Ms S M L Heras v MAC Clinical Research Financial Ltd and SMO Services Ltd: 2402071/2024

EMPLOYMENT TRIBUNALS

Case No 2402071/2024

Between

Ms S M L HerasClaimant

MAC Clinical Research Financial Ltd and SMO Services LtdRespondent

Before

Employment Judge Ainscough

Date 15 April 2026

JUDGMENT

[1]The complaint of harassment related to sex is unsuccessful and is dismissed.

[2]The complaint of direct sex discrimination is unsuccessful and is dismissed.

[3]The complaint of victimisation is unsuccessful and is dismissed.

REASONS

[1]The claimant worked as the clinical pathology director for the second respondent, a clinical research company from 5 September 2022 until 14 November 2023.

[2]The claimant is Spanish and English is not her first language. The claimant was assisted during the course of the hearing by an interpreter.

[3]The first day of the final hearing took place by way of the Cloud Video Platform format. Unfortunately, the Tribunal was unable to locate the file of documents until late in the afternoon on the first day and therefore, the Tribunal was unable to start live evidence until the second day of the final hearing. At the end of day one, the Tribunal made the decision to convert the final hearing into an attended hearing for all parties.

[4]When the claimant issued her ET1 claim form she named three respondents: the second respondent and Mr Khan and Dr Harrison. However, the claimant only pursued ACAS Early Conciliation against the first respondent. As a result, the Tribunal recorded the first respondent as the respondent and rejected the claim against the second respondent, Mr Khan and Dr Harrison.

[5]The Tribunal considered the notes of the case management preliminary hearing prepared by Employment Judge Humble on 2 December 2024. At that hearing the second respondent was added as a party to the proceedings. Mr Khan and Dr Harrison were not added as individual respondents and the Tribunal has not considered the claim against them as individual respondents.

[6]During the search for the file of documents on day one, the parties were asked to confirm the list of issues. On receipt of the parties agreed list of issues, a complaint of unfair dismissal had been included. However, the Tribunal removed that complaint from the list of issues as it was not one that was pursued by the claimant, nor one that Employment Judge Humble had identified as one of the legal issues that had to be determined.

[7]The parties asked that the first issue that the Tribunal determine was whether the first respondent or the second respondent was the claimant’s employer. The Tribunal agreed to make this determination.

Evidence

[8]The parties struggled to agree the evidence before the Tribunal. Whilst the Tribunal had access to the file of documents that had been collated from both parties’ documents, the claimant also submitted further documentation at the outset of the hearing.

[9]The Tribunal heard evidence from the claimant who was assisted by an interpreter. The Tribunal also heard evidence from Mr Khan, the executive vice president of operations and the claimant’s line manager, Ms Phillips the second respondent’s head of human resources, Dr Harrison the second respondent’s laboratory director, Dr Dale the chief executive officer of the first and second respondent and finally Mr Jenkins, the vice president of the second respondent.

Issues

[10]The list of issues was as set out by Employment Judge Humble at the case management preliminary hearing on 2 December 2024 and is contained in the Annex to this judgment.

[11]The claimant provided detailed further information for issue1.1 and

1.2 to which the respondents provided a detailed response. The Tribunal has considered both documents when reaching a determination of those issues. Relevant Findings of Fact Roles and responsibilities

[12]The claimant was employed by the second respondent on 5 September 2022 as the clinical pathology manager.

[13]On 12 September 2022 Dr Harrison was employed by the second respondent as the bioanalytical services manager.

[14]Both were employed to assist the second respondent in setting up a clinical trial testing laboratory. This involved employing other team members setting up an information management system and purchasing the requisite laboratory equipment.

[15]The Tribunal has determined that at the outset of their employment, the claimant and Dr Harrison were peers and reported directly to Mr Khan the executive vice president of operations for the respondent.

[16]In November 2022, Dr Harrison was diagnosed with a serious illness and was allowed to work from home to undergo treatment.

[17]On 14 November 2022 the claimant requested an urgent meeting with Dr Harrison when he was working from home. Dr Harrison attended at the second respondent’s site and queried the need for the face-to-face meeting. Dr Harrison was told by the claimant she just wanted to say hello and that there was no urgency.

[18]The second respondent sought to attain a particular compliance and accreditation standard for the new laboratory. It was initially agreed with the claimant and Dr Harrison that the second respondent would pursue a particular accreditation. However, the second respondent subsequently decided to pursue a different accreditation and informed the laboratory team (including the claimant) of the change.

[19]In order to achieve the necessary accreditation, the second respondent had to identify a laboratory director. As a result, on 30 November 2022 the second respondent nominated Dr Harrison to be the bioanalytical laboratory director with overall responsibility for the laboratory. Dr Harrison was more experienced than the claimant with 30 years experience working in laboratories and setting up laboratories.

[20]As a result of this change, the Tribunal has determined that Dr Harrison was responsible for the laboratory which was made up of two teams, the bioanalytical team and the safety team (clinical pathology). The Tribunal has determined that this meant that the claimant whilst retaining her position as the clinical pathology manager, became subordinate to Dr Harrison as the laboratory director.

[21]On 17 February 2023 the claimant’s job title changed to that of clinical pathology director as it was a requirement of the accreditation and compliance standard that the claimant’s title be that of director. However, the Tribunal has determined that the claimant’s job did not change, and Dr Harrison retained overall responsibility of the laboratory. Laboratory structure

[22]Dr Harrison and the second respondent determined that there should be a third team to deal with the receipt of samples. The claimant disagreed.

[23]Dr Harrison gave evidence that the claimant missed deadlines which impacted on the second respondent obtaining the necessary accreditation for the laboratory.

[24]Mr Jenkins gave evidence that in or around March 2023, Dr Harrison approached him to say that he was having an awful time with the claimant and was thinking of resigning.

[25]Dr Harrison gave evidence that the claimant was annoyed that he had been appointed as laboratory director and sought to make his life difficult and he expressed his upset to Mr Khan.

[26]On 9 May 2023 Pedro Mataloto was also employed in the safety team with a specialism in biochemistry. The claimant was initially told she would eventually become his line manager. However, on the appointment of Mr Mataloto, the second respondent determined that Mr Khan would retain line management responsibility.

[27]It was necessary for the laboratory to implement a quality management system. This meant that all teams had to draw up standard operating procedures. The accreditation and compliance standard required that all procedures were checked and approved by a number of individuals within the laboratory.

[28]Mr Khan and Dr Harrison gave evidence that those preparing the standard operating procedures placed them on a shared drive so that all members of the laboratory could access them so that they could be checked and reviewed in accordance with the requirements.

[29]The Tribunal has determined that the claimant did not upload the standard operating procedures on which she worked to any shared drive and therefore members of the laboratory were unable to access those standard operating procedures in order to check and review in accordance with the requirements. The claimant gave evidence that she did not want to upload any draft standard operating procedures and would only have uploaded them when they were complete.

[30]Part of the set up of the laboratory required the purchase of equipment. Members of the laboratory including the claimant, were required to research the equipment that was specifically required for their specialist areas. However, Mr Khan and Dr Harrison were clear in their evidence that the purchase of such equipment was the responsibility of the laboratory director Dr Harrison.

[31]The Tribunal has determined that given Dr Harrison’s position, it would have been his responsibility to meet with equipment providers and not within the claimant’s remit.

[32]On 10 July 2023 Ms Tahir-Shinwari became a member of the laboratory team and the claimant became her line manager. Mr Khan as the claimant’s line manager, had input into the management of Ms Tahir-Shinwari. Claimant’s complaints

[33]On 16 August 2023 the claimant contacted Ms Phillips to complain about disrespectful behaviour. Ms Phillips advised the claimant to raise a grievance and provided her with a copy of the grievance policy.

[34]Ms Phillips and the claimant spoke on 22 August 2023. During the call the claimant repeated her concerns but confirmed she did not want to raise a grievance. Ms Phillips agreed to go away and speak to the claimant’s colleagues.

[35]Ms Phillips discovered that the laboratory team was not working well together, and the claimant’s colleagues found the claimant difficult to work with.

[36]Ms Phillips spoke with Mr Khan who confirmed that he had had difficulty in getting the team to work with each other.

[37]On 12 September 2023 Ms Phillips attended at a team meeting and carried out a mediation. During the meeting, Ms Phillips challenged the claimant about the standard operating procedures not being saved on a shared drive. Ms Phillips recalled that the claimant struggled to take any feedback about improvements in her performance.

[38]During the meeting the claimant shared with her colleagues how she felt disrespected and Ms Phillips was of the view that the matter had been resolved by the end of the meeting.

[39]On 3 November 2023 the claimant contacted Ms Phillips and informed her that she was unhappy with the way Mr Khan had treated the claimant. The claimant told Ms Phillips that she did not want to raise a grievance but asked her to look into the matter. The claimant followed up the call by sending an email to Ms Phillips on the same day stating that she felt that Dr Harrison was trying to remove her from the laboratory team.

[40]The claimant sent a second email on 6 November 2023 querying whether Ms Phillips had had an opportunity to escalate her complaints.

[41]On 7 November 2023 the claimant approached Mr Jenkins and Mr Khan in the boardroom. The claimant covertly recorded the conversation. The claimant spoke to both of her colleagues but Mr Khan, did not respond to any of the claimant’s queries about whether they were happy with her work.

[42]On 7 November 2023 the claimant raised further issues with Ms Phillips about Mr Khan. Ms Phillips reminded the claimant that she could raise a grievance but the claimant chose not to do so. Claimant’s dismissal

[43]In August 2023 the second respondent was in financial difficulty as a result of delays caused by the Medicines Health Products and Regulatory Agency.

[44]In September 2023 Ms Phillips was asked to identify where money could be saved through roles being removed or absorbed. At the same time all recruitment activity was paused.

[45]The second respondent subsequently submitted the HR1 form to the Insolvency Service in order to give the necessary notification for potential redundancies.

[46]Ms Phillips was informed by Mr Khan that the claimant’s role could be absorbed into other roles. The rationale given by Mr Khan to Ms Phillips was that the laboratory did not require two directors for the accreditation. It was Mr Khan’s view that the claimant’s responsibilities could be absorbed by other members of the team.

[47]On 14 November 2023 the claimant was informed that her role was to be made redundant with immediate effect. Ms Phillips escorted the claimant from the respondent’s site.

[48]The claimant was provided with further information as to the rationale for her termination of employment on 24 November 2023. Relevant Legal Principles

[49]Discrimination in employment is prohibited by section 39(2) Equality Act 2010: “An employer(a) (A) must not discriminate against an employee of A's

(b) (B) – (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment.”

[50]Harassment during employment is prohibited by section 40(1)(a). Burden of Proof

[51]The burden of proof provision appears in section 136 and provides as follows: “(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But sub-section (2) does not apply if A shows that A did not contravene the provision”.

[52]In complaints of harassment, it is necessary for the claimant to establish that the conduct was unwanted and violated their dignity/created the offensive environment before the burden of proof will shift to the respondent.

[53]The claimant will only do this if, they are able to prove facts to suggest conduct could be related to a protected characteristic.

[54]In Fraser v Leicester University and others

(2013) ICR 0155

EAT, the Employment Appeal Tribunal determined that is permissible for a Tribunal to take a holistic view of the facts when deciding if the claimant has proven such facts to shift the burden of proof.

[55]In Anya v University of Oxford and another

(2001) ICR 847

, CA, the Court of Appeal concluded that unreasonable behaviour will not be discrimination unless it is possible to draw an inference that it is because the respondent has no explanation for the behaviour.

[56]In Hewage v Grampian Health Board

[2012] ICR 1054

the Supreme Court approved guidance given by the Court of Appeal in Igen Limited v Wong

[2005] ICR 931

, as refined in Madarassy v Nomura International PLC

[2007] ICR 867

where Mummery LJ held that “could conclude”, in the context of the burden of proof provisions, meant that a reasonable Tribunal could properly conclude from all the evidence before it, including the evidence adduced by the complainant in support of the allegations, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.

[57]Importantly, at paragraph 56, Mummery LJ held that the bare facts of a difference in status and a difference in treatment are not without more sufficient to amount to a prima facie case of unlawful discrimination. However, whether the burden of proof has shifted is in general terms to be assessed once all the evidence from both parties has been considered and evaluated. In some cases, however, the Tribunal may be able to make a positive finding about the reason why a particular action is taken which enables the Tribunal to dispense with formally considering the two stages.

[58]Section 13(1) defines direct discrimination as: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[59]In the case of Shamoon v Chief Constable of the Royal Ulster Constabulary

(2003) ICR 337

,HL, the House of Lords determined that a Tribunal does not have to answer each element of the test sequentially. A Tribunal can determine the reason for the alleged treatment in order to establish if the claimant has been treated less favourably. Less favourable treatment

[60]The Tribunal will decide from an objective point of view what amounts to less favourable treatment. The claimant’s perception of the less favourable treatment is a factor which will be considered in making this decision.

[61]In the case of Chief Constable of West Yorkshire Police v Khan

(2001) ICR 1065

, HL the House of Lords said that a difference in treatment will not amount to less favourable treatment unless it has a quality about which the claimant can reasonably complain. The House of Lords also said the treatment can still be less favourable even if the claimant does not suffer a disadvantage. The claimant can reasonably say they would have preferred not to have been treated differently. Comparator

[62]For the purposes of the comparison required between cases in the direct discrimination claim, section 23 of the Equality Act 2010 provides that “there must be no material difference between the circumstances relating to each case.”

[63]In Shamoon the House of Lords said: “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class”.

[64]In Governing Body of Sutton Oak Church of England Primary School and others v Whittaker EAT (2018) 0211, the Employment Appeal Tribunal determined that any material circumstances have to be taken into account when the Tribunal assesses whether a comparator has been treated more favourably. In this case the EAT concluded that the claimant’s previous behaviour was a material circumstance which should have been attributed to the hypothetical comparator when this question was answered i.e. would the hypothetical comparator who had previously behaved in the same way as the claimant have been treated more favourably?

[65]The Equality and Human Rights Commission Code of Practice on Employment (2015) states at paragraph 3.23: “It is not necessary for the circumstances of the two people to be identical in every way; what matters is that the circumstances which are relevant to the treatment of the worker are the same or nearly the same for the worker and the comparator.”

[66]At paragraph 3.25 it states: “in some cases a person identified as an actual comparator turns out to have circumstances that are not materially the same. Nevertheless, their treatment may help to construct a hypothetical comparator.”

[67]In Shamoon, the House of Lords said the correct comparator was, where the claimant had been removed from her role by her line manager following complaints about the way in which she performed her role, a male colleague with the same line manager who had been subject to similar complaints.

[68]In Shamoon the House of Lords also said that a Tribunal must not lose site of the real question in any direct discrimination complaint – what was the reason for the claimant’s treatment?

[69]In the case of Law Society and other v Bahl

(2003) IRLR 640

, EAT, the Employment Appeal Tribunal determined that once this question is answered it may not be necessary to specifically construct the hypothetical comparator because if the protected characteristic was the cause of the treatment, the circumstances of the hypothetical comparator will be more apparent. If the protected characteristic is not the cause of the treatment it won’t be necessary to carry out the comparison. It was however accepted by the EAT that a provisional view of the hypothetical comparator may well assist the Tribunal in answering the reason why question. Because of a protected characteristic

[70]In the case of Gould v St John’s Downshire Hill

(2021) ICR 1

, EAT, the Employment Appeal Tribunal determined: “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… [and] the influence of the protected characteristic may be conscious or subconscious.”

[71]In the case of R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and others

(2010) IRLR 136

, SC, the Supreme Court determined that discriminatory decision can be inherently discriminatory or discriminatory because of the subjective view of the decision maker.

[72]In Nagarajan v London Regional Transport

(1999) ICR 877

, HL, the House of Lords concluded: “Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”

[73]The EHRC Code of Practice on Employment (2015) at paragraph 3.14 states: “Direct discrimination is unlawful, no matter what the employer’s motive or intention, and regardless of whether the less favourable treatment of the worker is conscious or unconscious.”

[74]At paragraph 3.11 it states that a protected characteristic: “needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause.”

[75]In the case of Chief Constable of West Yorkshire Police v Khan

(2001) ICR 1065

HL, the House of Lords said when determining a complaint of subjective discrimination, the question the Tribunal should answer is why did the respondent act in the way that it did?

[76]The definition of harassment appears in section 26 which so far as material reads as follows: “(1) A person(a) (A) harasses another

(b) (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for 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 section 1(b). (4) In deciding whether conduct has the effect referred to sub-section (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…sex”. Unwanted conduct

[77]The EHRC Code of Practice on Employment (2015) paragraph 7.8 states that unwanted means unwelcome or uninvited and at paragraph 7.7 can cover a wide range of behaviour.

[78]In the case of Urso v Department for Work and Pensions

(2017) IRLR 304

, EAT the Employment Appeal Tribunal confirmed that a dismissal can amount to unwanted conduct.

[79]In the case of Thomas Sanderson Blinds Ltd v English (2010) 0316, EAT, the Employment Appeal Tribunal stated that it is an assessment of what the claimant deems to be unwanted. Violation of dignity/intimidating, hostile, degrading, humiliating or offensive environment

[80]Whether unwanted conduct has violated a claimant’s dignity is a question of fact. In the case of Betsi Cadwaladr University Health Board v Hughes and others (2013) 0179 EAT, the Employment Appeal Tribunal determined that it was insufficient to prove that the claimant’s dignity had been hurt, violation required proof of serious effects.

[81]In the case of Weeks v Newham College of Further Education (2011) 0630, EAT, the Employment Appeal Tribunal concluded that environment means a state of affairs, even if caused by a one off incident, the effects of which last for a period of time.

[82]The Tribunal must examine whether it was the purpose or effect of the unwanted conduct that violated the claimant’s dignity or created the necessary environment. In so doing the Tribunal will need to consider the respondent’s intention to establish a purpose.

[83]The Tribunal will need to consider the claimant’s perception to assess whether the conduct caused the necessary environment, if it was not the purpose of the respondent. The claimant will only be successful if it was reasonable for the conduct to have that effect.

[84]In Pemberton v Inwood

(2018) ICR 1291

, CA, the Court of Appeal determined that a claimant must prove they perceived a violation of dignity or the necessary environment. If so, the Tribunal must then consider all other circumstances of the case and whether such a perception was reasonable.

[85]Paragraph 7.18 of the EHRC Code of Practice on Employment (2015) sets out the relevant other circumstances such as the claimant’s health and capacity, cultural norms and the environment in which the conduct takes place. Related to a protected characteristic

[86]In the case of Carozzi v University of Hertfordshire (2024) 169 EAT, the Employment Appeal Tribunal determined that it is not necessary to prove that the respondent meant to treat the claimant in such a way because of a protected characteristic.

[87]It is often necessary for the Tribunal to consider the circumstances of the case and draw an inference that the conduct was related to the protected characteristic if the respondent has not proven that it was not related. Victimisation

[88]Section 27 provides that a person victimises another if they subject that other person to a detriment because they have done a protected act. Protected act

[89]Section 27(2) defines a protected as: “(a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act”

[90]In Beneviste v Kingston University (2005) 0393 EAT, the Employment Appeal Tribunal confirmed that a grievance could not amount to a protected act if the claimant did not suggest that the complaint was an allegation of discrimination.

[91]In Fullah v Medical Research Council and another (2012) 0586 EAT, the Employment Appeal Tribunal determined that a claimant does not have to identify the protected characteristic in any complaint, but the context of the complaint must indicate that a complaint is made on that basis.

[92]In Kokomane v Boots Management Services Ltd (2025) 38 EAT, the Employment Appeal Tribunal stated that in order to prove a protected act, it is not necessary to show that specific reference was made to an act of discrimination but rather what was asserted was capable of amounting to an act of discrimination.

[93]A complaint will still be a protected act, even if the nature of the complaint is subsequently not proven, provided it is made in good faith, in accordance with the case of HM Prison Service and others v Ibimidun

(2008) IRLR 940

EAT. Reason for the detriment

[94]In the case of Chief Constable of West Yorkshire Police v Khan

(2001) ICR 1065

, HL the House of Lords said it was necessary to identify the real reason for the detriment complained of when considering whether the detriment was caused by a protected act.

[95]The burden of proof requires the claimant to prove facts from which the Tribunal could conclude that the claimant suffered a detriment because of a protected act. If such facts are proven, the burden then shifts to the respondent to prove any explanation for the cause of the detriment. Submissions Claimant’s Submissions

[96]The claimant submitted that she was treated less favourably when Dr Harrison’s decisions was supported in areas where the claimant had superior knowledge.

[97]The claimant also submitted that Mr Khan managed her out of her role and replaced her with Mr Mataloto.

[98]The claimant maintained that she worked in a hostile environment where “aggressive male behaviours were tolerated” and complaints about this behaviour were ignored.

[99]The claimant submitted that after she and another raised a complaint about her treatment, she was dismissed.

[100]The claimant contended that the respondent’s witnesses lacked credibility and had gone as far as misleading the Tribunal.

[101]The claimant submitted that the respondent has sought to withhold documents from the Tribunal and acted unreasonably during the course of the hearing. Respondents’ submissions

[102]The respondents submitted that the second respondent was the claimant’s employer and would therefore be liable for any unlawful acts.

[103]The respondents maintained that the claimant’s dismissal was because of the financial difficulties the second respondent faced and the need to cut staff numbers and was not because of the sex of any of those who were dismissed.

[104]The respondents contended that the claimant was given the opportunity to raise a grievance about her treatment but chose not to do so and only complained of unlawful discrimination after the termination of her employment.

[105]The respondents submitted that the claimant targeted Dr Harrison in an attempt to discredit him. The claimant sought to hide critical information from Dr Harrison and has altered the content of emails to paint both Dr Harrison and Mr Khan in an unfavourable light. The claimant also covertly recorded her colleagues.

[106]The respondents maintained that the set up of the laboratory evolved over time which meant that there were changes to the structure and this included the claimant’s promotion to clinical pathology director.

[107]The respondents contended that the claimant’s work was challenged to ensure it was correct and to protect the health and safety of participants and was not related to the claimant’s sex.

[108]The respondents submitted that the claimant had failed to give any specific examples of harassment.

[109]The respondents submitted that the claimant was not treated less favourably than Dr Harrison. Dr Harrison had more experience than the claimant.

[110]The respondents maintained that the claimant did not raise any complaint about discrimination prior to the termination of her employment. Discussion and Conclusions Did Mr Khan and Dr Harrison hide critical information from the claimant between September 2022 until November 2023.

Discussion and Conclusions

[111]The Tribunal has determined that when the second respondent decided to appoint Dr Harrison as the laboratory director in November 2022, he became involved in meetings at which the claimant was not required. The claimant’s role did not change but the role of Dr Harrison did change and he absorbed more responsibility.

[112]Mr Khan was Dr Harrison’s direct line manager and with overall responsibility of the project, met more frequently with Dr Harrison to discuss matters that were not within the claimant’s remit.

[113]When the claimant and Dr Harrison joined the respondent, it was to assist the respondent with setting up the laboratory. Initially the laboratory was in a state of flux in terms of responsibilities as the project developed. The Tribunal has determined that at the outset of the laboratory project the claimant was heavily involved in all decisions, but by November 2022 her role became more defined with responsibility for the safety team whereas Dr Harrison’s role was defined as responsibility for the laboratory as a whole.

[114]Mr Khan gave evidence that in order to receive the necessary accreditation, the respondent needed to appoint one laboratory director who had overall responsibility for the laboratory and this was given to Dr Harrison because of his extensive experience.

[115]In line with Dr Harrison’s new authority, from November 2022 he had authority to alter the laboratory service structures, create the sample reception team and had overall responsibility for the laboratory information management system. Dr Harrison was clear in his evidence that each topic was discussed with the claimant and other team members during team meetings.

[116]The Tribunal has determined from the evidence given by the respondent’s witnesses that Pedro Matalato was the claimant’s peer and not subordinate to the claimant’s authority. Mr Khan gave evidence that in order to set up the laboratory it was necessary to employ a biochemist scientist and that he was Pedro Matalato’s line manager.

[117]Mr Khan was subsequently informed by Dr Dale that he would remain as Mr Mataloto’s line manager and this task would not be transferred to the claimant as initially anticipated. As a result, the Tribunal has determined that it was also appropriate for Mr Khan and Mr Mataloto to meet about Mr Mataloto’s specific remit without the claimant present.

[118]There is no doubt that for the claimant, not being involved in every meeting was unwanted conduct.

[119]However, the claimant has not met the burden of proof because she has not proven facts from which the Tribunal could conclude, in the absence of any other explanation that such conduct was related to her sex. In accordance with Madarassy whilst the claimant has proven unwanted conduct and a difference in treatment, she has not proven facts which could amount to unlawful discrimination.

[120]The Tribunal has accepted the second respondent’s evidence that the claimant’s role became more defined as the structure of the laboratory became more defined, and this was the reason she was no longer required to attend every meeting. In May 2023 she was not required to manage Pedro Mataloto.

[121]There was a difference in treatment between the claimant and Dr Harrison but the reason for this change was because Dr Harrison was appointed as the laboratory director and assumed more responsibility than the claimant.

[122]The claimant identified Dr Harrison as the appropriate comparator. In accordance with Shamoon, Dr Harrison is not the appropriate comparator as by 30 November 2022 he was no longer in the same position in all material circumstances as the claimant. Dr Harrison was the laboratory director and assumed more responsibility.

[123]The appropriate hypothetical comparator is a male clinical pathology manager. The Tribunal has determined that such a comparator would have been subject to the same treatment as the claimant because the reason for the claimant not attending every meeting was because her role had become more defined and because Dr Harrison became the laboratory director.

[124]Therefore, the claimant was not treated less favourably. Was Dr Harrison rude to the claimant, did he undermine the claimant, did he ignore her, did he dismiss her ideas and did he exclude her from decision making?

[125]The Tribunal has already determined that Dr Harrison did not hide critical information from the claimant. Any exclusion perceived by the claimant was as a result of the change in job function between the two. Dr Harrison had more responsibility, and this led to him being involved in more meetings than the claimant whereas at the outset, they had both been equally involved in meetings.

[126]The claimant has provided details of when she said she was ignored or her suggestions were dismissed prior to Dr Harrison becoming the laboratory director on 30 November 2022. The Tribunal has determined on the balance of probabilities that the claimant was upset when not every suggestion she made was accepted or adopted. Dr Harrison was clear in his evidence that all matters were discussed at team meetings but ultimately a decision had to be made.

[127]It is clear from 30 November 2022 onwards the claimant was clearly unhappy about the change to the structure and this led to the relationship with Mr Khan and Dr Harrison becoming strained and fractious. Dr Harrison had spoken to both Mr Khan and Mr Jenkins about the difficulties he had experienced with the claimant and had even considered resigning.

[128]The Tribunal has determined on the balance of probabilities that given the strained relationship between the claimant, Dr Harrison and Mr Khan, Mr Khan and Dr Harrison did ignore the claimant as they didn’t know how to deal with her frustrations and upset.

[129]The Tribunal has already determined that Pedro Mataloto was a peer to the claimant. The claimant felt undermined when he was treated as a peer because it had been suggested that she would eventually be his line manager.

[130]The Tribunal has determined that ignoring the claimant and not making her Mr Mataloto’s line manager, was unwanted conduct. In accordance with the case of English, the Tribunal accepted the claimant’s evidence.

[131]The claimant has not proven facts from which the Tribunal can conclude in the absence of evidence from the respondent, that the reason for Mr Khan and Dr Harrison ignoring the claimant was related to her sex. Instead, the Tribunal has made findings that on the balance of probabilities, the reason they ignored her was because she was very vocal about her frustrations and upset in team meetings. This is clear from the covert recording made by the claimant on 7 November 2023.

[132]Unfortunately, the claimant felt sidelined by Dr Harrison’s appointment and was upset that she was not included to the same extent as Dr Harrison in the set up of the laboratory. The claimant clearly expressed her frustrations during team meetings and this, was the reason that Mr Khan and Dr Harrison ignored the claimant. Dr Harrison had expressed his concerns to Mr Jenkins and Mr Khan and had considered resigning.

[133]The Tribunal has accepted the second respondent’s evidence that the reason the claimant was not tasked with managing Mr Mataloto because he was recruited as a peer to the claimant. As a result, it was appropriate that Mr Mataloto was also line managed by Mr Khan.

[134]The claimant identified Dr Harrison as the appropriate comparator. Dr Harrison cannot be the appropriate comparator as the circumstances which are relevant to the treatment of the claimant were not possessed by Dr Harrison.

[135]The reason that Dr Harrison and Mr Khan ignored the claimant was because she was vocal in her frustration and upset about her role in the department.

[136]The appropriate comparator is a male clinical pathology manager who acted in the same way as the claimant. The Tribunal has concluded that he too would have been similarly ignored by Dr Harrison and Mr Khan.

[137]Equally, Mr Mataloto would have been recruited as a peer to a male clinical pathology manager. In such circumstances, Mr Khan would also have line managed Mr Mataloto.

[138]The claimant has not proven facts from which the Tribunal can conclude in the absence of any explanation from the respondent that the reason for this treatment was because she was a woman. Did Dr Harrison change the laboratory structure without the claimant’s knowledge between December 2022 to September 2023

[139]The Tribunal has concluded after hearing the claimant’s evidence, that the claimant’s complaint is that such changes were made without her consultation. The Tribunal has found on the balance of probabilities that it is more likely than not the claimant knew about the structure change but didn’t agree with it.

[140]Dr Harrison gave evidence that he was responsible for any change of structure in the department as a result of being the laboratory director. The Tribunal has accepted the validity of the organisation charts produced in evidence. It is likely that those charts existed, and the Tribunal accepts the claimant’s version submitted in the file of documents. The second respondent was clear that it needed such structures for accreditation and no doubt flow charts were created as the structure of the laboratory developed.

[141]By December 2022 the flowchart provided that Dr Harrison was the director of the laboratory and the claimant was the head of pathology. Mr Khan gave evidence that by February 2023 the claimant had also become a director. However, in the organisational charts, the claimant remained the head of pathology without reference to her directorship. Dr Harrison gave evidence that he didn’t know the claimant had been made a director until these proceedings.

[142]By May 2023 the organisational chart revealed that the line management responsibilities had been removed from the claimant’s role. However, by July 2023 the line management responsibility had been reintroduced. This accords with Mr Khan retaining line management of Mr Mataloto when he joined in May 2023 and the claimant obtaining line management of Ms Tahir-Shinwari when she joined in July 2023.

[143]The Tribunal has determined that the claimant was not demoted by Dr Harrison. It is clear Dr Harrison was promoted in November 2022 and the claimant’s role became defined as the head of pathology on this date. The organisational charts provided are consistent with this change.

[144]The failure to record the claimant as a director from February 2023 and the removal of line management responsibilities in May 2023 is unwanted conduct. The claimant was able to view the organisational structure that didn’t accurately reflect her role as she understood it.

[145]However, the claimant has not proven facts from which the Tribunal could conclude that on the balance of probabilities such unwanted conduct was related to her sex.

[146]The laboratory structure was a moveable feast and one which developed as time went on. This is clear from the organisational charts. The claimant’s role became more defined. Mr Mataloto was employed as a peer to the claimant.

[147]The Tribunal has determined that on considering the organisational charts, on the balance of probabilities, similar changes for all members of the laboratory team regardless of their sex as the project developed.

[148]The claimant has identified Dr Harrison as the appropriate comparator. However, Dr Harrison is not the appropriate comparator because by this time, he was the laboratory director and not in the same role as the claimant. The Tribunal has concluded that the correct comparator is a male clinical pathology manager.

[149]The claimant has not proven facts from which the Tribunal could conclude that a man in the same role as the claimant would be treated more favourably. He too would have been subject to the same treatment because the reason for the treatment was that the claimant’s role evolved and became defined as did the roles of the other members of the laboratory team.

[150]This treatment does not amount to less favourable treatment. Did the claimant’s dismissal on 14 November 2023 amount to unlawful harassment or direct sex discrimination?

[151]There was no dispute that the claimant was dismissed by the respondent on 14 November 2023. The respondent contends that the reason for the dismissal was redundancy.

[152]In accordance with Urso, a dismissal is unwanted conduct. The question for the Tribunal is whether the claimant has proven facts from which it can conclude without further explanation from the respondent that it was related to her sex.

[153]It was the evidence of Dr Dale that a delay in approval by the MHRA meant that there was a shortage of funds and the only way to recoup matters was to cut staff.

[154]Dr Dale gave evidence that the respondent identified forty-five possible redundancies and as a result, notification was given to the Insolvency Service.

[155]It was the respondent’s evidence that by the end of December 2023 twentynine employees had left, twenty-one of which had been voluntary.

[156]The Tribunal has determined that the respondent did not follow a proper process. There was no consultation with the claimant, and the redundancy came out of the blue. The claimant had had several meetings with Ms Phillips from August 2023 onwards and there was no mention of possibility of redundancy even after details had been submitted to the Insolvency Service.

[157]The respondent has proven that there was a generic redundancy situation in light of the funding shortages but it was convenient for the respondent to include the claimant in the redundancy process. The Tribunal has accepted the claimant’s case that her role was not truly redundant. There was no reduction in her role, her responsibilities were merely consumed by Dr Harrison. The Tribunal didn’t hear evidence that any other member of the claimant’s team was made redundant.

[158]However, the Tribunal has determined on the balance of probabilities that the reason that the claimant was selected for redundancy was because she had expressed her frustration and upset and there were concerns about her behaviour and performance. The claimant had become a liability and a threat to the respondent’s accreditation. Dr Harrison had considered resigning and Ms Phillips was required to intervene to help the laboratory team work together.

[159]The claimant has not proven facts from which the Tribunal could conclude that her selection was related to her sex.

[160]The claimant relies on a hypothetical comparator. The Tribunal has determined that this would be a male clinical pathology director who had been vocal about their frustration and upset and whose behaviour and performance was concerning. This in in accordance with Whittaker. The circumstances that are relevant to the treatment of the claimant are the fact that she was vocal in her frustration and upset and had caused the second respondent to have concerns about her performance. In such circumstances, it is likely that that a male clinical pathology director would also have been dismissed.

[161]The claimant has not proven facts from which the Tribunal can conclude in the absence of any explanation from the respondent that the reason for her dismissal was because of her sex.

[162]As a result, the complaints of harassment related to sex and direct sex discrimination are unsuccessful and are dismissed. Did the claimant perform protected acts for the purpose of a victimisation complaint?

[163]The Tribunal has made findings of fact from the claimant’s evidence that her complaints to Ms Phillips did not raise issues of sex discrimination or of harassment related to sex. The claimant was clear in her evidence that she didn’t want to create a problem.

[164]When Ms Phillips asked the claimant to raise a grievance the claimant didn’t want to take the matter further but asked Ms Phillips to try and sort it out. When Ms Phillips spoke to the claimant there was no reference to complaints of sex discrimination or harassment or a suggestion of any such complaint.

[165]Similarly, when speaking with Ms Phillips on 3 November 2023 and 7 November 2023, about Mr Khan, the claimant made general complaints without any suggestion of sex discrimination or harassment.

[166]Ms Phillips gave evidence that she was not under the impression that the claimant was complaining about sex discrimination or harassment and it is clear from the correspondence that she didn’t know the nature of the complaints.

[167]In Fullah, the EAT stated that a claimant does not have to identify the protected characteristic but the context of the complaint must indicate that it is made on that basis. Similarly, in Kokomane, the EAT stated that there doesn’t need to be specific reference to an act of discrimination but rather, that what was asserted was capable of amounting to an act of discrimination.

[168]The Tribunal has read through the claimant’s notes and emails when she made her complaints to Ms Phillips and has not been able to find any reference to sex discrimination or harassment or a suggestion of any such complaint.

[169]The Tribunal has accepted Ms Phillips evidence and also determined that the complaints made by the claimant were not capable of amounting to an act of discrimination. The claimant’s complaints were about alleged disrespectful behaviour of which she could only give one example and her general feelings about her work in the laboratory. In addition, the claimant complained that Mr Khan had not listened to her, she was not being kept up to date and about the lack of structure. There was no suggestion of a difference in treatment or that her sex was the cause of such treatment.

[170]As a result, the Tribunal has determined that any complaint the claimant made to Ms Phillips was not a protected act. The respondent had no knowledge of the claimant’s complaints of sex discrimination or harassment until the service of these proceedings.

[171]Therefore, the claimant has been unable to prove that any alleged detriments have been caused by any protected acts. The complaint of victimisation is unsuccessful and is therefore dismissed. Time Limits

[172]As a result of the dismissal of the claimant’s complaints, it has not been necessary for the Tribunal to consider the issue of time limits. Employment Judge Ainscough 15 April 2026