Mr M Gleave v Rochdale Training Association and others: 2400133/2017

EMPLOYMENT TRIBUNALS

Case No 2400133/2017

Between

Mr M GleaveClaimant

Rochdale Training Association and othersRespondent

Before

Employment Judge Tom Ryan

Date 6 July 2017

JUDGMENT

[1]The respondent’s application for the complaint of unfair dismissal to be struck out is granted. Reasons for that decision are reserved to be given in writing.

[2]The claimant has permission, with the consent of the respondents to amend his complaints of sex discrimination and harassment by the addition of a further allegation of harassment, allegation 7A, to the list of allegations set out in the order of Employment Judge Holmes sent to the parties on 8 May 2017. On the same factual basis as pleaded at allegation 7 the claimant may allege that he was subject to harassment contrary to section 26(3) of the Equality Act 2010.

[3]In respect of the allegations of direct sex discrimination and harassment, save for that now described as allegation 7A, the claimant is ordered to pay a deposit as a condition of proceeding with the claim. The details of the deposit order and the reasons for the making of that order are set out in a separate order.

REASONS

Introduction

[1]The claimant was ordered to pay deposits totalling £1000 in respect of the allegations identified above following a preliminary hearing held on 5 July 2017. The order was sent to the claimant on 13 July 2017.

[2]The claimant has failed to pay any of the deposits. Those complaints of direct sex discrimination and harassment are therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013.

[3]For the avoidance of doubt the Tribunal notes that at the preliminary hearing the claimant was permitted to amend his claim to include an additional allegation of harassment, allegation 7A, which was not made the subject of a deposit order and which remains to be determined at the hearing listed for 21 – 25 August 2017. JUDGMENT having been sent to the parties on 13 July 2017 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

[1]By a claim form presented to the Tribunal on 2 January 2017 Mr Gleave claimed that he was unfairly constructively dismissed, when he resigned from his employment on 10 October 2016. He also alleged he was discriminated against on the grounds of sex. The respondents resisted the claims.

[2]The matter has been considered three earlier preliminary hearings, and following the latest of those which took place on 19 April 2017 before EJ Holmes the respondents applied for the claims to be struck out as having no reasonable prospect of success or that the claimant be ordered to pay a deposit.

[3]The two claims, of unfair dismissal and discrimination were distinct although the events around them all relate to the ending of the claimant's engagement with the respondent.

[4]I record simply that I saw the documents in the bundle. I have heard the oral evidence of Mr Gleave in relation to the first part of the claim concerning his employment status. I heard submissions in relation to that, told the parties what my decision was and that I would give judgment and set out the legal and factual basis of that at the end of the hearing.

[5]I then heard the argument for and against the ordering of a strike out of any of the allegations of discrimination or the making of a deposit. I refused the application to strike out the allegations of discrimination but I ordered deposits. For completeness I record that the claimant subsequently failed to pay the deposits and those allegations, save one, were struck out subsequently for that reason.

[6]The remainder of these reasons concern my judgment that the claimant was not an employee for the purposes of bringing a claim of unfair dismissal.

[7]I was assisted by a skeleton argument from the respondents which identified the relevant authorities.

[8]I was satisfied on the balance of probabilities that the claimant was not an employee of the first respondent. I was satisfied that he did not have at any stage a contract of service which is the statutory test that has to be applied. My reasons for that finding are as follows.

[9]The first respondent provides a variety of training and assessment opportunities. The claimant appears to have joined the organisation in the late spring or the summer of 2014. There was no written document of the basis of his engagement at that stage. He elected for his own purposes, in relation to a tax difficulty that he had, to be paid on presentation of invoices. Again, for tax purposes apparently asked for the payment to be made to his partner’s bank account. Nothing turns on the ownership of the receiving bank account.

[10]The claimant wrote an email to Mr Beck, his line manager, on 1 September 2014 (page 81A) indicating what he needed and how he could earn money having regard to the possibility he might be made bankrupt because of action by HMRC. It turns out that HMRC has lost an appeal that Mr Gleave made and so his position financially is much more secure than it was.

[11]There were presented to me a series of invoices which indicate the sort of sums he was earning. He was paid a fixed rate per hour. It was originally £15 an hour and then latterly £20 an hour. I was also provided with an analysis (page 101A) of Mr Gleave’s hours between June 2014 and October 2016.

[12]In the first three or four months up until October 2014 he was working not at the first respondent’s premises but on a peripatetic basis providing assessment and training for apprentices, teachers, and those whom the first respondent served, and the hours that he worked were relatively limited, ranging between 12 and 33 hours a month. Thereafter the number of hours he worked increased and looking through the information, and I exclude the month of October 2016 because he did not work a full month, the hours were a minimum of 77 hours and in one month he worked as many as 153 hours. The claimant worked four days a week.

[13]There was a discussion about which hours he would work, but essentially it was a demand led business, and that is evidenced by the agreement into which the parties entered in July 2015 signed by Ms Nagy for the company and by Mr Gleave who was described as the “associate”.

[14]It is clear from that agreement that there was no obligation on the company to offer work of any particular kind or at any particular time, and there was no obligation upon the claimant to accept the offer of work.

[15]A number of other indications are present in the document. There was a requirement that the associate disclose all other providers for whom they are working and any new workthey obtain. There is no requirement exclusively to serve this company. It is clear that no part of the work to be carried out under the agreement could be subcontracted, given that it was subject to Ofsted inspection and there were regulatory requirements as to the performance of the work and delivery including, I understand it, DBS vetting. There was also an undertaking by the associate to indemnify the company against any liability, loss or damage arising from any negligence but no requirement to have in place insurance to support that. There was a non-solicitation clause and there was provision for termination. But there was no reference to employment, continuity of employment, or the start date of employment. Nor were any of other indications of employment such as notice in accordance with statutory provisions or for payment in respect of holidays.

[16]It is the first respondent’s case, and it was seriously disputed by the claimant, that some people are engaged by it under contracts of employment and some on this “associate” basis.

[17]It was further the claimant's evidence to me that although he would not in practice have refused work, because he was only working he tells me from June 2014 to the end of this contract for this company, he had in the past worked for others and he has subsequently worked for others.

[18]He had a LinkedIn page which suggested he was running a business, or at least acting on his own account, but he accepted in evidence that had he chosen to do so, when asked to take on a particular aspect of training he could have done so.

[19]In November 2015 there was email correspondence suggesting that he might if he wished take a contract, by which was understood a contract of service. He specifically declined that opportunity. It was financially advantageous to him not to do so.

[20]Those essential facts, relied upon in the first respondent’s argument, point to a finding which I now make that the irreducible minimum of mutual obligation, namely the obligation to provide work and the obligation to perform the work, were missing in this case.

[21]In my judgment, although he chose only at this time to work the Rochdale Training Association, this claimant was, so far as the definition of an employee is concerned in the Employment Rights Act 1996, not an employee because he did not work under a contract of service. For that reason the claim of unfair dismissal was struck out.

[1]The first respondent is a further education training provider. The second respondent is an employee of the first. The claimant was a tutor/assessor. He had an associate contract for services and was a contract worker for the purposes of section 41 of the Equality Act 2010.

[2]In his claim form, which was received on 2 January 2017, the claimant brought claims of constructive unfair dismissal, direct discrimination by reason of sex and unlawful harassment.

[3]The claims for constructive unfair dismissal, direct discrimination by reason of sex and various allegations of unlawful harassment were struck out by an order dated 3 August 2017 when the claimant failed to pay the deposits that had been ordered by Employment Judge Tom Ryan on 5 July 2017.

[4]The only claim remaining was an allegation of harassment, referred to as allegation 7A, on the same factual basis as pleaded at allegation 7. The claimant alleged that he was subject to harassment contrary to section 26(3) of the Equality Act 2010.

The Relevant Law

[5]Section 26 of the Equality Act 2010 deals with harassment and provides that:(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).

(3) A also harasses B if – (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(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.

(5) The relevant protected characteristics are – age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

The Evidence

[6]The claimant gave evidence on his own behalf. Mr John Huxley and Mrs Gill Nagy gave evidence for the respondents. There was a bundle containing in the region of 270 pages although the claimant added some further pages at the start of the hearing.

The Facts

[7]According to the claimant's witness statement, he says that he reported serious concerns regarding unwanted conduct of a sexual nature by an adult female learner aged 50 (hereafter referred to as “CD”) to John Huxley on 20 September 2016, with Gill Nagy present in the room for approximately five minutes.

[8]From the evidence of John Huxley, he was in his office when the claimant asked if he could have a word. He thought it strange because he was not the claimant’s line manager but he invited him in. The claimant informed him “in his usual colourful way” that there was a learner (CD) who had begun to make him uncomfortable. When giving the information the claimant did not appear to him to be distressed. Initially he spoke in general terms about CD stating she acted inappropriately towards him. He said she was more vocal than other learners and that she expected more attention than other learners. She had asked about his sex life and this surprised Mr Huxley. As the claimant continued to tell him about CD Mr Huxley observed that he smiled as he spoke and laughed occasionally. At best during certain points of the conversation the claimant’s appearance was, in the view of Mr Huxley, of mild concern about her behaviour.

[9]As the claimant continued to speak Mr Huxley formed the impression that the claimant flourished on her early attention; however by 20 September the claimant wondered whether she had gone too far and that it may have been time to take some advice.

[10]Gill Nagy, the first respondent’s CEO, came in and said the allegations were to be treated as serious and a permanent record of the allegation should be made and investigations needed to be carried out.

[11]On 21 September 2016 Mr Huxley prepared a note of the meeting and this note was subsequently signed by the claimant and Mr Huxley on 29 September 2016.

[12]According to the note: “Approached by Mark who felt the need to report what he considered to be inappropriate behaviour by a woman on the teaching assistants’ course he is delivering. He has been made to feel uncomfortable by her persistent direct questions regarding his marital status, intimate behaviours and relationship matters. He has minimised any contact outside the classroom but has faced further comments like ‘I can tell I’m not one of your favourites’ and further questions about eating establishments in his locality (some 20+ miles from her locality) during class time. I suggested to Mark:(1) He should record comments/approaches with dates where possible.

(2) He should take advice from Michelle Greenwood, safeguarding officer, on her return from holiday on 22 September 2016.”

[13]Gill Nagy in her witness statement said she heard the claimant tell Mr Huxley that a female was behaving inappropriately towards him in class and it appeared that the claimant was the subject of the learner’s attention. She did not remain in the room to overhear the entire conversation but she told them that she had concerns for both Mark and the learner and that the contents of the conversation should be recorded and the allegations may need to be investigated.

[14]It struck her that his report of CD’s attention was not made in a serious manner. According to her the claimant smiled and laughed as he repeated her actions but she did not consider it a laughing matter.

[15]Michelle Greenwood, safeguarding officer, was on annual leave until 22 September 2016. Shortly after her return Ms Nagy asked whether she was aware of the claimant's issue with CD and she was told that the claimant had mentioned CD in passing but had declined to make a formal complaint. Ms Nagy asked Michelle Greenwood to have a quiet word with CD.

[16]Although we did not hear from Michelle Greenwood there were in the bundle various documents that she had prepared. Some involved her discussions with CD and one was prepared in relation to a grievance investigation that will be referred to below.

[17]There was no formal complaint from the claimant but on 11 October 2016 Michelle Greenwood had a meeting with CD in relation to what were described as the issues the claimant had spoken publicly about in the Business Department Office to claim CD was demonstrating inappropriate behaviour in class. According to CD she had never been asked in class by the claimant to stop any inappropriate behaviour. Nothing at all had been said about it.

[18]As to visiting a particular pub, CD denied she had stalked him by following him to his local pub/restaurant. She did not remember crying in class. She did wear makeup in class to celebrate losing some weight. She did not ask the claimant for a contact number, nor did she ask to look at his phone, but he had shown her a picture of his girlfriend. Whilst she had taken numerous photographs of the board during lessons, the pictures were of the board not of the claimant. She said that the claimant had said in class to her that he felt “guilty for sinning with his new woman”. CD had asked him on a Christian basis if he was doing something against God and sleeping outside of marriage. CD said she asked this out of genuine concern as the claimant appeared “tortured” with guilt over his relationship and his drinking. CD said this happened on more than one occasion – his guilt and the fact he was a Jehovah Witness.

[19]After recording these comments Michelle Greenwood noted that: “As senior safeguarding officer for Rochdale Training I have spoken to both parties – Mark Gleave and CD – and do not believe the facts constitute sexual harassment. My recommendation for the safety of both parties is to remove CD from the class and to offer her 1-2-1 teaching with a different tutor. I told Mark Gleave on Monday 10 October about 2.00pm that CD will no longer be attending his class and I have arranged for another tutor to contact her to arrange 1-2-1 support.”

[20]On 5 October 2016 the claimant sent an email to CD saying that he had a number of safeguarding concerns regarding her in the Maths class. He had sought and taken advice from the safeguarding officer and from the Senior Executive and the Chief Executive at Rochdale Training and he removed from the course with immediate effect. He was to arrange to meet with Michelle Greenwood, safeguarding officer, to discuss his concerns.

[21]A copy of the claimant's email to CD went to Gill Nagy and she was concerned because in her view the tone and language was unnecessarily harsh and a number of staff members were copied in or referred to in the email in a matter that was sensitive and therefore confidential. She was concerned there may have been a breach of policy in withdrawing a learner from a class without due process being followed.

[22]On 10 October 2016 the claimant emailed Gill Nagy to give two months’ notice of termination of his contract. He wished the respondent all the best for the future. He had enjoyed himself immensely and it had been a creative and exciting time for him with the Association. Gill Nagy responded saying she was sorry to hear that, she thanked him for his hard work and for letting her know of his resignation.

[23]On 11 October 2016 the claimant sent an email to Gill Nagy and copied in his manager and Michelle Greenwood. He said that he was off sick as his stomach/intestinal complaint had flared up again and he was mentally drained, mainly “as a result of this situation and your off the record beratings regarding ‘that poor woman’ who has been sexually harassing me! I returned to work yesterday and told you I was recovering from diverticulitis and was not 100% (I still had my hospital bracelet on) yet that did not matter”. The claimant went on to say he had given in his notice as a result of her behaviour. She had tried to belittle him and publicly challenge the advice of the safeguarding officer in the corridor in front of learners who were passing by. If she could not support her staff over something this serious how could be continue to work there? The claimant then asked for a meeting with her but before the meeting he would like certain information and/or documentation. He had been advised that the actions of the learner constituted sexual harassment. He felt he had been discriminated against on the basis of his gender. He felt like screaming as loud as he could because he was so upset. He was in tears writing it because he was so upset. If it had been one of the female members of staff she would have acted very differently and this was not acceptable.

[24]On 20 October 2016 Jeremy Roberts, the first respondent’s Marketing Manager, wrote to the claimant saying that they had accepted his 11 October email as a formal grievance in accordance with the company’s grievance procedure. He was invited to attend a meeting on Wednesday 2 November 2016 when he would be given full opportunity to explain his case.

[25]It is apparent from the grievance outcome letter that the claimant did not meet with Mr Roberts and that his grievance was rejected.

[26]It was in the course of Mr Roberts investigating the claimant's grievance that he spoke to John Huxley on 19 October 2016 and in the bundle there is a note of their discussion.

[27]From the note Mr Huxley said he met with the claimant on one occasion only on 20 September 2016 when the claimant reported what he considered inappropriate behaviour by CD. He had been made to feel uncomfortable by her persistent direct questions on personal matters.

[28]The overall impression of John Huxley concerning the claimant was that he:  “Felt CD was expecting more of MGL [claimant] than other learners in the class.  Considered CD to be one of the more vocal characters in the group, to not be reserved or quiet like some of the others.  Was not stressed or upset by the attention from CD – rather more uncomfortable.  Was unsure if he was personally pleased or concerned that he was receiving this attention – given that MGL is a larger than life extrovert who naturally draws people’s attention.  Was possibly proud of the attention.  Had not been made to feel threatened by CD’s attention.  Appeared more than happy and not uneasy to wait for further advice from Michelle Greenwood (safeguarding officer) upon her return from holiday on 22 September.”

[29]Mr Huxley said he was aware that the claimant had taken steps to ensure there would be no 1-1 contact in class with CD. When the claimant signed the note he thanked Mr Huxley and did not appear stressed.

[30]Mr Huxley’s next contact with the claimant was in a corridor on 5 October 2016 when there was some discussion about the claimant's email of 5 October referred to above.

[31]Mr Huxley was not involved in the course of action regarding the removal of CD from the class or any emails.

[32]It would appear that Mr Roberts sent the claimant copies of the various statements that he had taken in the course of his investigation.

[33]Returning to the claimant's witness statement, he says that after reporting serious concerns to John Huxley on 20 September 2016 regarding unwanted conduct of a sexual nature by an adult female aged 50 (CD) he was completely “surprised, shocked, hurt and disgusted by JH’s statement in which he claims I was –  Possibly proud of the attention I had received off CD.  I may have been pleased and unconcerned by her actions.  That I suffered no stress and was not upset.”

[34]The claimant notes that Mr Huxley further states that concerning this serious matter “I naturally draw people’s attention”.

[35]According to the claimant he thought these statements were terrible as he had gone to report a serious matter which had been ongoing for months. He could not believe what had been written and said about him. He felt humiliation and that his dignity had been violated. The words used by Mr Roberts degraded him. They were very offensive and not true. He felt Mr Roberts was blaming and shaming him. He was deeply upset over his actions, thinking this was part of the way they worked at Rochdale Training, turning victims into culprits. He thought the safeguarding officers had abandoned their responsibilities.

[36]When he received a copy of the statement given by John Huxley to Mr Roberts he was off work with stress and stress induced diverticulitis. The comments made by Mr Huxley added to the claimant’s distress.

[37]On the day of the hearing the claimant produced a note dealing with safeguarding concerns regarding CD which was not in the original bundle. According to him he had provided it to his manager, Mr Beck, and to Michelle Greenwood and he showed a copy of the list to Mr Huxley who said that he had better keep hold of it.

[38]Mr Huxley told us that he had not seen this note until the day of the Tribunal.

[39]In the document, which is not dated, the claimant describes the behaviours of CD some of which appear in the Greenwood discussion described at paragraph 18 above. He records feeling extremely uncomfortable being near CD and that he cannot cope with her behaviour in class. He is constantly on edge and it is affecting his sleep.

[40]In his witness statement the claimant described how he had started arriving a couple of minutes before the lesson was due to begin and leaving as soon as he could at the end so that he would not be alone with CD. Learners, he stated, stayed behind with him so that he would not be alone with CD who tended to arrive first and leave last.

[41]Mr Huxley described in his statement how his first impression of the claimant was of a confident extrovert and an attention seeker with a high opinion of his own worldliness, abilities and appearance. Someone who believed himself to be talented and who regularly touted for recognition of his talent by others. He dressed to impress sometimes wearing unusual items but he was always neat and tidy. Submissions

[42]The respondents produced a written skeleton argument set out over 11 pages and 62 paragraphs.

[43]The claimant's representative made oral submissions.

[44]For the respondents reference was made to section 26(3) of the Equality Act 2010, submitting that the claimant was under an obligation to show that CD had engaged in unwanted conduct related to sex that had the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, and that Mr John Huxley treated him less favourably because of it. The burden of proof lies with the claimant.

[45]As to the facts, it was accepted that on 20 September 2016 the claimant spoke to John Huxley concerning CD behaving inappropriately. During the conversation the claimant smiled and at stages laughed when describing what occurred. Mr Huxley correctly advised the claimant to log the actions and make a report to the safeguarding officer, Michelle Greenwood. This was in accordance with the respondent’s policies on harassment and safeguarding. Notwithstanding this the claimant spoke with Ms Greenwood but did not make a formal complaint. He wrote to the learner, expelling her from the class. She was required to meet with Michelle Greenwood to discuss his concerns.

[46]After Ms Nagy told the claimant that he should not have done what he did in terms of expelling the learner. The claimant resigned then raised a grievance.

[47]CD was interviewed by Ms Greenwood and Ms Greenwood took the view that there was no sexual harassment involved.

[48]Mr Roberts then interviewed Mr Huxley on 19 October 2016 as set out in the meeting note.

[49]The respondents assert there are no issues of fact on which the claimant can successfully rely to prove that Mr Huxley is liable for the discriminatory conduct complained of. The claimant must establish that CD’s comments were unwanted and had the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. As to that conduct CD made enquiries about the claimant’s wellbeing out of concern for him. They engaged in conversations about his religion and his intimate and social life. This could not be unwanted conduct. The claimant has not proved that harassment occurred.

[50]Any question about his sex life was on a Christian basis therefore was not related to the claimant's sex. After further discussion concerning the actions of CD it was submitted that if the claimant perceived her actions amounted to harassment then under section 26(4) the claimant’s perceptions were unreasonably held.

[51]There was reference to Lord Justice Underhill at paragraph 22 of Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

: “We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and Tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[52]The submission is that there is no objective evidence to prove the claimant perceived the actions of CD as harassment given the way he smiled and laughed when raising the issue with Mr Huxley, and thereafter failed to raise a formal complaint.

[53]Turning to the comments of Mr Huxley recorded on 19 October 2016, the observation of Mr Huxley that the claimant may have been proud of CD’s attention was not evidence of less favourable treatment by reason of sex on the grounds that if a female assessor acted in the same manner as the claimant Mr Huxley would have had the same feeling of uncertainty regarding her motivation. In determining whether Mr Huxley’s conduct amounted to less favourable treatment the Tribunal is guided to consider what prevailed in his mind at the time he made the comment. He commented as be did because of the claimant's own conduct, smiling and laughing, when reporting CD’s behaviour and failed to make a formal report. The comments were based on the claimant's smiling and laughing conduct. It is therefore denied Mr Huxley treated the claimant less favourably than he would have treated a woman who responded similarly to the claimant.

[54]In the submission of the respondents the claimant's only evidence of discrimination is his strong feeling that he was discriminated against. Such a feeling does not of itself show discrimination and the Tribunal ought not to infer it where there is insufficient evidence from the claimant.

[55]The brief submission for the claimant was that the Tribunal should take the claimant's evidence of the harassment at face value. There was nothing to suggest anything had been fabricated.

Discussion and Conclusions

[56]The wording of section 26 has been set out above. We are concerned here with subsection (3) with the first question: has A (respondent) or another person (the learner, CD) engaged in unwanted conduct of a sexual nature or that is related to sex?

[57]We conclude that the learner had engaged in unwanted conduct on the basis that the claimant specifically went to see Mr Huxley, who was not his line manager, to inform him of this conduct. Had it been wanted conduct then in our judgment there would have been no report

[58]Was the conduct of a sexual nature? Mr Huxley’s note of his meeting with the claimant on 20 September 2016, signed by both of them, says that: “He has been made to feel uncomfortable by her persistent direct questions regarding his marital status, intimate behaviours and relationship matters.”

[59]We take the view that these words are referring to conduct of a sexual nature, looking particularly at the words “intimate behaviours and relationship matters” which were chosen by Mr Huxley to describe what was reported to him by the claimant.

[60]Did the conduct have the purpose of effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? We have not received evidence from the learner but on the basis of what she is reported to have said to Michelle Greenwood we cannot find that her conduct had the purpose of harassing the claimant.

[61]However, did it have the effect of harassing him? When considering whether the conduct has the effect referred to we must take into account the perception of the claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[62]The claimant’s evidence in chief deals with his feelings after becoming aware of the comments made by John Huxley rather than his feelings consequent upon the actions of the learner. Thus there is no direct evidence as to how the conduct of CD affected him with reference to his dignity or the creation of an intimidating, hostile, degrading, humiliating or offensive environment for him.

[63]The claimant does refer in his witness statement to stress induced diverticulitis induced by how badly the respondent had treated him and the learner’s unwanted conduct, but this does not in our judgment go so far as to give evidence as to how the conduct affected him in terms of the matters set out in section 26(1)(b)(i) and (ii).

[64]As to the claimant's perception we know that he felt sufficiently strongly to report matters to Mr Huxley. As to other circumstances, the claimant did not make a formal complaint to the safeguarding officer although he did speak to her informally. He started arriving at school only a couple of minutes prior to teaching and leaving as soon as he could thereafter with other learners staying behind so he would not be alone with CD. The claimant excluded CD from the class.

[65]Looking at these circumstances we conclude that it is more likely than not that an intimidating atmosphere was created and that it was reasonable for the learner’s conduct to have had that effect upon the claimant.

[66]Subsection (3)(c) refers to A harassing B if, because of B’s rejection of the conduct, A treats B less favourably than A would treat B if B had not rejected the conduct.

[67]The less favourable treatment relied upon by the claimant is represented by the statement of Mr Huxley to Mr Roberts, when Mr Roberts was enquiring into the claimant's grievance.

[68]There is no doubt that the words used by Mr Huxley can amount to “treatment” of the claimant, but is the treatment less favourable than it would have been had the claimant not rejected the conduct?

[69]Looking again at the notes of the meeting when Mr Huxley expressed his views as to his overall impression of the claimant and how he presented himself on 20 September 2016, we find that Mr Huxley’s comments were neither more nor less favourable because the claimant had or had not rejected the conduct of the learner. In our judgment Mr Huxley’s comments were only made because he was asked questions by Mr Roberts and he took the opportunity to voice his opinions on the claimant.

[70]Mr Huxley had got to know the claimant over the two years when the claimant was involved with the first respondent and had formed an adverse opinion of him. The behaviour of the claimant when he came to report matters on 20 September 2016 was consistent with how Mr Huxley had perceived the claimant to be over the preceding two years with regard to his character.

[71]In conclusion we cannot find any causal link between the less favourable treatment and the conduct complained of and so the claimant’s claims fall to be dismissed at the final stage of our examination of section 26(3) of the Equality Act. Employment Judge Sherratt 30 October 2017