Miss J Chen v Cut Your Wolf Loose Ltd and Others: 2303809/2022
EMPLOYMENT TRIBUNALS
Case No 2303809/2022
Between
Miss J ChenClaimantCut Your Wolf Loose Ltd and OthersRespondent
Before
Employment Judge T PerryDate 16 December 2024
JUDGMENT
[1]The Claimant’s claim under section 100 Employment Rights Act 1996 fails and is dismissed.[2]The Claimant’s claims for harassment related to race fail and are dismissed.[3]The Claimant’s claims for sexual harassment fail and are dismissed.[4]The Claimant’s case for breach of contract in relation to pension contributions fails and is dismissed.
REASONS
[1]The hearing proceeded with the assistance of a translator. The Claimant and her representative both speak good English and did not require translation of all matters. However, they referred to the translator as required.[2]I had before me an agreed bundle of 275 pages. I was provided with two further documents during the course of the hearing: one in relation to pension and a second regarding the Claimant’s subsequent employment with another company.[3]At the outset of the hearing, I had to determine a question about the Claimant seeking to rely on two witness statements served late. These were for the Claimant and Mr Francis Asiaw. Ultimately, for the reasons explaned at the time, I decided to permit the Claimant to rely on her statement but not that of Mr Asiaw.[4]The Claimant and her partner Mr Huang gave evidence from witness statements as did Mr Simon Wilkinson, a former customer of the First Respondent. The Claimant provided a number of further statements for witnesses who did not attend. I placed no weight on these statements including one which was in Mandarin for which there was no translation.[5]The Second and Third Respondents gave evidence from witness statements as did Ms H Johannsdottir, a former employee of the First Respondent.[6]At the start of the final day before closing submissions, the Claimant intimated a desire to rely on a further witness statement she had written overnight. She informed me this contained evidence of a serious allegation against Mr Woolf that was not part of the current issues. Without reviewing the witness evidence, I declined this request for the reasons given orally at the time, specifically the prejudice any further evidence would put the Respondent to give the late hour, the fact that the statement was unrelated to the issues in the current case and that granting the application would have of necessity required a postponement of the hearing.
The issues
[7]At the outset of the hearing, it was agreed that the issues in the case were broadly as set out in the record of preliminary hearing before EJ Cawthray on 25 September 2024. That list includes time issues in relation to the unfair dismissal claim, when it was actually in time. It also records uncertainty as to how the claimant’s claim in relation to pension payments was being advanced. I confirmed my understanding of the law that such a claim could not proceed as a deduction from wages claim (following Somerset County Council v Chambers) and that there was some doubt whether it could be a breach of contract claim either.[8]On the morning of the third day, I highlighted to the parties that there appeared also to be issues about whether some of the alleged harassment was by an employee or agent of the First Respondent or a customer and whether the alleged sexual harassment happened during the course of employment for the purposes of section 109(1) Equality Act 2010.[9]Accordingly, the final list of issues to be determined was as follows: Time limits 1.2 Were the harassment complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? Automatically unfair dismissal – section 100(1) (c ) Employment Rights Act 2.1 Was the reason or principal reason for dismissal that the Claimant brought to her employer’s attention, by reasonable means, circumstances connected with his work which she reasonably believed were harmful or potentially harmful to health or safety? If so, the Claimant will be regarded as unfairly dismissed. Harassment related to race (Equality Act 2010 section 26)4.1 Did the Respondents do the following things:4.1.1 In June 2022 did Hux place stickers over positive feedback left in writing by customers regarding the Claimant so that the comments could no longer be read?4.1.2 In June/July 2022 did the Second Respondent and Third Respondent, Hux and Hux’s boyfriend (Tom) talk about the low cost of Chinse goods and commodities and did Hux say “cheap shit being made in China” and Tom replied, “Vivian made it” (the Claimant is called Vivian informally) and everyone laugh at the Claimant’s expense?4.1.3 Was the Third Respondent in June/July 2022, following the Claimant raising her concerns about the above incident, dismissive and downplay the remarks made by Hux, suggest the Claimant was overreacting and urged the Claimant to try and “fit in” and “get along” with her colleagues?4.2 If so, was that unwanted conduct?4.3 Did it relate to race?4.4 Did the conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? Sexual Harassment (Equality Act 2010 section 26)5.1 Did the Respondents do the following things:5.1.1 In late September 2021 did the Second Respondent walk the Claimant back to her flat after their shift had ended and when they embraced to say goodbye did the Second Respondents lean towards the Claimant and kiss her on the neck passionately and intimately?5.1.2 In early October 2021 did the Second Respondent walk the Claimant back to her flat after their shift had ended and when they embraced to say goodbye did the Second Respondents lean towards the Claimant and kiss her on the neck passionately and intimately?5.2 Was the unwanted conduct of a sexual nature or sex?5.3 Did the conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?
The facts
[10]The First Respondent company operates a specialist whisky bar and shop in Brighton. The shop opened in September 2021 at the same time as the Claimant started work. During the Claimant’s employment it had five members of staff. The Claimant was known by colleagues as Vivian.[11]The Claimant has a history of employment in the hospitality and bar industry. None of the Claimant’s previous employments were for more than 14 months. Many were significantly shorter. The Claimant told me she is financially secure and does not need to work for money. The Claimant has an extensive knowledge of whisky.[12]The Second Respondent, Mr de Newtown, has been since December 2021 the general manager of the First Respondent. He also joined in September 2021 as Assistant Manager.[13]The Third Respondent, Mr Woolf, is the owner and a statutory director of the First Respondent.[14]Ms Johannsdottir, known as Hux, was employed by the First Respondent from September 2021 until approximately September 2022.[15]In October 2021, the Claimant was auto enrolled in Nest in relation to pensions.[16]Mr de Newtown walked the Claimant home to her flat on various occasions. This was on his way home.[17]During the day, the shop is relatively quiet. During this time staff send out mail orders, organise bookings and prepare tastings for that evening. Staff are free to eat at work, especially when quiet. Customers are encouraged to write on the walls of the bar and are provided with pens to do so.[18]The Claimant worked the most hours of any member of staff. This was notwithstanding that the Claimant studied alongside working for the First Respondent.[19]Staff were allowed to close the shop for brief periods by putting up a “back in five” sign on the door. Staff may not leave customers inside the store.[20]There were sometimes staff socials after training sessions.[21]On 7 December 2021, the Claimant messaged Mr Woolf alleging that the then general manager, Lee Standen, had been racist towards her. Mr Woolf informed Mr de Newtown of this saying “if it’s true I’ll be asking him to leave today.” Mr de Newtown described an incident where Mr Standen had joked that a dog barking at the Claimant was being racist and that this had upset the Claimant.[22]During the Christmas period in December 2021, the Claimant worked alone for a period while her colleagues were taking holiday. At least some of these shifts were longer than usual. This was a busy period in the shop due to a large number of orders for a rare whisky. By WhatsApp message on 31 December 2021, Mr de Newtown thanked the Claimant for her hard work during this period. The Claimant accepted that she and Mr de Newtown maintained an openly positive relationship for most of her employment, albeit she felt he did not like her as he felt threatened by her. Other than the Claimant’s allegation, there is no evidence to suggest that Mr de Newtown bullied or targeted her.[23]In December 2021, the Claimant asked Mr Woolf for a promotion, but he refused this. The Claimant would on occasion go directly to Mr Woolf about matters because he had a flat above the bar and was often there.[24]The Claimant had a strained relationship with a colleague, Zach, who is non-binary. The Claimant alleges Zach did not like her because of her race. Zach apparently did not thank the Claimant for her Christmas gift. There was a disagreement between them about serving a black couple who Zach felt were intoxicated. In late January 2022 Mr de Newtown said to Mr Woolf that he was “tempted to sit them both down with each other and point out neither of them are teenagers anymore.” Mr Woolf replied “do this. I can’t stand this. Both sell differently and have different tastes. They need to respect this of each other.” This instruction was passed to the Claimant who agreed to talk to Zach. This meeting did not happen including Mr de Newtown because the Claimant and Zach went for a drink and temporarily repaired their relationship.[25]In January 2022, Mr de Newtown had spoken to the Claimant about serving drinks outside of licenced hours on more than one occasion.[26]In around February 2022, Zach raised a complaint regarding the Claimant after a conversation regarding Zach’s sexuality and asked Mr Woolf to fire the Claimant. Zach refused to join the Claimant for drinks at her birthday in March 2022. There was an incident at a cocktail bar called Potting Parlour where Zach was witnessed by Mr Wilkinson making a comment to the Claimant that Mr Wilkinson felt was inappropriate regarding the making of a cocktail. There is nothing to suggest this comment was related to race.[27]On 10 April 2022 Mr de Newtown messaged the Claimant to say hew was “fuming” about comments she made in a staff group chat. The Claimant justified her comments saying, “it’s safer and more appropriate to have two persons working on Saturday to provide a better service so as to generate more profits.” [107] Mr de Newtown replied “I appreciate your opinion and have already been looking at rehashing Fridays…. I will continue to make a judgment call on Saturdays however I will revert to my original technique of clocking off but staying in the bar so I can jump back in instantly if it gets busy.” This was a reference to a flexible policy about whether two members of staff were at work on Saturdays depending on how busy the bar was.[28]The Claimant had sought to resign on 30 April 2022 citing feeling unappreciated and not liking the way her colleagues treated her. Mr Woolf commented to Mr de Newtown by WhatsApp that the Claimant had “always got problems”.[29]On 3 May 2022 the Claimant rescinded this resignation after a few days saying, “I will be open to others ideas regardless of good or bad.”[30]On 6 May 2022, Zach messaged Mr de Newtown to make complaints about the Claimant. [126]. Mr de Newtown said to Zach “hold on mate. Just a bit longer” and asked him “later on can you send me your grievances please.” I find the first of these messages was a reference to the fact that the Claimant’s employment might still be ending after her resignation. I am sceptical of Mr de Newtown’s evidence that when he asked for details of grievance he intended to use these for a discussion with the Claimant about improving her behaviour. Rather, I find that Mr de Newtown was keen for Mr Woolf not to allow the Claimant to retract her resignation.[31]The Claimant met with Mr Woolf on 13 May 2022. The Claimant had initially been reluctant to attend the meeting but ultimately agreed to attend. The Claimant’s reluctance appeared to stem from having already spoken to Mr Woolf regarding the retraction of her resignation [107, 127] and I accept that Mr Woolf had already indicated to the Claimant that she would be allowed to retract her resignation. The Claimant requested and was allowed to bring a companion to the meeting. Mr de Newtown had intended to attend the meeting but was caught in traffic.[32]Mr de Newtown messaged Mr Woof that day saying “I just don’t feel I can rely on her to follow important instructions… When she thinks she knows better she cannot be budged.” He recorded the Claimant ignoring his instructions and going straight to Mr Woolf and failing to shut the bar by 10pm. It is clear to me that Mr de Newtown still wanted the Claimant’s employment to end. [104][33]At the meeting, Mr Woolf told the Claimant that she needed to patch up her relationship with Zach. I do not accept that the Claimant told Mr Woolf at this meeting that Mr de Newtown had harassed her. In light of Mr Woolf’s proactive response to the Claimant raising allegations of racism against Mr Standen, I do not accept that Mr Woolf would have ignored or failed to act on such concerns had they been raised.[34]On 14 August 2022, Mr de Newtown sent the Claimant a draft contract of employment. The Claimant queried the provisions regarding pensions. There was an exchange during which the Claimant alleged the Respondent was acting illegally in failing to provide the Claimant with pension contributions. Mr de Newtown replied that pension contributions were being handled by the accountants and that the Claimant should check her emails for “Nest”. The ultimate wording of the contract referred to the Respondent providing a pension via Nest.[35]On 21 August 2022, Mr de Newtown provided the Claimant with a letter detailing the Nest pension scheme the Claimant had been enrolled in. The letter said her enrolment had been from 30 October 2021. It is clear to me from both the payslips and Nest pension statements, that pension deductions were made and paid into Nest throughout the Claimant’s employment.[36]On 3 September 2022, the Claimant was on the rota to work a double shift.[37]On 3 September 2022, Mr Woolf attended the shop at around 4pm. The Claimant told him she was hungry. Mr Woolf told her he would be back in five minutes after he made a call. Mr Woolf then left the shop to call his brother and witnessed the Claimant leaving to get food whilst customers were left in the shop. Mr Woolf approached the Claimant to discuss what he had seen and to say she should not leave the store. Mr Woolf was annoyed by the Claimant’s actions.[38]The Claimant continued to work. Mr Woolf was upstairs and messaged to offer to help at 17:00 and 19:56 [157]. The evening appears to have been busy. The Claimant messaged Mr Woolf at 21:40 to say she may need help cleaning up later but he replied at 22:08 to say there was not much to clean up. The Claimant replied at 22:16 to say there were lots of glasses and that she had been working nonstop. The Claimant sent pictures to Mr Woolf showing the state of the tables. After closing around 10:30pm, Mr Woolf came down to the bar. The Claimant was upset and asked a series of questions of Mr Woolf including asking why he had not come down to help her. The Claimant implied that she was not prepared to continue working when she felt she was doing three people’s work and should be paid three people’s wages. The Claimant was upset over the amount of work she had had to do. She did not raise issues of health and safety. Mr Woolf did not reply as he was still angry with the Claimant having left the store untended earlier that afternoon.[39]On 9 September 2022 at 12:46, Mr de Newtown sent an email to the Claimant from him and Mr Woolf to raise issues regarding her having left the shop untended when there were customers inside on 3 September 2022 and how she spoke to colleagues generally in a disrespectful manner and specifically to Mr Woolf on 3 September 2022. The example was given of the Claimant threatening to walk out of her job. The letter also alleged that the Claimant had failed to stop alcohol being served to minors. The Claimant was told that she needed to manage the workload when the shop was busy to the best of her ability and that this might require less conversation with customers. The emailed stated that these issues had been raised with her before orally but that now the Claimant was given a formal warning.[40]The Claimant emailed a response on 9 September 2022 at 19:24. In her reply the Claimant criticised “management failure and misconduct, corruption and exploitation within the workforce” and said her conversations had been quoted out of context to cover these up. The Claimant referred to a colleague Ryan having resigned “due to management gross misconduct.” The Claimant claimed she had been misinterpreted in her comments to Mr Woolf in relation to threatening to walk out. She said she did not use the “back in five” sign and rather had exercised her discretion when on a long shift when she had been “starving” on a long shift when she had to do three people’s work without support in the evening. The Claimant did not deny the allegation regarding a minor being given alcohol but said this happened when she had been busy on a shift alone. The Claimant stressed the need to recognise her good performance. The Claimant said she effectively managed customer expectations when working alone and without support but that this had not been recognised. The Claimant said, “it is vital to adopt effective communication, encourage collaborative measures and nurture an impartial culture in the workplace to minimise potential risks, expedite processes and facilitate rapid revenue growth.” The Claimant said she was raising a grievance.[41]Mr de Newtown messaged the Claimant on 12 September 2022 to invite her to a meeting the following day. The Claimant refused to attend this meeting. Mr de Newtown suggested that he would send the Claimant a letter instead of a meeting. [109, 132][42]At 13:59 on 12 September 2022, Mr de Newtown emailed the Claimant a letter from Mr Woolf [221-222]. This letter dismissed the claimant. The reason given for dismissal was that the Claimant’s grievance made it clear that she did not see fault on her part and, accordingly, that there was no basis on which they could move forward constructively (which was the basis on which the Claimant had previously been given a warning). The Claimant was effectively put on garden leave until 11 October 2022.[43]That evening, the Claimant attended a tasting at the bar. The Claimant went behind the bar and sought to speak to Mr de Newtown about the termination of her employment. The Claimant then sought to in effect test Mr de Newtown’s knowledge of whisky by asking him several times for a recommendation for a drink, each of which she rejected. I find she did this with a view to humiliating him. All of this was in front of customers. Mr de Newtown left early to avoid further incident, but it appears a meeting was set for the following day.[44]On 13 September 2022, Maria Barney, one of the Claimant’s colleagues, emailed Mr de Newtown regarding the Claimant. In this she described being uncomfortable about the exchange the Claimant had had with Mr de Newtown the day before behind the bar.[45]There was a meeting on 13 September 2022. During this meeting the Claimant queried whether she had been given sufficient notice of termination. There was a discussion about the incident the night before at the bar. At the end of the meeting, the Claimant accused Mr de Newtown of having tried to kiss her when he walked her home. Mr de Newtown denied this and suggested he had asked her to mind his personal space. The Law Unfair dismissal
The Law
[46]Section 100(1)(c) Employment Rights Act 1996 states in respect of employees in workplaces where there are no health and safety representatives or safety committee that an employee shall be regarded as unfairly dismissed if the reason (or if more than one the, the principal reason) for the dismissal is that an employee brings to his employer’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety.[47]The burden of proof for showing the reason for the dismissal is, in this case, on the Claimant because she was employed for less than two years (Smith v Hayle Town Council 1978 ICR 996 CA applied in the context of s100 in Tedeschi v Hosiden Besson Ltd EAT 959/95).[48]The test is one of the reasons why the employer dismissed and not a but for causation test. The classic statement of the reason for dismissal is still that from Abernethy v Mott Hay and Anderson [1974] IRLR 213, namely ''a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee'.' Harassment[49]Section 26 Equality Act 2010 states (in so far as it is relevant)(1) A person (A) harasses another (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 B.(2) A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). … (4) In deciding whether 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. (c)whether it is reasonable for the conduct to have that effect.[50]Section 109 and 110 Equality Act 2010 state, in so far as are relevant: Section 109 (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. … (3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval. Section 110 (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).[51]The combined effect of these provisions is that both an employing company and an individual can only be responsible for acts done “in the course of employment.”[52]Whether something is done in the course of employment is a question of fact for a Tribunal to decide. The words 'in the course of employment' are to be interpreted in the sense in which they are employed in everyday speech and not restrictively by reference to the principles laid down by case law for establishing an employer's vicarious liability for the torts committed by an employee. This gives a wide discretion to employment tribunals to reach a decision that is seen as in accordance with justice and equity (Jones v Tower Boot Co Ltd [1997] IRLR 168). There are numerous instances where actions outside of working hours have been held to be in the course of employment including notable at work social events.[53]Employers are generally not responsible for the acts of third parties even if amounting to harassment. Equally, they are generally not liable for failing to prevent harassment by third parties unless the failure to act was itself because of or related to a protected characteristic (Bessong v Pennine Care NHS Foundation Trust [2020] IRLR 4, applying UNITE the Union v Nailard [2018] IRLR 730.)[54]Guidance on whether the effect of unwanted conduct amounts to harassment was provided by Lord Justice Underhill in Pemberton v Inwood 2018 ICR 1291, CA where he stated: “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 it should not be found to have done so”[55]The tribunal has a broad discretion to extend the normal limit of three months from the date of the act of discrimination where it considers it 'just and equitable' so to do under section 123(1)(b) Equality Act 2010. There is no need for the Claimant to show a good reason for the delay.[56]However, the EAT noted in Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT/0320/15 per HHJ Shanks at [25]), that there is a burden of persuasion on the Claimant, it is not a burden of proof or evidence, as such. In Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278 at [9] the EAT, HHJ Peter Clark, stated that 'if the claimant advances no case to support an extension of time, plainly, he is not entitled to one'. Conclusions Unfair dismissal
Conclusions
[57]The first question is whether by the grievance email on 9 September 2022 the Claimant raised circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health and safety.[58]The Claimant did refer to herself as “starving during her shifts” and “working alone in a busy shift without a break.” The Claimant was, at least in part, raising that she had been unable to take a break due to working alone. Being unable to take a break due to working alone might be said to be circumstances connected with work which the Claimant believed were potentially harmful to health and safety. There is an element of health and safety motivating the taking of breaks by staff. I also note that the Claimant had previously raised that it was safer to have two people working on Saturday shifts, albeit that did not seem to be in the context of ability to take breaks. I accept that the grievance was, albeit obliquely and solely in the context of explaining her decision to leave the bar unstaffed, raising circumstances connected with her work which she believed were harmful or potentially harmful to health and safety.[59]A concern about failure to take breaks might be thought to be reasonable given there is an element of health and safety motivating the taking of breaks by staff. However, in this case, staff including the claimant had been made aware that breaks could be taken at any time when the store was not busy. They were even allowed to shut the shop and put a sign saying “back in 5 minutes” up. Generally, it was unreasonable for the Claimant to say that solo working meant there was an inability to take breaks. However, that is not what she was saying here, her concern was limited to a day when she felt it was too busy to take a break when working alone. It was reasonable for the Claimant to believe that raising solo working solely in the context of days were the shop was too busy to take a break, was raising circumstances which she believed were harmful or potentially harmful to health and safety.[60]The question then is whether that aspect of the email of 9 September 2022 (or indeed that email generally) was the sole or principal reason for the Claimant’s dismissal. I am overwhelmingly satisfied that it was not for several reasons.[61]First, it is not clear on the face of it that the email is even raising a health and safety issue and I entirely accept that Mr Woolf and Mr de Newtown did not understand it to be doing so. Whilst there are some words that, when subjected to close analysis, show that the Claimant might have been alluding to a health and safety issue, the aspect of the email that annoyed the Respondents was the Claimant’s failure to acknowledge any responsibility for any of the matters contained in the warning email. This is what the dismissal letter refers to and I accept that it is an accurate version of the Respondents’ views about the Claimant’s grievance.[62]Second, the Claimant has been far from consistent in her position on whether raising health and safety concerns was the sole or principal reason for her dismissal. Her facebook posts around the time of dismissal make no mention of this issue. Her ET1 made no mention of health and safety. The issue was only raised on her behalf by solicitors instructed after the Tribunal pointed out that she had insufficient continuity of service to bring a “normal” unfair dismissal claim under section 98 Employment Rights Act 1996. Before the Tribunal she advanced numerous other reasons why she felt she was dismissed and ignored almost entirely any suggestion that the dismissal was because she raised any issue with inability to take breaks. These various alternative reasons for dismissal included, raising pensions issues, asking for a pay rise, asking for a promotion, Mr de Newtown’s (allegedly longstanding) jealousy of or feeling threatened by the Claimant, as well as race and sex.[63]Finally, whilst the letter was effectively the last straw that changed the mind of the Respondents about whether they could continue to work with the Claimant, I am entirely satisfied that the substantive issues that were operating in the minds of the Respondents when they took the decision to dismiss were the matters contained in the warning email of 9 September 2022, all of which predated the Claimant’s grievance. These were how the Claimant spoke to her colleagues and managers, leaving the shop unstaffed on 3 September 2022, allowing the service of alcohol to minors and prioritising talking to customers over doing other duties such as clearing glasses and returning bottles to shelves.[64]Whilst it is essentially irrelevant whether these concerns were valid, I am reinforced in my conclusions that these were not sham reasons because there is significant evidence to support them. There is clear evidence in the bundle of the Claimant failing to strictly comply with the terms of the licence in relation to closing times and the Respondents having to speak to her about this. It is accepted that a minor was given alcohol when the Claimant was responsible for the bar. There is considerable evidence that the Claimant’s colleagues had issues with her including Ms Barney’s complaint on 12 September 2022 and Zach’s complaints in early May 2022. Mr de Newtown clearly did not feel he could trust the Claimant to comply with his instructions and said so to Mr Woolf at the time.[65]I follows from all that I have said above that the Claimant’s claim under section 100 Employment Rights Act 1996 fails and is dismissed. Harassment related to race.[66]Ms Johansdottir accepted that she did cover a table with stickers, or more accurately labels of whisky bottles. Ms Johansdottir was unaware whether this table had positive feedback relating to the Claimant on it. I accept that the table may have contained positive comments regarding the Claimant, but it is unclear whether it actually did, and I am not able to make a finding of fact either way on whether this happened.[67]In any event, the reason Ms Johansdottir covered the table was because she was told to do so by Mr Woolf, who was considering doing this to all the tables before putting glass tops on them. The labels had been commissioned by Mr Woolf by local artists for whisky bottles sold at the shop. Mr Woolf had no idea about any table having positive comments on it about the Claimant.[68]Whilst the Claimant may have found covering up positive comments about her to be unwelcome, she did not complain about it at the time. There is nothing to suggest that this act was related to race in any way, and I find as a fact that it was not.[69]Ms Johansdottir left the bar in May 2022 to take up employment elsewhere. She attended the bar for drinks after leaving but before going abroad later that month. It is unclear to me whether this was a formal leaving drink.[70]The Claimant says that a comment was made by Ms Johansdottir regarding “cheap shit being made in China” and that her boyfriend replied that “Vivian made it.” The Claimant says Ms Johansdottir, Mr Woolf, and Mr de Newtown laughed at this.[71]The Claimant in her claim form alleges that she raised these concerns with Mr Woolf but that he said he wanted staff to get on and suggested the Claimant was always accusing and competing with her colleagues. Mr Woolf denies this concern was raised with him.[72]Ms Johansdottir denes the incident took place. The Respondents deny witnessing it.[73]I prefer Mr Woolf’s evidence to the Claimant’s on whether the Claimant raised any complaint about an incident like this. I find that if the Claimant had raised it Mr Woolf would have investigated it as he did with her concerns regarding Mr Standen. That he did not do so, if strong evidence that the matter was not raised.[74]The finding that the Claimant did not complain then leads me to conclude that the incident did not happen. The Claimant had shown herself to be more than willing to call out perceived racism. She had done so before her employment on a public facebook page when refused service at another bar in Brighton. She had done so when confronted by alleged racism by Mr Standen. If the incident had happened as the Claimant alleged and, in particular, if it had the necessary effect alleged by the Claimant to amount to harassment, I think she would have mentioned it at the time.[75]It follows from all that I have said above that the Claimant’s claims for harassment related to race fail and are dismissed. Sexual harassment[76]This is by some way the most difficult aspect of the case to determine given it is an issue of directly contradictory oral evidence of two individuals.[77]It is agreed Mr de Newtown walked the Claimant home several times. It is agreed they hugged at the Claimant’s house.[78]Mr de Newtown says that he gave the Claimant an air kiss. She says he kissed her intimately on her neck on one occasion in September 2021 and again in October 2021.[79]Mr Huang says the Claimant told him about the two incidents only in October 2021 after the second instance. Mr Huang insists he told the Claimant to complain to Mr Woolf or to contact the police but that she did not want to go to the police for fear of losing her employment.[80]The Claimant says in her witness statement that Mr de Newtown drove her home (but she says this is a translation issue and that the incidents were after walking her home). I accept this explanation for this inconsistency. The Claimant says she informed Mr Huang immediately after each incident.[81]The Claimant says she raised the matter with Mr Woolf at the meeting on 13 May 2022. It is accepted that the Claimant mentioned the allegation at the meeting on 13 September 2022 after she had been given her dismissal letter.[82]The Claimant effectively suggest that Mr de Newtown showed a pattern of preying on women working at the bar when he later entered into a relationship with a colleague, Ms Barney. Mr de Newtown does not accept that such a relationship took place. He claims to have had a girlfriend throughout.[83]Working backwards, I make no finding about whether Mr de Newtown had a relationship with Ms Barney. There is essentially no evidence betore me either way other than the bare allegations from the parties. There is nothing on which I could found a decision.[84]I do not accept that the Claimant raised the allegation with Mr Woolf at any point before 13 September 2022. Had she done so I am confident (based on his response to her complaints of racism against Mr Standen) that Mr Woolf would have considered these matters. I note that in the Claimant’s application to amend in April 2022 she stated at paragraph 2 “she did not feel as if she could speak out or say anything to the Third Respondent or her colleagues, as the Second Respondent was her manager, and she was worried that it would result in her being dismissed from her job.” This is contained in a document drafted by lawyers, who must have been acting under specific instruction. The inconsistency of the Claimant on this point does affect the Claimant’s credibility as a witness.[85]Although not determinative, I would note that there is no evidence of the Claimant either raising the incident with Mr de Newtown or particularly seeking to avoid him. Their relationship appears externally to have been relatively good throughout. The Claimant did resent Mr de Newtown’s position as manager and felt both that she worked harder than him and was more knowledgeable than him. Accordingly, she was at times reluctant to take instruction from him. However, there is nothing to suggest personal dislike due to an incident of harassment. I say this fully accepting that there is no particular way that a victim of sexual harassment or assault can be expected to act.[86]On balance, I consider the most likely factual scenario here to be that Mr de Newtown gave the Claimant an “air kiss” after hugging her and that she misinterpreted this as a sexual advance. My reason for thinking this is the most likely scenario based on the very limited facts before me is for two reasons. First, I see no reason why Mr Huang would be dishonest in his evidence that the Claimant had told him about an incident at around this time. Second, I consider that Mr de Newtown is likely to be a more accurate witness than the Claimant in relation to this incident. I broadly found Mr de Newtown to be an honest and straightforward witness. By contrast, the Claimant’s evidence has been inconsistent in a number of ways. The Claimant has on several occasions before the Tribunal indicated a willingness to attribute discriminatory motivations to people because of either how they look at her or from facts that no inference of discrimination seems likely. This includes Zach not sitting with the Claimant on her birthday, Ms Johansdottir and her boyfriend looking at the Claimant in a funny way and the Claimant concluding that being asked for ID in a bar is because of race. Whilst I fully accept that there may be instances where individuals can detect a racist intent in how someone looks at them or from seemingly minor slights, it seems to me from those matters that the Claimant is prone to misinterpreting or overinterpreting matters and I think that is the most likely explanation for this matter. The Claimant was also inconsistent as to when she first raised the incident with Mr Woolf, and I find she is not telling the truth about that. Although it may seem minor, the Claimant’s credibility as a witness also suffered from her repeatedly asserting that Mr de Newtown was jealous of her knowledge of whisky and threatened by her and her denials that she thought she should have been managing the bar instead of Mr de Newtown. There is no evidence to support that Mr de Newtown was jealous of or particularly threatened by the Claimant (as opposed to concerned about her inability to get along with colleagues) and clear evidence that the Claimant did think she should have been managing the bar. Taken cumulatively, those matters of credibility lead me to prefer Mr de Newtown’s evidence as being more likely to be true.[87]I do not consider that an air kiss is unwanted conduct of a sexual nature. Alternatively, if it is sexual, it is not at a level, even taking into account the Claimant’s perception, where it was reasonable for it to have the prescribed effect on the Claimant. The Claimant has not really set out evidence as to the prescribed effect on her. As set out above, she appeared to have an openly friendly relationship with Mr de Newtown going forwards.[88]For the reasons set out above, the Claimant’s claims for sexual harassment fail and are dismissed. Pensions[89]The Claimant was auto enrolled in a Nest pension account. Contributions were deducted and paid into this pension. I am unclear on what basis there is said to be a claim before me on this matter. The Claimant essentially seems to have disputed that there were pension deductions made at all even though there clearly were. The claimant has contacted the Pensions Regulator.[90]The Tribunal does not have jurisdiction to consider this matter as a deduction from wages claim. Neither party made submissions on whether there was a breach of contract claim before me although this was the only way I could make sense of it. The Claimant led no evidence on this point. Whilst there is apparently a small shortfall due to an error by the First Respondent’s accountant, that is to be paid to the Claimant and that is not what her claim is about. The Claimant seems totally unaware of that shortfall. I am certainly not satisfied that there was a total failure to make pension contributions as the Claimant’s case appears to be.[91]The Claimant’s case for breach of contract in relation to pension contributions fails and is dismissed.