offence.’[46]Ms Friedlos again emailed Mr Cahill on 21 October 2012 and attached her July 2012 statement for Ms Mir referred to above. She said that the last time Ms Mir had dealt with an issue between Mr Sepahi and the claimant was in July. She said that to resolve matters Ms Mir had met with them separately and that Mr Sepahi had apologised to the claimant and as far as possible she had arranged for them not to work together.[47]On 26 January 2013 Ms Friedlos sent an email to Mr Cahill, headed ‘technician meeting’. In that email she said: ‘The working relationship between Mohammed and Zoe has yet again broken down (resulting in a protracted shouting match on Friday) to a degree that is detrimental… This is largely due to the manner in which Mohammad speaks and acts towards other technicians. I assume that he does not realise how offensive he is being. He has, in my opinion been rude and deliberately obstructive to both Michael [Furlong] and Zoe in the few weeks that I have been back. In the past, a technician of fifteen years’ experience who is no longer here (Louise Bubb) found it impossible to work with him because of his poor attitude towards her. Whilst blame cannot lie entirely with Mohammed, I feel that in large part he is responsible for the development of the situation we are in.’ She then set out some proposed solutions to the situation by reorganising the team although she recognised that this would not provide the best service to teaching staff and students. She went on to say: ‘There is a real issue with the fact that Zoe does the same job as Mohammed in fewer hours on a lower scale… That is a great waste of Zoe’s considerable talent and skill level. She is, and will probably always be a more capable technician than Mohammed. … I would find it most helpful for Rita [Thompson] and yourself to take a decision on how you want technicians to be deployed and I will implement your judgement.’[48]Presumably in response to this email Mr Cahill had a meeting with Mr Sepahi on 29 January in which he was informed of concerns regarding his working relationship with colleagues in the team. On 4 February 2013 Mr Cahill wrote to Mr Sepahi setting out those concerns and that he could at times seem dismissive and impolite. He was informed that his conduct was an ongoing cause for concern and failure to improve the communication with colleagues would lead to a formal disciplinary warning. Five specific guidelines were set out for Mr Sepahi including to follow instructions from Ms Friedlos in a polite and approachable manner, communicate with his colleagues, the claimant and Mr Furlong, in a polite and positive manner and ask permission before seeking equipment from areas of the prep rooms managed by his colleagues. This was in effect a written informal warning.[49]The next recorded incident was on 19 September 2016. The claimant had burned her hand and went to Ms Friedlos’s preparation room to run her hand under cold water and ended up putting it into a kettle of cold water. She telephoned Mr Sepahi as he was the first aider for the science department and asked him to bring down some burn cream. Whilst all three were in the room, a teacher came in and asked for a dustpan and brush as there was some broken glass in his classroom which needed to be cleaned up. Ms Friedlos could not deal with the incident as she was in a wheelchair, the claimant could not deal with it as she was attending to her burned hand and therefore logically Mr Sepahi would deal with it. An argument developed as to who should deal with the issue. The claimant’s evidence was that she was urging Ms Friedlos to tell Mr Sepahi to go and clear up the glass and that he flatly refused and that in the end the teacher dealt with it.[50]Mr Sepahi’s evidence was that he does not remember the incident but the claimant’s allegation that he flatly refused to help was completely untrue as he always helps and is familiar with health and safety requirements. There is no documentary evidence of Ms Friedlos’s account of events that day and she was not here to tell us.[51]The argument escalated and the claimant was shouting. She got very angry and upset and went to see Mr Hampton who had very recently joined the Academy as director of science (he had been working 1 day per week since May but full time since start of the autumn term). Mr Hampton at that time was working very long hours in an extremely challenging role. He asked the claimant to set out her concerns in writing which she did by sending him an email on the next day, 20 September.[52]It is necessary to set out significant parts of that lengthy email (which perhaps unfortunately was typed all in capital letters making it difficult to read).[53]The first part sets out the claimant’s account of what happened as follows: ‘I had burned my hand in my room on the hot water… I went to Jenny’s prep room run my hand under her cold tap. I then submerged my hand into a kettle of cold water. I had phoned Mohammed as he is the first aid person in the science dept if he could please bring me down some burn cream. Mohammed was in Jenny’s prep room when AWT came into the prep room and asked Jenny for a dustpan and brush as a student had dropped glassware onto the floor… Jenny said I do not have a dustpan and brush and I said I’m sorry AWT I cannot get you mine as my hand is burned… I said Mohammed you have a dustpan and brush would you be able to clean it up for him Mohammed did not say anything and was just hovering about so I said Jenny there is glass next door that needs cleaning up are you going to tell Mohammed to help. Jenny was not really saying anything and then Mohammed says I think I have lost mine I said Mo you have not lost it you just do not want to get it dirty. Mohammed has issues with his dustpan and brush that he does not want to use it on the dirty floors. I then started raising my voice saying Jenny are you going to tell him the job needs doing. Jenny replies we do not shout anymore here and if you have a problem it needs to be put in writing to Lawrence. Mo had gone off into the lift to his floor when I say to Jenny why are you always sticking up for him you need to tell him to clean the glass of the floor he walks all over you and me and you let him get away with stuff and I have had enough. I then say I am going to tell Lawrence about all this and then Jenny starts raising her voice at me and says do what you like but you are all bark and no bite! No you won’t no you won’t! I was shocked that she had said that to me and I said no Jenny I do not say stuff as I am nice. I then walked out of her prep room.’[54]We find that that detailed account set out by the claimant the day after the incident to be accurate.[55]The remainder of the email sets out her complaint arising out of those facts: ‘I was really angry and upset with the comment and the issue with Mohammed over the cleaning up of the glass. I do admit I did raise my voice but that was only because nothing was being done on the clean up of the glass. I actually bought the dustpan and brush myself for Mohammed out of my own money but he does not like using it for the purpose it was bought for. This matter caused me to get so upset with Jenny and Mo that I wanted to go home. I spoke to Lawrence and calmed down and finished my working hours. There are many on going issues with me and Mohammed, only last term Mo sent Amrinder to my prep room to use my dustpan and brush I told Amrinder why are you not using Mohammed’s one he said he does not have one he told me. I said yes he does I bought it for him. Mo would rather lie to a teacher and not dirty his brush and send them down to my floor. Also a while ago I complained to Michael [Craven-then head of science] about Mohammed because Mohammed told me do not speak to him at lunchtimes in front of any other teachers I said I can talk when I want. He feels that if I asked him for help or asked him to do something that would undermine him. Jenny knows about this incident also as does Michael. I am sick of being treated like a second class person to Mo just because I am a women. I also have to tip toe around him and am very patient with him but he does not respect me back the same. Jenny does not want to upset Mohammed as he does stuff for her and it makes me feel sometimes I am the one running around in the 4 hours I am here. I like my job and get on well with everyone and always try to do the best I can for the teachers but at the moment these issues are causing me stress and health issues.’[56]Mr Hampton accepts that he received this email and, he says he read it in its entirety. In his written evidence he said that he felt there was not sufficient evidence in this complaint to suggest that Mr Sepahi was treating the claimant differently because of her sex, especially as she clearly stated that he would assist Ms Friedlos, and it appeared to him that it was a clash of personalities. He said that given that the department was facing enormous challenges at the time, these sorts of complaints should not be dealt with by him and he referred the matter to Ms Friedlos - the relevant line manager.[57]In cross-examination, Mr Hampton said that when he got this email his response was to give it to Ms Friedlos to deal with and asked her to look into it. Also that he just was not able to spend time investigating it further and that there were other people in the hierarchy whose job that was. Later in cross-examination Mr Hampton also said that he did not regard this email (and others) as formal, as they concerned the function and did not give details of wrongdoing by anyone.[58]In answer to questions from the panel regarding this email, Mr Hampton confirmed that the allegation of sex discrimination contained within it could be serious but that when he met Ms Friedlos and discussed it with her he concluded that it was less serious and that the problems were not because the claimant was a woman. Further, that on the face of it a complaint that the situation was causing the claimant stress and health issues was serious but again when he discussed it with Ms Friedlos he concluded that the argument was over something very little that had blown up and therefore was maybe not quite so serious. When asked if he regarded the email as a grievance he said yes in that he passed it to the line manager but accepted that it was not logged as a grievance. When he was pressed further by the panel on how he passed it to Ms Friedlos, he said that he showed it to her on his screen, it was not forwarded to her either in soft or hard copy and that his discussion with her about it was in the context of a support plan to be put in place for her because of concerns about her ability to manage the team. He confirmed that he did not tell Ms Friedlos specifically to respond to the email and that it would be discussed by Ms Friedlos with her coach as part of that support plan. He accepted that it would be difficult for Ms Friedlos to discuss the email with her coach if she was not given a copy.[59]In relation to the later appeal, Mr Toop’s evidence was that in his view this email showed a definite pattern of friction at work but did not constitute a formal complaint as it did not include a request for action. Rather that it was a statement of the claimant’s perception of Mr Sepahi’s behaviour.[60]An email from Ms Friedlos to Mr Sepahi copied to the claimant on 6 October 2016 indicates that there were problems regarding the doing of the washingup generated on the second floor (the claimant’s floor) and the claimant’s need to take glassware from her and Mr Sepahi. The email concluded: ‘Although we are split up on different floors we all look after all the teachers and need to share out the work as fairly as we can.’[61]On 9 January 2017 Ms Friedlos emailed Mr Hampton copying in Ms Navalta (director of school business and who by then was her coach), Mr Sepahi and the claimant. The subject was ‘technician discord’. The email read: ‘… I’m really sorry but we are having problems with working relationships that are beginning to impact on the delivery of practical resources to teachers. It is not the first time this has happened, over the last 8 years it has periodically been an issue. Many of our problems result from not being in the same room as each other.… Zoe and Mohammed are just not able to relate appropriately to each other at the moment and there has just been another argument between them which started over some lamps. Our situation is such that I think it requires some intervention…in order to restore functionality… as I have not been able to negotiate reasonable terms between them this time and it has become a daily feature that friction between them needs to be addressed.’[62]Mr Hampton’s evidence was that in response a new larger preparation room was created and a new ICT system implemented to allow Ms Friedlos to allocate tasks to the team. The new room was finished in September 2017 at which point the three technicians all worked from that room although they each still had their own individual rooms.[63]In the meantime on 24 May 2017, Ms Friedlos emailed Mr Dalton, head of science, informing him that there was friction again between the technicians over resources and that: ‘There simply isn’t time to keep on this way. If there is further discord I will let you know but I am hoping that things will settle down again.’[64]On 4 October 2017 a final incident occurred which led to the disciplinary action resulting in the claimant’s dismissal. The claimant’s account was that she came into school that day to find her experiments from the previous day uncollected and that when she confronted Mr Sepahi about this he told her he was not collecting her equipment. She then collected it herself. Mr Sepahi’s account was that he had collected the equipment and called the claimant who asked him to take it downstairs to the main preparation room but he told her he was busy and that he would send it to her on the second floor which is what he did. In her later investigation interview, Ms Friedlos confirmed that Mr Sepahi should have collected the trolley but had not. This supports the claimant’s principal complaint that Mr Sepahi had not done what he should have done. We find that the claimant’s account is accurate.[65]The claimant, Mr Sepahi and Ms Friedlos all then met in the main preparation room and an argument developed. The claimant accepts that she lost her temper, had a very heated argument with Mr Sepahi and that she swore at him. She accepts that she called him a ‘wanker’ and a ‘fucking bastard’. She also accepts that she said something about Iran, Mr Sepahi’s place of birth. Her evidence both in the investigation and disciplinary hearings and at this hearing was that she said ‘we are not in Iran any more’ and that she did not say ‘I will send you back to Iran’ or ‘go back to Iran’ or ‘fuck off to Iran’. In cross examination she said that she had been extremely distressed, crying her eyes out and was a ‘mental mess’. She was emphatic that she did not say ‘I will send you back to Iran’ and that that is not what she would say nor that she might have said ‘go back to Iran’. She accepted that this incident took place in the ground floor preparation room - next to a classroom - during school hours and that it was possible that students next door could have heard the argument.[66]The claimant went to see Mr Dalton who, when his lesson had ended, went down to the preparation room and spoke to her and Ms Friedlos. Later that afternoon he spoke to Mr Sepahi and advised him to write a statement about what had happened.[67]Mr Sepahi did prepare a written complaint that day in which he said that he had been intimidated and humiliated by the claimant in front of Ms Friedlos, that she had got very angry and said ‘you do not like working with me, you hate women and me’. Also that she had said to him ‘very loudly that I should go back home’ and ‘I will send you to Iran’ and that she swore at him many times including ‘you F… B…’.[68]The claimant left work that day at her usual time and was absent on sick leave on 5 & 6 October. She returned to work on Monday 9 October and was asked to attend a meeting with Ms Peterkin, the principal, Mr Hampton and the principal’s PA who took notes. The claimant was asked about the incident on 4 October. She said that that there was an ongoing issue with Mr Sepahi being sexist towards her. She accepted that she had called him a wanker on 4 October but denied that she told him to go back to his home country. She said that she had said ‘we are not in Iran and that I am a woman in 2017 and that [Mr Sepahi] cannot treat women like this’.[69]Ms Peterkin informed the claimant that the allegations would be investigated by Ms Navalta (the notes were subsequently amended to show that in fact the investigation would be by Mr Hampton) and that the claimant would be suspended. The claimant was given a letter confirming the suspension together with a copy of the relevant procedures.[70]The decision to suspend the claimant had clearly been made before the meeting commenced (contrary to the account later given by the principal to the disciplinary panel), the union had not been notified in advance and the claimant was not given any opportunity to secure union representation at that meeting. There appears to be no valid reasons for those oversights.[71]The claimant contacted the union after her suspension. She confirmed in answer to questions form the panel that she could have consulted the union before October 2017 regarding her work situation, but she chose not to and ‘decided to put up with it’ before then. When she did speak to the union she was advised about the Tribunal process but she was not sure if they told her about the 3-month time limit. She said that she decided to go to the Tribunal after she was dismissed.[72]Mr Hampton held investigatory meetings with Ms Friedlos and Mr Sepahi on 11 and 13 October 2017 respectively. He wrote to the claimant on 20 October 2017 inviting her to attend an investigatory meeting in relation to alleged inappropriate behaviour on 4 October 2017 and a failure to comply with the school’s equality and diversity policies. She was invited to inform him of any documents, witnesses or information relevant to the investigation and was advised of her right to be accompanied.[73]On 3 November 2017 the claimant’s union representative, Mr Blackman, emailed Mr Hampton attaching some correspondence and stated that Ms Friedlos would have other emails from over the years which would be relevant.[74]The claimant’s investigatory meeting took place on 8 November 2017 with Mr Blackman present. It lasted just over an hour and the claimant had a full opportunity to present her account of events. She admitted she had been swearing and was very distressed but denied that she had said ‘go home back to Iran’. She said that she said ‘we are not in Iran anymore’.[75]Towards the end of the meeting the claimant and Mr Blackman referred to Ms Friedlos being aware of problems between the claimant and Mr Sepahi and that she might have relevant emails.[76]Mr Hampton re-interviewed Ms Friedlos on 16 November 2017. He asked her to outline allegations by the claimant of inappropriate behaviour from Mr Sepahi. The relevant part of their exchange is as follows: ‘JFR: the first week she started in 2010, he did touch her and stroke her hand, we addressed it I have one email that I’ve kept. It has since stopped. Over the years, you get the feeling that culturally he feels you aren’t an equal. He really does try to be modern e.g. ‘even the women in my village have a mobile phone’ he was pointing out that things have changed. It’s low level, not intentional he was brought up in a different place and time. It’s not overt or objectionable. LHA: just to confirm: since the first week, Zoe has made no further allegation of inappropriate touching? JFR: no it has stopped. LHA: has she made any further allegations to you of inappropriate conduct? JFR: no LHA: she hasn’t verbally made reference to any other inappropriate conduct? JFR: no LHA: so she hasn’t alleged any misogynistic behaviour? JFR: no, she occasionally will just say he is not treating her like he should be. This is just a lack of respect for colleagues not to do with gender. I’m sure when you came, Zoe would have told you that Mohammad is lazy and I am useless. This is not the case. LHA: I need to ask you about at the end of the incident, you DDA and ZWI are in the prep room. Did Zoe ask you to confirm that Mohammad was often behaving misogynistically towards her, and if so, what were your words? JFR: the conversation was more about ‘ok, he ignores you and he ignores me too sometimes’. I said because I’m older and know more than him the second time round he usually takes notice. Again, it’s this thing around he has more experience some time he feels he knows better. I said ‘yeah, but’ then qualified this with the context around he feels he has a right to determine how he complete tasks. LHA: do you have any other emails around allegations for misogynistic behaviour. JFR: just the one that is on file.’[77]Also on 16 November 2017 Mr Hampton interviewed Mr Dalton.[78]On 24 January 2018 Mr Hampton completed his investigatory report. He set out the context, his process and the evidence supporting and going against the allegations. He also set out the mitigation offered by the claimant. He concluded that there was a case of gross misconduct to answer and referred the matter to a disciplinary panel.[79]Ms Peterkin wrote to the claimant on 24 January 2018 informing her that she was required to attend a disciplinary hearing to consider an allegation of gross misconduct in that she had behaved inappropriately towards Mr Sepahi and failed to comply with the equality and diversity policies. A bundle of documents was enclosed which included the investigation report, minutes of investigatory interviews, correspondence, witness statements and relevant policies. She invited the claimant to provide copies of any further relevant documents that she wished to be considered at the hearing. She was informed of the possible outcomes of the process, who would be conducting the hearing and that she had a right to be accompanied.[80]The disciplinary hearing took place on 8 February 2018. It was chaired by Ms Taylor. The claimant was in attendance with her union representative, Mr Isaac. The management’s case was presented by Ms Peterkin and Mr Hampton. Mr Hampton read out large portions of his investigation report. The panel and the claimant asked questions of the management team. The claimant then presented her case. She referred to a bundle of papers which included all the emails she said were relevant and said that they were not in the investigation report and supporting pack. Ms Taylor acknowledged that it would have been better if they had been included in the pack. After a brief adjournment the meeting resumed and the panel accepted the claimant’s bundle. There was then a further adjournment where those papers were copied and considered. On resuming Ms Taylor noted that they were disappointed these had not been included in the pack by management. The claimant then presented her case which included reading out extracts of the additional emails and answered questions from both the panel and management. Both management and the claimant then had an opportunity to summarise following which the hearing was adjourned.[81]The notes of the panel’s discussion following the hearing show that they engaged with the claimant’s argument that Mr Sepahi was a misogynist and considered the mitigating circumstances relied upon by her, but did not feel they justified the use of racist language towards Mr Sepahi who himself had deemed the comments to be racist. They were not persuaded that his behaviour was necessarily misogynistic and noted that it appeared he could be disrespectful to male colleagues as well. They concluded that the claimant’s language was racist and that she had admitted shouting and swearing directly at a colleague. They considered whether it would be appropriate to give a formal written warning but decided that the language used was sufficiently offensive such that the gross misconduct threshold was met and that the appropriate sanctions were either a final written warning or summary dismissal. They concluded that as the claimant had failed to understand the impact of her behaviour or to justify her comment about Iran, summary dismissal was appropriate.[82]Ms Taylor wrote to the claimant on 9 February 2018 informing her of that outcome.[83]The claimant lodged an appeal on 20 February 2018. She stated that she did not believe proper consideration had been taken into account when reviewing her verbal outburst. She referred to documented evidence of bullying and social exclusion and the behaviour of Mr Sepahi over seven years which was never addressed properly by the respondent. She also stated that she felt summary dismissal was very harsh and did not reflect her previous unblemished record in the seven years of abuse that she had suffered.[84]The claimant was advised of an appeal hearing on 22 March 2018 and that she had the right to be accompanied. The claimant advised the respondent that she would not be attending the appeal hearing. Accordingly when it convened the panel considered only written documentation including the original disciplinary documents, the minutes of the disciplinary hearing, the appeal letter and a statement by the chair of the disciplinary panel. The appeal was unsuccessful. The claimant was informed of this in writing by Mr Toop on 26 March 2018.[85]The claimant first contacted ACAS on 27 February 2018 and the conciliation period ended on 23 March 2018. Accordingly, the earliest date for a single allegation, or a last incident of conduct extending over a period, to be within time is 28 November 2017. The claim form was submitted to the Tribunal on 9 April 2018.
Conclusions
[86]Unfair dismissal: we conclude that the respondent, through its disciplinary and appeal panels, had a genuine belief in the misconduct of the claimant; namely her inappropriate behaviour towards Mr Sepahi on 4 October 2017 which was in breach of its equality and diversity policies.[87]There were reasonable grounds for that belief as the claimant admitted using offensive language, swearing, shouting and making the comment ‘we are not in Iran any more’. That comment contains implicit criticism and negativity which, together with the context of an extremely heated argument and other offensive language, amounted to a racist comment.[88]There was a reasonable investigation of the 4 October 2017 incident. Mr Hampton interviewed the three people present plus Mr Dalton. He reinterviewed Ms Friedlos after additional matters were raised by the claimant in her interview.[89]The overall procedure followed by the respondent was reasonable. In all the circumstances, in particular that the claimant and Mr Sepahi had close day-to-day contact in their normal working time, it was reasonable to suspend her. We note the breaches of the respondent’s policy with regard to that suspension and a failure to review it, but we conclude that none of those matters fundamentally undermine either the fairness of the suspension or the overall procedure. The claimant had the benefit of union representation from the investigatory interview onwards. The disciplinary and appeal panels were properly constituted and independent. Those panels properly and reasonably considered all the material before them. In particular at the appeal stage the decision was taken to only work on the basis of written representations from both sides in the absence of the claimant.[90]The claimant has also submitted that there was unreasonable delay in concluding the process. Taking into account school holidays and various difficulties in scheduling appointments, the delay was not unreasonable and did not fundamentally undermine the fairness of the process.[91]We have, however, very carefully considered the conduct of the investigation by Mr Hampton and the way it was presented to the disciplinary panel. There are a number of ways in which this investigation fell short of best practice and we have considered whether those flaws were such as to undermine the fairness of the whole procedure and subsequent decision to dismiss.[92]First, whether Mr Hampton should have conducted the investigation. The claimant’s submission was that he should not because he had been previously involved in relevant events and had an interest in ensuring that he was not himself implicated in any wrongdoing. We do not agree with that proposition. We note that the claimant was originally told that Ms Navalta would do the investigation and that was subsequently changed to Mr Hampton. Although we were never given a satisfactory explanation of why and when that decision was made, we conclude that that there was nothing untoward about it nor any prejudice to the claimant as a result. We do not conclude that Mr Hampton himself was implicated in the underlying events. He was not present during the altercation on 4 October and although he had had some prior involvement in the underlying issues within the team, there is an equal argument that because of that he was well placed to investigate them. We are therefore satisfied in principle that it was appropriate for Mr Hampton to conduct the investigation.[93]The claimant has also submitted that Mr Hampton was impartial in the way he carried out the investigation. First, she says that he deliberately withheld emails and did not include them in his investigation report. It is clear that Mr Hampton had knowledge of, and probably still had possession of, the claimant’s email to him dated 20 September 2016 and Ms Friedlos’s email to him dated 9 January 2017. Both contained very relevant information about the working relationships within the team. The other potentially relevant emails were from Ms Friedlos to Mr Sepahi and the claimant on 6 October 2016 and to Mr Dalton on 24 May 2017. It is not clear if Mr Hampton had knowledge of those at the time.[94]In any event the claimant says that not all of the emails from 2016 and 2017 were included or referred to in the investigation. In fact, not only are they not referred to, but in the report Mr Hampton identified that the claimant said there had been repeated misogynistic behaviour towards her by Mr Sepahi and that Ms Friedlos may have emails relevant to that. When Mr Hampton re-interviewed Ms Friedlos he asked her if she had any other emails around allegations of misogynistic behaviour to which she replied ‘Just the one that is on file’. In the context of their discussions we find that to be a reference to her 11 March 2010 email.[95]In the report however Mr Hampton positively said there was (only) one incident on file and that that was in January 2013. He specifically quoted from Ms Friedlos’s email dated 26 January 2013 where she had said the working relationship between the claimant and Mr Sepahi had broken down again ‘largely due to the manner in which Mohammad speaks and acts towards other technicians’ and identified that in an email in 2012 (18 October) she had said ‘Zoe reacts to real or perceived slights in a manner that makes it very difficult to resolve issues before they had become intolerable’. He also said at the disciplinary hearing that there had not been other incidents and no records of further incidents since February 2013. Plainly, this was incorrect.[96]When the entirety of the earlier emails and the 2016/2017 emails are considered, it does appear that there is an obvious omission in Mr Hampton’s report. First, the 20 September 2016 email expressly says that the claimant believed she was being treated like a second-class person just because she was a woman. It is not credible that – if is as he told us he had at the time read the entirety of this email - when Mr Hampton was investigating this matter and writing his report that he had completely forgotten about the existence of that email or did not appreciate its significance. It had been sent to him the day after the claimant had been in his office in distress and was a detailed and generally memorable email. He had, at least to some extent, discussed it with Ms Friedlos and he thought it was being dealt with by her. His acceptance in the report, therefore, of Ms Friedlos’s statement that there was only one incident on file (the January 2013 email) is very surprising.[97]Further, it is difficult to see Mr Hampton’s logic for only quoting the second of the three main factors identified by Ms Friedlos in her email dated 18 October 2012. The other two factors that deal with the behaviour of Mr Sepahi, set out in our findings above, appear to be highly relevant to the claimant’s mitigation.[98]The claimant submitted that Mr Hampton deliberately withheld emails from the panel and cherry-picked which parts of emails to quote, in a biased way against her. Whilst we agree with the claimant that the presentation of the emails was very unsatisfactory (if extracts of emails are to be specifically quoted this must be done in a balanced way) we do not conclude that it was deliberate or displays any bias on the part of Mr Hampton. Our conclusion is that Mr Hampton was focusing too narrowly on identifying emails or matters that expressly referred to misogynistic behaviour or gender. In all the circumstances this was too narrow an approach. In any event, even when adopting that approach, Mr Hampton inexplicably failed to refer to the email dated 20 September 2016 which clearly makes an allegation of sexism. We suspect the reason for that failure is, despite Mr Hampton’s assertion to the contrary, that he did not in fact fully read the email at the time. We find it is more likely that he skimmed it, thought it was a petty dispute about a dustpan and brush and treated it as such.[99]Further, Mr Hampton did not probe Ms Friedlos’s opening statement in her second interview about cultural differences and her comment that Mr Sepahi referred to even women in his village having a mobile phone. Even though she later in the interview expressly said that she thought he had a lack of respect of colleagues and that this was nothing to do with gender, the failure to probe these comments is surprising.[100]Overall, therefore, taking all these factors into account although we do not find that Mr Hampton deliberately investigated in a biased way or presented his report in a biased way, we conclude that his investigation in certain respects was not reasonable and those flaws had the potential to fundamentally undermine the fairness of the subsequent dismissal. His report had serious omissions (in particular the failure to investigate properly the claimant’s account of what led up to her outburst on 4 October 2017 and present what were clearly relevant emails after February 2013) and in some respects was unbalanced (the presentation of extracts of emails).[101]Those flaws, however, were addressed and remedied at the disciplinary panel hearing. The claimant presented all the relevant emails from 2016 and 2017 to the panel at the hearing. The panel accepted them and gave them and the claimant’s submissions regarding them, consideration. When the hearing resumed the claimant’s submissions about the contents of those emails were considered in detail. The panel engaged with her arguments, she was questioned about them and her union representative specifically addressed the emails in his summing up.[102]The disciplinary panel fully considered the claimant’s argument that Mr Sepahi had been misogynistic towards her. We note that they do not appear to have expressly engaged with the argument that even if he was not misogynistic he had, in other ways, behaved in a way that was mitigation for the claimant’s outburst. However, it would be reasonable for the panel to conclude that there could be no mitigation in all the circumstances for the use of very offensive language and a racist comment. Therefore, we conclude that that failure to engage with that argument did not make the dismissal unfair. (Even if we are wrong and it did, the failure to do so would have made no difference to the outcome and therefore would result in no compensation being awarded.)[103]The appeal panel also considered the claimant’s mitigation and relevant documents including, specifically, her email dated 20 September 2016.[104]Finally, was the decision to dismiss within the band of reasonable responses? The disciplinary panel expressly considered whether a final written warning would be appropriate rather than dismissal. It is not the role of the Tribunal to substitute its own view for that of the respondent and therefore although we consider the respondent’s decision in all the circumstances (particularly its clear failure to manage the obvious and serious people issues in the team), to be harsh, we cannot say that it was outwith the bands of reasonable responses of this employer in these circumstances.[105]Accordingly, the claimant was not unfairly dismissed.[106]Direct sex discrimination: the claimant’s case is that there were five occasions upon which there had been complaints regarding Mr Sepahi’s behaviour which amounted to gross misconduct and yet he was not suspended nor any disciplinary action taken against him. She compares her own treatment to this and says that on the one occasion that a complaint was made about her which was capable of amounting to gross misconduct, she was suspended, disciplined and ultimately dismissed. The claimant says this difference in treatment was because of her gender.[107]In cross-examination the claimant accepted that she did not believe the disciplinary panel dismissed her because she is a woman nor that her appeal failed because she is a woman. The respondent says on that basis that this claim is misconceived. It also says that the correct comparator would be a man who acted in the same way as the claimant had on 4 October but was not dismissed. That argument sidesteps the claimant’s key point which is the actual difference in treatment between herself and Mr Sepahi.[108]The five occasions identified by the claimant are:a. Mr Sepahi’s behaviour towards her in 2010 of touching her hands and stroking her hair or making remarks with which she was uncomfortable, as evidenced by Ms Friedlos’s email to Ms Mir on 11 March 2010;b. the recognition by Ms Friedlos in her email to Mr Cahill on 19 October 2012 that Mr Sepahi was not willing to accept that the claimant was of equal value to the team as himself and that he did not realise how personally offensive some of the remarks he made could be;c. the statement by Ms Friedlos in July 2012 that Mr Sepahi’s attitude problem relating to perceived issues of status prevented his operating as an effective team member and that his manner towards the claimant at a personal level was unacceptable;d. Ms Friedlos’s email dated 26 January 2013 where she referred to the working relationship again breaking down and this being largely due to the manner in which Mr Sepahi spoke and acted towards other technicians. Also that he had in her opinion been rude and deliberately obstructive to both Mr Furlong and the claimant and further that a previous technician found it impossible to work with him because of his poor attitude towards her and that whilst blame could not lie entirely with Mr Sepahi, in large part he was responsible;e. the events set out by the claimant in her email to Mr Hampton dated 20 September 2016.[109]We conclude that the claimant has proved primary facts from which we could conclude, in the absence of an adequate explanation, that she had been unlawfully discriminated against. In particular, the inappropriate touching and comments by Mr Sepahi in 2010, the more than one occasion on which Ms Friedlos has identified Mr Sepahi as behaving in a completely unacceptable way towards the claimant and others and the claimant’s own email of 20 September 2016. There are both allegations and proved facts in those emails that were clearly capable of being treated as gross misconduct.[110]We also conclude, however, that the respondent has given an adequate and non-discriminatory explanation of that apparent difference in treatment. In relation to all of the occasions relied upon by the claimant, with the exception of (e), the claimant made no formal written complaint in comparison to Mr Sepahi in 2017 who did. Instead she raised the matters orally with Ms Friedlos and/or with Mr Sepahi himself. We have no compelling evidence about the detail of each of those complaints/allegations and it is not clear if details were given at the time to the respondent. It is clear, however, that there was never any allegation made by the claimant that Mr Sepahi had sworn at her, shouted at her or used expressly discriminatory language. This is in contrast to Mr Sepahi’s complaint about the claimant in 2017.[111]In any event the claimant’s complaint in 2010 about the inappropriate touching and comments was apparently successfully addressed (albeit that it took two conversations) as there was no allegation of such behaviour being repeated.[112]Her subsequent complaints were also addressed by a variety of means albeit clearly unsuccessfully and ineffectively. Over a period of some years discussions and meetings were held (on at least one occasion prompting an apology from Mr Sepahi) together with various steps including a written informal warning to Mr Sepahi and moving the parties to different rooms.[113]As far as incident (e) is concerned, however, we find that the claimant’s email dated 20 September 2017 was a formal, written complaint about Mr Sepahi’s behaviour. Although it was different in nature to the allegations later made about her by Mr Sepahi, it was equally serious. Her allegations, if they had been properly dealt with and investigated at the time, could have revealed behaviour capable of being gross misconduct and warranted suspension and/or disciplinary action. They were plainly not properly dealt with however. Mr Hampton failed to give her allegations the serious consideration that they deserved. His evidence about passing them to Ms Friedlos, as line manager, to deal with was inconsistent and unconvincing. Further, even if he did at the time believe he was asking Ms Friedlos to deal with the issue, given that he had already identified that she had not previously properly managed the team, this was an inappropriate response.[114]Mr Hampton’s explanation for his response to this email was that it contained no detail, it raised no serious issues, it felt like a relationship issue and that in the context of the very challenging and busy job he had to do at the time, his reaction was appropriate. He accepts now that it did amount to a grievance and acknowledges that it was not logged as one.[115]We conclude however, that the reason for the difference in treatment by the respondent between the claimant’s allegations against Mr Sepahi in September 2016 and Mr Sepahi’s allegations against the claimant in October 2017, was not her gender. Instead, it was because Mr Hampton did not give proper consideration to the contents of her email and this was because of his workload and lack of time to devote to it. We accept that at the time he genuinely (but mistakenly) thought that he was doing the right thing. Given that reason, however, the difference in treatment was not because of the claimant’s gender and the claim of direct sex discrimination fails.[116]Harassment: As described above the claimant has set out in her schedule eight matters which she says amount to unlawful harassment related to her sex. She says that these matters amounted to conduct extending over a period from 2010 to 4 October 2017. Time started to run against the claimant at the latest therefore on 4 October 2017 in respect of those claims and they are all, even if they amounted to one course of conduct extending over that period, prima facie out of time.[117]In fact, we do not agree that the matters of which she complains amounted to conduct extending over a period. Although she describes in general terms that she was subjected to unacceptable behaviour by Mr Sepahi throughout this period and Ms Friedlos has also referred to unacceptable behaviour occurring periodically from the commencement of employment, it is clear that the allegations regarding inappropriate touching and remarks in 2010 were in respect of one-off acts distinct from and of a different nature to the later complaints by the claimant and thereafter there were periods of time when the claimant made no complaints, formal or informal. In particular, between 4 February 2013 (when the informal warning was given to Mr Sepahi) and the 19 September 2016 incident, there is no documentary evidence of any difficulty between the claimant and Mr Sepahi. Further, between 6 October 2016 (when Ms Friedlos emailed Mr Sepahi to remind him that they need to share out the work as fairly as they can) and 9 January 2017 when she reported to Mr Hampton that there were problems with working relationships there is no such documentary evidence. There is then another gap until Ms Friedlos’s email to Mr Dalton on 24 May 2017 and then another gap until the final incident on 4 October 2017.[118]For this reason we conclude that although from time to time incidents arose in the working relationships within the science technicians’ team, there was not one course of conduct extending over the period 2010 to 4 October 2017. Rather there was a series of one-off acts. Accordingly the claim form submitted in 2018 in respect of those acts is at the very least a few weeks out of time and in some cases very significantly out of time, having an obvious impact on the cogency of the relevant evidence.[119]In deciding whether to exercise the discretion to extend time in her favour, we note that the claimant’s clear acknowledgment in her evidence that she could at any time throughout her employment have contacted the union and sought advice with regard to her issues with Mr Sepahi. Indeed she said that time and time again she said she would go to the union but then she decided to ‘put up with it’. Further, her evidence was that she had access to the union very shortly after 4 October 2017 and they discussed the possibility of Tribunal proceedings. She relies upon delay by the respondent in concluding her disciplinary case to beyond the expiry of the primary time limit as a reason for exercising discretion in her favour. There is no evidence to suggest however that at the time that was part of her thinking for a reason in delaying commencing proceedings for sexual harassment and, again, she was discussing all these matters with her union representative throughout that period.[120]In considering whether to extend time we have also had regard to the merits of her allegations of sexual harassment. In relation to the allegations arising from 2010, we conclude that they are meritorious. It is clear that there was unwanted conduct that reasonably created the effect of a hostile environment for the claimant and given the nature of the conduct it was related to gender. However, even though it has merit, the conduct was in 2010 and the claim has been brought so far out of time that those merits are not outweighed by the delay.[121]In respect of the remaining allegations of harassment, we conclude that there was unwanted conduct on the part of Mr Sepahi towards the claimant that reasonably had the effect of creating a hostile environment. We are not persuaded however that that conduct was related to her gender (even expressly taking into account our findings regarding the 2010 events). Having considered all of the relevant documentation, and in particular the contradictory comments made by Ms Friedlos in her second investigatory interview with Mr Hampton, we find that the better explanation for the reason for Mr Sepahi’s conduct towards the claimant is that the claimant was a better technician than him, she had been employed for less time and did fewer hours than him, but he found her ‘over-powering’ and in his mind was always telling him what to do. The claimant’s evidence both before this Hearing and in contemporaneous documents, was that she believed Mr Sepahi had an issue about status. She confirmed that he would help Ms Friedlos (his line manager and therefore more senior to him) and the female principal. Our assessment is that the underlying cause of the very regrettable working relationship between the claimant and Mr Sepahi was ineffective management over a sustained period of time which created ill feeling between them which the claimant wrongly perceived as being related to her gender and which led Mr Sepahi to believe that the claimant was, to put it colloquially, lording it over him.[122]In all those circumstances we conclude that it is not just and equitable to extend time in respect of the claims of harassment.[123]Accordingly, all of the claimant’s claims fail and are dismissed.