Mrs A Evans v Committee of Timperley Conservative & Social Club: 2406704/2023

EMPLOYMENT TRIBUNALS

Case No 2406704/2023

Between

Mrs A EvansClaimant

Committee of Timperley Conservative & Social ClubRespondent

Before

Employment Judge Horne

Mrs R Jackson for claimant

Mr R Quickfall (instructed by counsel) for respondent

Date 31 December 2024

JUDGMENT

The complaint of unfair dismissal is struck out under rule 37 of the Employment Tribunal Rules of Procedure 2013 on the ground that the claimant did not have a qualifying period of continuous employment as required by section 108(1) of the Employment Rights Act 1996 and her complaint therefore has no reasonable prospect of success. Employment Judge Horne 9 October 2023 17 October 2023 Note: Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party makes a request in writing within 14 days of the date when this judgment is of judgments, which is visible to internet searches. 1 of 1 RESERVED JUDGMENT The unanimous decision of the Tribunal is that:

[1]The complaint of breach of contract in relation to notice pay is not wellfounded and is dismissed.

[2]The complaint of indirect sex discrimination (section 19 Equality Act 2010) is not well-founded and is dismissed.

[3]The complaint of harassment related to sex (section 26 Equality Act 2010) is not well-founded and is dismissed.

[4]The complaint of a failure to provide an initial statement of employment particulars and for associated compensation pursuant to section 38 Employment Act 2002 is not well-founded and is dismissed.

REASONS

[1]By a claim form presented to the Tribunal on 1 June 2023, the claimant brought claims of indirect sex discrimination, sex related harassment and wrongful dismissal against the respondent. The claimant also sought to argue that she had not been presented with a copy of her initial statement of terms and conditions and that an award of compensation should be made to her pursuant to section 38 of the Employment Act 2002.

[2]The parties participated in a preliminary hearing for case management purposes on 9 October 2023. During the course of that hearing, Employment Judge Horne drew up a list of issues for determination in the case which was to be found at page 54 of the final hearing bundle. At the start of the hearing the Tribunal agreed with the parties that this would form the list of issues for determination in this case, although the Tribunal would also consider the respondent’s proposed list of issues at page 99 insofar as it was relevant and necessary to do so.

[3]The Tribunal received written and oral evidence from the following witnesses: For the claimant:a. The claimant, Andrea Evans, formerly a Bar Supervisor at the respondent’s club;

b. Mark Gleaves, the respondent’s Assistant Manager;

c. Donna Crann, the claimant’s former sister-in-law and friend, who assisted her with her appeal;

d. Rachel Jackson, the claimant’s sister, who also represented her at the Tribunal hearing.

e. Steve Murray, Vice Chair of the respondent’s committee from January 2022 to January 2024. For the respondent:

f. Wayne Ninian, club member;

g. Christine Ankers, member of Bar Staff for the respondent;

h. David Sutcliffe, Club Secretary from December 2021 to January 2024;

i. Keith Regan, Bar Steward/Bar Manager for the respondent from 1 January 2022 until his retirement in October 2024;

j. Louise Cowan, Club Treasurer;

k. Steve Hawkins, current Vice Chair of the Committee and club member/ Games Room Representative;

l. Andrew Sheridan, committee member and Chairman;

m. Andrea Breen, member of Bar Staff for the respondent;

n. Julie Hotchin, member of Bar Staff for the respondent.

o. Marc Brownhill, club member.

[4]The Tribunal also had regard to the contents of an agreed hearing bundle consisting of 261 pages. We read those documents to which we were directed by the parties. References in square brackets below are references to pages in the hearing bundle, unless otherwise indicated. The Tribunal also had the benefit of a chronology and cast list. We received oral closing submissions on behalf of both parties, for which we were grateful.

Facts

[5]The respondent operates a social club which operates a bar. At the premises there are three separate bars for the use of club members: “The Dog House”, “The Middle Bar”, the main “Lounge” or “Top Bar.” These are three separately enclosed rooms from the point of view of customers at the premises. However, the bar itself runs along one wall and passes, uninterrupted, from room to room. Bar staff can pass through doorways along the bar from room to room. They can walk behind the bar from the lounge, through the middle bar and through to the Dog House without ever having to step out from behind the bar.

[6]The claimant started employment with the respondent as a member of part time bar staff on 15 January 2022 at an hourly rate of £9.50. She had previously worked for the respondent several years beforehand but this was the start of the period of employment with which the Tribunal is concerned. In April 2022 the claimant was promoted to Bar Supervisor on £10.50 per hour.

[7]On the first day of the claimant’s employment, when she was introduced to a colleague who was also called Andrea, the claimant resisted any attempt to refer to her as “Andrea No 2” but stated “I’m f**king number 1, not her.” This indicates that the strength of the claimant’s personality in the workplace from the very outset of this period of employment with the respondent.

[8]The claimant entered into a personal relationship with her direct line manager, Mr Gleaves. The relationship certainly began in earnest around New Year 2022/2023, although it appears that there were rumours of a relationship amongst staff and members of the club before this date (from the Autumn of 2022). Prior to this the claimant was married and the marriage apparently ended during 2022.

[9]During the course of the relevant chronology the claimant went on two holidays with Mr Gleaves. The first of these holidays seems to have been a holiday with a group of friends which included the claimant and Mr Gleaves. This was in November 2022. Once the claimant and Mr Gleaves started their relationship, they went on holiday together in February 2023. During this holiday various photos were taken and stored on the claimant’s phone. These included photographs of them in a pool, apparently nude, and full frontal nude images of the claimant and Mr Gleaves. Upon the claimant’s return from the holiday she showed these photos to people in the workplace. We heard evidence from the respondent’s witnesses that these photographs (including the nude photographs) were shown to colleagues and also to club members. Accounts differed (between the claimant and the respondent’s witnesses) as to whether the claimant handed her phone to others such that the relevant images were viewed by accident or whether the claimant actively pushed or encouraged them to look at the relevant photographs, against their wishes. However, it was not in dispute that the claimant knew which photographs were on her phone and willingly permitted others to look at the photographs in full knowledge of what they would be able to see. On balance, the Tribunal concluded that the claimant actively encouraged/pushed others to view the photographs despite their protestations that they did not want to look at them. Hence, there was evidence that Mrs Ankers was forced to view images unwillingly and there was evidence that club members had complained about the claimant pushing them to view the photos and that they were distressed about it. Mrs Ankers went so far as to produce a supplemental witness statement for the Tribunal hearing in response to some of the more specific assertions in the witness evidence of the claimant and Mr Gleaves because she was so embarrassed by the way that they had sought to portray her in their statements to the Tribunal. The Tribunal concluded that the claimant was proud of the relationship and proud of the photos and wanted them to be viewed by others in the workplace. She perceived this as giving her an increased status within the workplace. One of the difficulties with this was that Mr Gleaves was the direct line manager of the bar staff and the claimant was, herself, a supervisor. This added a further layer of impropriety to the sharing of the photographs. Staff were being pushed to view nude images of their immediate line manager.

[10]The Tribunal heard further evidence about the claimant’s working relationship with some of her colleagues. For example, Mrs Hotchin felt that she had to speak to the claimant about the claimant’s use of bad language in her presence. She took the claimant to one side and made her aware that her language was causing Mrs Hotchin distress and was not acceptable. The Tribunal accepts that, for a period of time, the claimant’s language in the workplace improved. However, she subsequently relapsed into old habits. Likewise, Mrs Hotchin took issue with the claimant’s lengthy smoking breaks which would leave Mrs Hotchin without assistance in the bar. Mrs Hotchin felt that she had to address this with the claimant directly. Again, any improvement in the situation was relatively short lived.

[11]Mrs Hotchin was not the only employee to experience difficulties in working alongside the claimant. The Tribunal heard evidence that Mrs Ankers decided that she did not want to work on the same shifts as the claimant. She spoke to Mr Regan in approximately May/June 2022 and indicated that she felt unable to work with the claimant anymore. She asked if she could stop working on Fridays and Mr Regan agreed to this. Whilst this reduced Mrs Ankers’ income, she felt that this was preferable to working shifts with the claimant. The Tribunal finds that this was not a formal complaint from Mrs Ankers to Mr Regan. There was no written complaint or grievance which needed to be investigated or to be the subject of a formal procedure. Rather, Mrs Ankers requested the shift change and explained why she wanted it. Mr Regan saw this is as a relatively simple solution to the problem which he was prepared to implement. (The Tribunal accepts that staff would regularly request shift changes and that this was not an unusual occurrence in a bar environment.) This resolved the problem from the point of view of both Mrs Ankers and Mr Regan. Neither of them had any expectation that there would be a further investigation or a procedure involving the claimant as a result of Mrs Ankers’ request.

[12]Many of the club members were regular patrons at the respondent’s bar premises. One of the long standing members of the club was Wayne Ninian. He came into the respondent’s bar on most days and stayed in the bar drinking for a number of hours each time. He was something of a fixture at the premises. He was not a troublemaker and was apparently well liked by staff and members of the club alike.

[13]The claimant and Mr Ninian had a friendship. They had known each other for more than ten years. Mr Ninian ran a carpet fitting business. He had fitted carpets in the claimant’s home in the past. He had fitted carpets in November 2022 and there was some suggestion in the evidence that he attended her house again in early 2023 to replace some carpets. On a fairly regular basis the claimant and Mr Ninian would walk home from the club together. Their routes home partially coincided. He would walk with her to the end of her road and then their paths would diverge.

[14]In the course of her evidence to the Tribunal, the claimant alleged that on one night in October 2022 Mr Ninian walked her home and came into her house for a smoke. She alleged that he leant in for a kiss. She maintained that she stopped him and told him to leave. Mr Ninian denied this allegation. He maintained that this had never happened.

[15]On balance the Tribunal concluded that this incident did not occur. The Tribunal noted that this was a significant and serious allegation in the context of the claimant’s Tribunal claim, particularly the allegations of harassment. In many ways it was a pivotal aspect of her factual account of the events leading to the termination of her employment. She sought to suggest that this was a turning point in Mr Ninian’s attitude towards her. She asserted that after he was rebuffed, he started to use foul and abusive language towards her whilst she was at work. It was, therefore, surprising that the claimant made no mention of the incident at any stage of the proceedings before she produced her Tribunal witness statement. She did not include the allegation in the internal appeal against dismissal as part of an explanation (or mitigation) for her actions which culminated in the dismissal. Nor did she include it in her Tribunal claim form, either the original version or the amended version (which consisted of a number of deletions and additions.) Whilst the claimant was not legally represented for the purposes of her Tribunal claim, as a lay person she would have known how important a part of the factual jigsaw this allegation was. She could and should have included it in the Tribunal claim, either from the outset or when she amended her claim form. There was also apparently no discussion of this allegation during the Preliminary Hearing for case management purposes. The Tribunal does not accept that this omission was a simple oversight on the claimant’s part. Rather, the lack of consistency undermines the reliability of the claimant’s evidence to the Tribunal in relation to this and other matters.

[16]In addition, there was no evidence from witnesses (or in documentary form) to indicate that the claimant had told anyone about this alleged incident at around the time that it is said to have taken place. Neither the claimant’s sister nor her friend Ms Crann gave evidence that they had been told about this incident at the time. When the claimant complained to the respondent that she had been subjected to abusive language by Mr Ninian in the workplace, she did not refer to this incident as the starting point. It is also notable that, even on the claimant’s version of events, Mr Ninian returned to her home in November 2022 (i.e. the following month) in order to fit some carpets. It is perhaps questionable whether this would have happened if Mr Ninian had tried to ‘make a pass’ at the claimant in October 2022. It is not consistent with the alleged breakdown or change in their relationship as a result of the alleged October incident. It further undermines the reliability of the claimant’s account.

[17]In light of the above (and taking all the available evidence in the round) the Tribunal finds, on balance of probabilities, that the incident in October 2022 where Mr Ninian is said to have tried to kiss the claimant, did not take place.

[18]In the course of the claimant’s witness statement to the Tribunal she made a number of allegations about incidents involving Mr Ninian. The first such allegation related to 11 November 2022. The claimant alleged that whilst she was working at the club Mr Ninian asked her to change his pint, which she did. She alleged that he asked her, “what’s up with you, you miserable bitch.” Mr Ninian denied this allegation in his evidence to the Tribunal. There was no witness evidence to corroborate the allegation.

[19]The Tribunal noted that the claimant had not included this allegation as part of her internal appeal to the respondent. The claimant’s Tribunal witness statement was very specific about the date of the incident and yet the Tribunal wondered where the information about the date had come from. Why was the claimant able to provide this level of detail in her witness statement when she had not mentioned it in the appeal? We also considered the context of the alleged exchange. In her description of the incident the claimant did not explain what had happened before and after the comment to put it in context and help the Tribunal understand why Mr Ninian would make such a comment in the circumstances. In particular, the claimant said that she changed his pint as he had requested and so it is not clear why he would seek to insult her in this way. Whilst the Tribunal is prepared to accept that Mr Ninian might use bad language (such as the “F word”) in the course of conversation, the witness evidence suggested that he did not direct foul or abusive language at people or seek to insult them. He was not gratuitously offensive to staff or other club members. Rather, he was described as helpful to staff rather than a source of unprovoked offensive comments. Indeed, the claimant had referred to him as a friend for a number of years and had even given him a nickname. If the alleged attempted kiss did not happen in October 2022 (as the Tribunal has concluded) it is not clear why Mr Ninian’s attitude and behaviour towards the claimant would have changed, as she alleged, on 11 November 2022. There was no reason for Mr Ninian’s attitude towards the claimant to be hostile on 11 November.

[20]Mr Gleaves sought to suggest that the claimant reported this incident to him and that he reported it to Mr Regan on 12 November 2022. However, Mr Regan confirmed in his witness statement that Mr Gleaves had never raised any complaints with him on the claimant’s behalf about Mr Ninian’s behaviour. Nor had the claimant come to Mr Regan directly with any complaints.

[21]Again, taking the evidence in the round, the Tribunal found, on balance of probabilities, that Mr Ninian did not make the alleged offensive comment to the claimant on 11 November 2022.

[22]The claimant went on to give evidence about an alleged incident in December 2022. She alleged that on one (unspecified) evening in December, whilst she was working behind the bar, Mr Ninian remarked to her, “what’s up with you, is it the time of the month or summat.” She confirmed that she did not say anything to him and asserted that she felt intimidated and degraded by his comment.

[23]Once again, the claimant’s account lacked context. She set out the alleged comment but not what preceded it or came after it. The Tribunal therefore struggled to understand why Mr Ninian would come out with such a comment. The claimant did not report it to anyone at the time. Even Mr Gleaves did not suggest that he had been told about this. Nor was it in the examples which the claimant quoted during the respondent’s appeal process. Mr Ninian firmly denied saying this to the claimant.

[24]On balance, the Tribunal preferred the respondent’s evidence in this regard. The Tribunal found that Mr Ninian did not make this comment as alleged by the claimant.

[25]The claimant alleges that in January 2023 Mr Ninian asked her to cash his fruit machine tokens. Her account was that there was not enough money in the fruit machine tin and she told him that he would have to wait and ask Mr Regan for it the next day. She alleged that, in response, he called her a useless c**t and said that she was ‘shit at her job’ and that he would get her sacked. She alleged that he said he was going to phone Mr Regan and that he went out into the foyer. She said that he then returned and told her that Mr Regan had said to pay him out of the till. Her evidence was that she did as he said and paid him because she felt degraded and humiliated by what he had said and didn’t want anything else to happen. She said she also felt undermined by Mr Regan. On her account, Mr Ninian smiled at her smugly and then walked off.

[26]Mr Ninian accepted that he had asked the claimant to cash his fruit machine tokens and that she had said that she did not have enough cash and he would have to wait to get the cash the next day. He maintained that he took no issue with this as it was standard procedure at the club. It had happened to him before. He maintained that the claimant did not pay him out his winnings on the night (as she asserts) but that he in fact got his money either the next day or the day after that. He understood that if there was insufficient money he could not have it there and then. He also denied phoning Mr Regan on the night or asking him to instruct the claimant to pay him, out of the till or otherwise. There was no evidence from Mr Regan to suggest that he had received such a phone call about the fruit machine prize.

[27]Having heard from the witnesses, the Tribunal preferred the evidence of Mr Ninian. We accepted that there was no drama around this issue. He accepted what he was told (as he had before and since.) There was no indication that he was in desperate need of the pay out on that particular evening. In such circumstances he had no reason to be abusive. Furthermore, Mr Regan did not indicate that Mr Ninian had phoned him about the fruit machine pay out.

[28]The claimant asserted that on 24 February 2023 she saw Mr Ninian coming out of the cellar and asked him what he was doing in there. He said he was changing a barrel. The claimant says that she told him that he wasn’t allowed to go in there and he aggressively told her that he can “go where the f*** he wants.” And, “you are all the same you f***ing women.” The claimant says that she felt intimidated and degraded as a woman by these comments. Although the claimant included this in her allegations to the Tribunal, she had not mentioned it in her appeal to the respondent.

[29]Mr Ninian denied this allegation. He said that he would often help the bar staff out when changing barrels in the cellar. He maintained that on at least one occasion the claimant had herself asked him to help her change a barrel. As for the alleged comment, he maintained that he would never speak to a woman in that way. He maintained that Mr Regan had shown him how to change a barrel and he helped a lot of staff members to change barrels if they asked him for help. The claimant did not seem to deny or to challenge Mr Ninian’s evidence that he had been trained on how to change the barrels.

[30]Some of the respondent’s other witnesses (such as Mrs Ankers and Mrs Breen) confirmed that Mr Ninian would try to be helpful and assist them in changing the barrel. Mrs Breen confirmed that this was with Mr Regan’s permission. The Tribunal accepts that bar staff knew that Mr Ninian would help with barrels, if asked, and that he had been trained to do so and did so with the knowledge of Mr Regan. It is likely that he had helped the claimant in this way too, particularly given their prior friendship. If the claimant did see him coming out of the cellar she is unlikely to have questioned this as she would know that he went into the cellar on occasion to change a barrel for bar staff. In any event, even if she questioned him about it, it is hard to understand why he would have responded in the way that she alleged. Mr Ninian gained no personal benefit from going into the cellar. He was doing this as a favour to staff. Why would he assert (or brag) that he could go wherever he wanted? Why would he say that all women are the same? And how did that relate to his working in the cellar- how was it relevant to the context? This sort of comment does not fit easily with Mr Ninian’s attempts to help staff in the cellar. The alleged comments appear egotistical. This is at odds with the assistance that he was providing at the time.

[31]Whether or not the Tribunal accepts the description of Mr Ninian which was given by one witness (that he is “an absolute gentleman”), it appears that he was well thought of by the majority of staff and members at the club. In particular, he was known to be helpful such that he had been trained to assist if required. This does not sit well with the claimant’s assertion that he threw his weight around regarding access to the cellar. Apart from anything else, there was nothing in it for him. He did not stand to benefit by behaving in this way. The claimant’s description of Mr Ninian was at odds with that provided by all the other witnesses. Furthermore, Mr Ninian presented to the Tribunal as a man of few words and was quietly spoken. He did not go out of his way to be critical of the claimant but gave his evidence in a straightforward and credible manner. For example, he admitted that he would swear and use bad language whilst in the bar but denied directing this language ‘at’ other people. This was a concession that he did not have to make. His evidence was consistent with that of the respondent’s other witnesses. The balance of the witness evidence suggested that it was the claimant (rather than Mr Ninian) who was outspoken, who used foul language and who was offensive to others.

[32]The claimant gave evidence that she was at work on 2 March 2023 and noted that the television in the Dog House bar was not working. She says that she asked Mr Hawkins, who was the ‘Dog House Rep,’ to sort it out. She alleges that he said no, that she asked him not to be mean, and that he refused again. Apparently the claimant said that he was the Dog House rep and this is what he was supposed to do. The claimant’s account was that she said to Mr Hawkins’ wife, jokingly, “He’s not very good at being the Doghouse rep is he?” She alleges that Mrs Hawkins laughed and Mr Hawkins got up and fixed the TV and then told the claimant not to let anyone mess with the buttons on the TV.

[33]Mr Hawkins’ account of this incident was somewhat different. He alleges that the claimant had spoken to him with quite an attitude. He explained that the respondent had recently had a new TV and media system fitted and the claimant was struggling to use the controls. All staff had been shown how to use it. Mr Hawkins alleges that he walked into the club one evening with his wife and the first thing that the claimant said to him was, “you better sort this f***ing TV out.” His recollection is that his wife then said to the claimant, “maybe if you ask him nicely he will sort it.” Mrs Hawkins was apparently upset at the way the claimant had spoken to her husband. Mr Hawkins also alleged that the claimant had threatened to have him kicked off the committee if he did not do this.

[34]Having heard the respective witnesses give evidence, the Tribunal preferred the evidence of Mr Hawkins to that of the claimant in relation to this incident. Her alleged comment to Mr Hawkins was in keeping with the way that other witnesses alleged that the claimant spoke to them. According to the claimant this was a non-incident and yet she felt the need to address it in her witness statement to the Tribunal. 3rd March 2023

[35]The Tribunal heard a significant amount of evidence about the events of 3 March. The claimant alleged that Mr Ninian asked her to change his pint because it was flat, said that he wanted another one and, ‘not to put it in one of them f***ing glasses because they are shit.’ She alleged that he called her a useless bitch. This allegation against Mr Ninian (at paragraph 15) of the claimant’s witness statement appeared for the first time in the claimant’s witness statement. It did not form part of her internal appeal or the claim form/particulars of claim in her Tribunal claim. It seems to be something of an embellishment of the case which was added by the claimant when she was preparing her Tribunal witness statement.

[36]In cross examination Mr Ninian accepted that he asked the claimant to change his glass but denied the language that she attributed to him. None of the other witnesses heard Mr Ninian use this bad language towards the claimant. The remedy to the flat pint was straightforward: change the glass.

[37]The incident then developed into an interaction between Mr Ninian and Mr Gleaves. Apparently Mr Ninian went up to Mr Gleaves to get him to change his pint (he had just done this for Mr Brownhill without complaint.) When this did not resolve the problem to Mr Ninian’s satisfaction Mr Gleaves apparently lost his temper and either threw or slammed the glass down so hard that it smashed against the bar (or just under it.) It appears that Mr Gleaves then stormed out of the bar and the claimant followed him. Mrs Ankers was left to clean up the mess and the smashed glass by herself.

[38]The claimant alleges that Mr Ninian referred to her as a ‘f***ing useless c**t’ when he asked Mr Gleaves to change his pint. When changing the glass did not help, she alleges that Mr Ninian said that Mr Gleaves was ‘shit at his job.’

[39]Mrs Ankers provided her account of the incident in her supplemental statement to the Tribunal. She said that Mr Ninian asked Mr Gleaves to change his glass because his pint was flat. This should not have been a big deal as it often happens. She described Mr Gleaves as being in quite a rage and said that he took hold of the glass and threw it on the shelf below the bar top. The glass smashed and glass went everywhere. Mr Gleaves then stormed off. She said that she was present for the entire incident and did not know what had prompted Mr Gleaves’ response. She did not see or hear Mr Ninian say anything just before the glass was changed. She did not hear him call the claimant a “useless c**t” or a “useless bitch” at any point, either before or after the glass was smashed. This is not language that she had ever heard Mr Ninian use and she maintained that she would have stepped in if she heard a member speak to staff in that way. She maintained that she was left to clear up the glass and that the claimant did not help her. In fact she does not recall the claimant being present.

[40]On balance, the Tribunal preferred the evidence of the respondent’s witnesses in relation to this incident. The claimant does not suggest why Mr Ninian would have cause to speak about her using foul language. None of the witnesses heard it. On the contrary, the respondent’s evidence suggests that it was Mr Gleaves who was in a temper and who overreacted to a fairly standard customer request to replace a pint.

[41]The claimant alleges that Mr Ninian saw her the next day and said, “I’m not a f***ing grass you know.” When asked about this in cross examination Mr Ninian accepted that he had said he was ‘not a grass’ but that he did not swear in the process. He intended to convey that he had no interest in getting anyone into trouble for what had happened the day before. He had no interest in Mr Gleaves being sacked for smashing the glass or for his behaviour. Mr Ninian’s evidence in this regard made sense and was in keeping with his approach to the events of 4 March. Mr Ninian had no interest in getting other people into trouble and sought to let things settle without any further intervention from him. 4 March 2023

[42]Later on 4 March, the claimant alleges that there was an incident between her and Mr Ninian arising out of a request for ‘cashback’ from the till. It is common ground between the parties that the respondent’s bar staff have a facility whereby they can give ‘cashback’ to customers who request it. There seems to have been a limit to the amount that could be provided in one transaction and the financial limit on a transaction was in dispute. The parties agree that another club member asked the claimant for cashback first and was given the sum that she asked for. Mr Ninian wanted to put some money into a collection for a funeral. He wanted to put in £100. He asked the claimant for cash back for £100 thinking that she could process this as two lots of £50. His recollection was that the claimant said that they did not do cashback, which contradicted what he had just witnessed (i.e. cashback being given to another member.) He also knew that he had asked for (and received) cashback on a number of occasions previously and had seen others obtain cashback too. He therefore challenged why the claimant was refusing to do this for him when she had done it for others. His account is that the claimant became very aggressive and told him to “f*** off.” When he told her to shut up and tried to put an end to the exchange he described the claimant as ‘going berserk,’ shouting at him “F***ing come outside and I’ll f***ing batter you.” He rang Mr Regan that night because he was so upset at what had happened. He was described as being “beside himself.” Mr Regan confirmed that it was not usual for Mr Ninian to ring him to speak to him outside of work. Mr Regan did speak to Mr Ninian the next day and confirms that Mr Ninian alleged that the claimant had offered to take him outside and smash his face in.

[43]The claimant’s account was different. She alleged that she had told Mr Ninian that she did not think she could give him that much money but said she would ask Mr Gleaves. She says she went to Mr Gleaves in the middle bar and asked if she could give £100 and he said no, the maximum is £20. She says that she went back into the Dog House and told Mr Ninian that she could not give that amount. She says that he argued that she’d given someone else cashback and she said that she had given £20 not £100. He allegedly argued that he wanted the money to put in a funeral collection and said that the claimant was being ‘an awkward bitch’ and that the poor dead person’s family would not be able to give him a decent send off. She says that she asked him to give it a rest and he then said, “what’s up with you, have you had a row with your f***ing stupid boyfriend?” The claimant admits that she was so upset by his attitude that she told him to f*** off. She says that he then told her to “f*** off” and she said, “come on let’s take it outside.” She alleges that she told Mr Gleaves what had happened and he told her to go outside and have a break.

[44]The language referred to by the claimant in her witness statement differed somewhat from the allegation at paragraph 33(vii) of the claimant’s Particulars of Claim [21]. In the Particulars of Claim she alleges that Mr Ninian looked at her aggressively and said, “you’re all c**ts.” In her witness statement she did not allege that he made this particular comment and this was not substantiated elsewhere in the evidence. In the Particulars of Claim the claimant did admit that she retaliated, swore back at Mr Ninian and ‘offered him outside to fight him.’ The Tribunal was not persuaded that Mr Ninian had said, “you’re all c**ts”, not least because the claimant did not substantiate it in her own evidence to the Tribunal. On balance, the Tribunal finds that he did not say this.

[45]There were witnesses to this event in the bar. Mr Brownhill gave evidence to the Tribunal and provided his account of the incident in an email on 6 March 2023. He alleged that the claimant had said she would have to check with Mr Gleaves whether she could give Mr Ninian the cashback. He then witnessed the claimant say to Mr Gleaves, “Wayne has asked for cash back, say no!” The claimant then told Mr Ninian that it wasn’t possible for him to have cashback and he replied that it wasn’t fair as the claimant had just given Hayley cashback and that the claimant and Mr Gleaves were just being awkward. He alleged that the claimant then told Mr Ninian to f*** off and, “I will punch your face in.” Mr Ninian then told her to f*** off in response and the claimant said she would get her coat and take it out into the car park to sort it out. Mr Brownhill felt that the claimant behaved very unprofessionally and her aggressive manner was disproportionate to the matter at hand.

[46]In fact, it appears that one of the witnesses to the incident made an unsolicited report to the respondent by email the next day [128]. Ms McAllister indicated that when Mr Ninian said it was not fair that he was not allowed cashback, the claimant told him to shut up and leave it in quite an aggressive manner. Mr Ninian said he wasn’t being funny but did not see how it was fair. She confirmed that whilst Mr Ninian had been drinking alcohol, he was not aggressive or argumentative. She confirms that the claimant told Mr Ninian to f*** off saying she’d punch his face in and offering to get her coat and take it outside in the car park. Mr Ninian then told her to f*** off back. The claimant left with her coat saying, “let’s take it outside.” Mr Ninian stayed put. In her report Ms McAlister expressed the view that the claimant did not conduct herself in a professional manner, actually fueling a situation rather than trying to diffuse it. She maintained that the claimant had threatened Mr Ninian , sworn at him and shown a lack of respect. She confirmed that Mr Ninian was evidently upset by the incident.

[47]Mr Hawkins witnessed the aftermath of the incident, as he was in the Middle Bar. The claimant apparently came through the Middle Bar asking for permission to, “smash his f***ing head in.’ At this point Mr Hawkins did not know who the claimant was referring to. Mr Hawkins went to the Dog House to collect his jacket as the claimant stormed past. He met Mr Ninian who said he was ‘done with the place’ and was not being spoken to like that. He tried to calm Mr Ninian down, to no avail. His email account also referred to the earlier TV incident on 3 March and indicated that the claimant had threatened to have him kicked off the committee and indicated that his wife was not happy with the claimant’s approach.

[48]Mr Gleaves’ account is that the claimant told him that Mr Ninian wanted £100 and he said that he could not have that much. He then heard raised voices from the claimant and Mr Ninian. The claimant came through the bar area towards Mr Gleaves and told him that she’d had an argument with Mr Ninian and that she had sworn at him and asked him outside so Mr Gleaves told her to have a break and calm down.

[49]It seems to be common ground that the claimant swore at Mr Ninian first, that she threatened him with violence and that she offered to go outside to resolve the fight. Bystanders seem agreed that she instigated the argument and that Mr Ninian did not overreact or do something to trigger it. Witnesses suggest that he did not swear at the claimant until the claimant had already sworn at him and threatened him with violence.

[50]There is a further allegation that Mr Hawkins aimed a comment, “and you can f*** off” to the claimant when she returned to the bar. This is denied by Mr Hawkins.

[51]The weight of the evidence available to the Tribunal suggests that the claimant was the main aggressor in the argument and she was the one who threatened violence. The impression given is that she overreacted and that Mr Ninian did not provoke this, although he swore at her once she had shouted and threatened him. Indeed the claimant accepted that she swore at Mr Ninian and threatened violence towards him and that she offered to take the argument outside. Given that the claimant was a member of staff and Mr Ninian was a customer it would appear that the claimant’s actions were totally inappropriate in a workplace. 5th March

[52]The claimant alleges that Mr Ninian tried to rile her again the next day by swearing at her and saying, “they give cash back here you know.” Mr Ninian denied this and said that he had wanted to let the matter go. He made a point of saying that he did not want to get anyone into trouble. Indeed, when he was asked to give a witness statement as part of the subsequent disciplinary process he was reluctant to do so and said that he did not want to get involved. He confirmed that, “I don’t want to make a complaint about what happened. Also I don’t want to see anyone lost their job over something so petty. I seen Andrea the next day who I have known for a long time and we resolved the problem between us.” This was in keeping with the evidence of the respondent’s other witnesses who suggested that Mr Ninian was not a troublemaker or aggressive towards staff. Had he wished to get the claimant into trouble he could have made a complaint. He did not do this. It was the witnesses to the incident who made complaints to the committee.

[53]On receipt of the complaints and reports from club members (such as Ms McAlister and Mr Brownhill), the respondent decided that it needed to investigate the matter further. Reports were made to Mr Sutcliffe who instigated an investigation. Mr Regan spoke to other club members including Brooke Hennigan, Mark Hennigan, Daniel Huxley and Peter Hearn, who had been present on 4 March. He did not write down what they said but maintains that they all seemed to suggest that the claimant was aggressive towards Mr Ninian and that she was clearly in the wrong. Each of them said that they did not want to get involved or take it any further. Ms McAlister and Mr Brownhill relied upon the written accounts that they had already provided to Mr Sutcliffe. The Tribunal had no reason to disbelieve Mr Regan’s account of what he was told by other club members at the time.

[54]Mr Regan invited the claimant to a meeting on 8 March to discuss the allegation about the verbal altercation on 4 March. He contacted her via WhatsApp as other methods of communication did not seem to be working. The respondent wanted to get the claimant’s account of what had happened. The claimant was told about the potential outcomes and was given the opportunity to be accompanied.

[55]Prior to the meeting, Mr Regan reviewed the written accounts of Ms McAlister, Mr Brownhill and Mr Hawkins. The documents were not provided to the claimant during the process because the claimant admitted that she had behaved inappropriately and apologised for it. Given the admission, the respondent did not believe that the claimant needed to see the written accounts when she had admitted the conduct in question.

[56]The meeting on 8 March was conducted by Mr Sutcliffe and Mr Regan jointly. Mr Sutcliffe’s note of the meeting was subsequently typed up. The notes indicate that the claimant accepted that the allegations against her were correct. However, the claimant alleged that for about five months Mr Ninian had been abusive towards her and that he swore at other staff members. She asserted that she had ignored it and it had got worse. “If we do not do what he says we are c**ts.” The typed note of the meeting [140] states that Mr Gleaves had been informed of the issue but that he had not passed it on to Keith Regan. She also alleged that Mr Hawkins had been aggressive towards her.

[57]Mr Regan maintained that he had not been told about the claimant’s allegations against Mr Ninian prior to the incident on 4 March. He denied saying, “I didn’t realise it was that bad” during the meeting as he did not know about the problem at all. Mr Sutcliffe told the claimant that she was suspended on full pay pending a meeting on 15 March.

[58]The Tribunal accepted Mr Regan’s evidence that he had not been made aware of the claimant’s complaints about Mr Ninian’s behaviour prior to the incident on 4 March. Mr Gleaves had not told him about it and neither did the claimant.

[59]Given that the claimant had now raised a complaint against Mr Ninian, Mr Regan spoke to other members of staff to see if any of them had witnessed the alleged behaviour from Mr Ninian towards the claimant. He spoke to Christine, Julie, Andrea and Brooke. None of those staff members corroborated the claimant’s allegations. He did not obtain written statements as he thought it sufficient that they had told him that they had not witnessed anything. In any event, many of those witnesses attended the Tribunal hearing to give their evidence about Mr Ninian and the claimant directly to the Tribunal. The Tribunal had no reason to disbelieve Mr Regan’s account of what the staff told him when he spoke to them at the time.

[60]As previously stated, Mr Ninian was asked about what happened on 4 March and said that he did not want to get involved.

[61]On 13 March Mr Sutcliffe messaged the claimant the minutes of the 8 March meeting. The respondent did not receive a reply from the claimant. They did not receive a reply until after the claimant had been dismissed. On 21 March the claimant messaged Mr Sutcliffe to say that she did not agree the minutes. Mr Regan felt that Mr Sutcliffe’s notes were accurate and he did not agree with the claimant’s proposed amendments.

[62]A further meeting with the claimant took place on 15 March. Again, Mr Sutcliffe took a note which was subsequently typed up. Again, the claimant confirmed that she did not wish to have anyone present at the meeting. The claimant was asked whether she had any verbal or written submissions to make and she handed across two typed letters and one handwritten letter. She also apologised for her behaviour.

[63]The typed letters were dated 12 March [163 and 164]. The claimant alleged that she had been goaded throughout the evening of 4 March and that this was witnessed by others. She alleged that Mr Ninian disrespected bar staff and used obscene language but did not specify precisely what he had said and to whom. The claimant confirmed that she had reported the incident to Mr Sheridan and Mr Murray. The second letter made an allegation about Mr Hawkins and that he had told her to “shut the f**k up.”

[64]The meeting was adjourned so that the letters could be read. The meeting reconvened and the claimant was told that she was to be dismissed on the basis that her conduct amounted to gross misconduct. It was explained to the claimant that they did not consider that her letters amounted to mitigation for the verbal abuse and threats of violence which the claimant made towards club members on 4 March. The claimant apologised for her behaviour, handed her keys back, and left the meeting.

[65]Mr Regan’s evidence was that the claimant had made the allegations about Mr Ninian’s behaviour for the first time during the course of the disciplinary process and that these did not have any bearing on the decision to dismiss the claimant.

[66]The Tribunal considered whether the claimant had made any complaint about Mr Ninian’s conduct towards her prior to the incident on 4 March and prior to the instigation of the disciplinary process against her. We concluded that the claimant had made no such report to the respondent and that her complaints were raised with the respondent for the first time in response to the disciplinary allegations that were made against her. Mr Regan was adamant that he had not received any prior complaints from the claimant. The original meeting notes [140] suggested that Mr Gleaves had been informed but had not passed it onto Mr Regan. Furthermore, even when the claimant sought to amend the notes of the disciplinary hearing she did not suggest that she herself had made a direct report to Mr Regan about Mr Ninian. Rather, she said that she had reported it to Mr Gleaves and that other bar staff would corroborate the allegations. On 21 March she had asked to amend the notes of the meeting to record that she had reported it to Mr Gleaves who had then reported it to Mr Regan. Even taking into account the claimant’s own proposed amendments to the notes, the claimant was not asserting that she had personally reported the problem to Mr Regan. Rather, she asserted that she had reported it to Mr Gleaves who had reported it to Mr Regan. The original notes from the meeting suggested that the claimant had reported it to Mr Gleaves who had not passed it on to Mr Regan. This matched Mr Regan’s own evidence and he did not agree that Mr Gleaves had made any report about Mr Ninian to him prior to the claimant raising her allegations during the disciplinary process. There were certainly no written complaints raised by the claimant to the respondent about Mr Ninians’s behaviour towards her. There was no contemporaneous evidence to suggest that she had made a verbal complaint prior to the disciplinary allegations either.

[67]Once the claimant did raise an allegation or verbal complaint about Mr Ninian (during the disciplinary process) it was investigated. The respondent spoke to all members of staff (and to many club members who may have witnessed something) in order to see whether anybody would or could corroborate the claimant’s account of five months of abusive behaviour. No such corroboration was forthcoming. Witnesses suggested that the claimant was the aggressor and was the person most likely to use unacceptable and offensive language in the bar. In the absence of evidence to back up the claimant’s assertions, the respondent could take no further action against Mr Ninian.

[68]The Tribunal was satisfied that, if the evidence had supported the claimant, the respondent would have taken action against Mr Ninian. The Tribunal heard evidence that two staff members had made complaints about two other members of the club and their behaviour. The allegations were of aggressive conduct towards staff. One was a female member of staff and the other was male. The two club members were barred as a result of their conduct towards staff. This indicated to the Tribunal that, where there was evidence to substantiate allegations of misconduct against club members, the respondent was willing and able to take disciplinary action and exclude club members. They were not in a position to do this to Mr Ninian because, even when it was investigated, there was no evidence to back up the claimant’s allegations. The claimant had maintained that witnesses would corroborate what she had to say but no such witness evidence was found. Nor did the claimant produce such witness evidence.

[69]The Tribunal heard evidence from a number of the witnesses that the respondent would expect a ‘complaint’ about the behaviour of staff or members to be presented as a letter to the committee. On receipt of such a letter the committee would investigate the allegations before making a decision about what further steps were appropriate. The claimant never sent a letter of complaint to the committee. There was no clear complaint for them to investigate. Mr Murray suggested that the claimant had reported Mr Ninians’s conduct to him on a couple of occasions but it was done verbally. His evidence was that he told her to report the alleged conduct to Mr Regan. He did not say that he had passed on the report to the committee or that he knew of the claimant putting in a complaint to Mr Regan or the committee. He was not able to confirm that any complaint by the claimant had been ignored by the respondent.

[70]Following her dismissal, the claimant indicated an intention to appeal. She was assisted by Ms Crann in putting the appeal letter together. The committee identified an appeal panel of three to hear the claimant’s appeal: Gary Molyneux, Simon Cook and Louise Cowan. They were chosen due to their impartiality and their lack of prior involvement in the case.

[71]The claimant’s appeal letter was dated 23 March and made various complaints about the process used to dismiss her. It also alleged abuse, victimisation and harassment. As previously stated, it did not make some of the specific allegations which the claimant now relies upon for the purposes of her Tribunal claim.

[72]Ms Cowan introduced herself as the chair of the appeal panel and posted documents and a copy of the claimant’s contract through the claimant’s home letterbox. On 20 April Ms Cowan emailed Ms Crann to confirm that she had posted a letter to the claimant along with a copy of her contract of employment. The earliest opportunity for the claimant to attend an appeal hearing was 4 May. On 24 April Ms Cowan confirmed the date of the appeal hearing to Ms Crann as 4 May. On 25 April she further confirmed that she had posted the requested documents out to the claimant, which included the respondent’s disciplinary policy. On 2 May Ms Cowan emailed Ms Crann a copy of the respondent’s investigation report and a copy of the club rules and disciplinary policy.

[73]The appeal hearing took place on 4 May. At the start of the meeting Ms Crann produced a typed note which narrowed the points of appeal. The respondent’s panel used this note as an agenda for the meeting in order to ensure that they had addressed all of the claimant’s appeal points.

[74]Ms Crann made representations about the inadequacy of the procedure from the claimant’s point of view. Details of the complaints about Mr Ninian were outlined and it was alleged that they had not been dealt with after the first disciplinary meeting. The claimant spoke about problems with the menopause and emotional problems. She confirmed that she was taking antidepressants, although it was not suggested that this was as a result of Mr Ninian’s alleged behaviour. With regard to 4 March, the claimant said that she had ‘snapped’ and lost control. She said that she felt she had been subjected to this treatment by Mr Ninian because she was a woman but then went on to say that Mr Gleaves had been subjected to similar abusive behaviour from Mr Ninian. She said that she felt that her employer should have protected her and that she was targeted by Mr Ninian for saying ‘no.’ The claimant actually confirmed that Mr Ninian had never physically threatened her.

[75]The appeal panel deliberated after the meeting and concluded that the claimant had been dismissed because of her own misconduct. They concluded that there was no evidence to support the assertion that the claimant had been dismissed for any other reason and certainly not as a result of reporting the behaviour of a club member or for rejecting that alleged behaviour.

[76]On 9 May Ms Cowan wrote to the claimant with the outcome of the appeal. She dealt with each of the headings of appeal. With regard to the claimant’s complaints against Mr Ninian and Mr Hawkins it was found that these were acknowledged and reviewed in the course of the disciplinary process.

[77]In relation to ‘complaints’ to the respondent, the Tribunal observed that there is a difference between a clear or formal complaint which prompts or requires the respondent to investigate, and comments and observations made verbally to staff or committee members in passing or whilst on club premises. The respondent’s bar was the sort of environment where gossip and tittle tattle were likely to be prevalent. It was not every conversation with a member of management or the committee which could legitimately be said to raise a complaint which required action on the part of the respondent. There needed to be something about the complaint which would alert the respondent to the need to undertake an investigation or take other steps to address it. The most obvious way to make a complaint and get a resolution was to make a written complaint, either by letter to the committee or in writing to Mr Regan as Bar Manager. Mr Murray confirmed that the claimant had not made a complaint in writing to the committee or a complaint to Mr Regan prior to the disciplinary hearings. Even if Mr Murray was aware of the claimant’s allegations about Mr Ninian, he did not pass them on for investigation and the claimant did not act on his recommendation to make a formal complaint that could be looked into by the respondent. Furthermore, the Tribunal accepted that Mrs Ankers had asked for a shift change so that she did not have to work with the claimant. This was not a complaint and she did not want or ask for an investigation into the claimant. All she wanted was the shift change, which Mr Regan was happy to accommodate. This was not an example of the respondent ignoring a serious complaint by a staff member. Furthermore, as set out above, on receipt of two written complaints from staff about club members, the respondent investigated and decided to bar the two club members.

[78]The Tribunal found that, once the issue of Mr Ninian’s conduct was raised, the respondent did speak to all potential witnesses to Mr Ninian’s alleged conduct. They did not write down the evidence but we accept that they spoke to the relevant people. The witnesses did not corroborate the claimant’s allegations. Many of the witnesses did come to the Tribunal to confirm what they had said to the respondent and to deny that Mr Ninian had behaved as alleged. On that basis the Tribunal was able to accept that the respondent had carried out an investigation into the claimant’s allegations once they were raised. This was actually done. Whilst the claimant may have criticisms about the quality of the investigation and of the documented evidence it elicited, the Tribunal is satisfied that the investigation did take place. There was no refusal to investigate.

[79]The Tribunal also found that the claimant may have reported Mr Ninian to Mr Gleaves (with whom she had a personal relationship) but he took no further action about it. He did not refer the matter for investigation by the respondent. He did not pass it on. It is really only in the Tribunal documentation that the claimant says that she reported the issue to Mr Regan. Up until that point she had only said that she reported it to Mr Gleaves.

[80]The claimant’s case is based on her account that she was subjected to a pattern of abusive and inappropriate conduct from Mr Ninian over a period of some five months. The Tribunal is not satisfied that this is correct. Even if the claimant did not make a formal complaint initially, if she had complained verbally to Mr Regan (or someone else in circumstances where she expected her complaint to be investigated), she had ample time to chase up a response. She could (and should) have asked what was being done about her complaint. She could have put her complaints in writing, as Mr Murray suggested. She did not do this. The Tribunal finds that the claimant is unlikely to have accepted such a lack of action or response from the respondent if she had actually already made a report to the respondent about Mr Ninian’s conduct. She was perfectly able to escalate her concerns. The absence of any evidence of a complaint from the claimant over the five month period when she said the abuse was ongoing suggests that the claimant did not in fact make a complaint about Mr Ninian which the respondent could or should have investigated at the time. It also undermines the claimant’s assertions about Mr Ninian’s conduct itself. The absence of a documented complaint (when taken alongside the absence of corroborative evidence from other staff and potential witnesses) suggests that the Tribunal should prefer Mr Ninian’s denial of the alleged conduct to the claimant’s evidence about Mr Ninian’s conduct. Mr Ninian made appropriate concessions during his evidence but consistently denied the allegations of using foul and sex-related language towards or ‘at’ the claimant (with the one exception of telling the claimant to f*** off in response to her swearing and threats of violence.) The claimant’s evidence lacked credibility by comparison to Mr Ninian’s.

[81]The Tribunal heard from Ms Crann that the claimant was distressed over the period of some months prior to her dismissal and that she spent a lot of time confiding in Ms Crann about this. Although it was said that the claimant was distressed by matters at work, Ms Crann was not able to provide details of any particular incidents that the claimant had told her about at the relevant time (i.e. contemporaneously to the incidents in question.) Furthermore, she also said that the cause of some of the claimant’s distress was the menopause and previous relationship/personal problems. In those circumstances, the claimant may well have genuinely presented to Ms Crann as distressed during the relevant period. This does not establish that Mr Ninian and/or the respondent were the cause of that distress. It appears that there were other events in the claimant’s life at that time which could have been the cause of any such distress. Ms Crann’s evidence did not establish that Mr Ninian in fact acted in the way that the claimant alleges during the five months prior to her dismissal.

[82]The claimant’s particulars of claim also included a general allegation that Mr Ninian repeatedly called her a useless c**t or used that term to her. This was a generalized allegation with no particulars attached to it. In her witness statement she did not address it. She referred to two specific incidents at paragraphs 13 and 16 of her statement which the Tribunal has found were not proved by the evidence in the case. She did not address or give any evidence in relation to this more generalized allegation. She has not elaborated in relation to paragraph 33(ii) on [20]. The evidence from the other witnesses in the case and the available documentation does not support her allegation. The Tribunal was not satisfied that the claimant had proved this allegation. The law Indirect discrimination

The law

[83]Section 19 of the Equality Act 2010 states:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) It puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. …

[84]Indirect discrimination scrutinises requirements which look neutral on their face but which, in reality, work to the comparative disadvantage of people with a particular protected characteristic (Baroness Hale Chief Constable of West Yorkshire Police and another V Homer

2012 ICR 704

SC).

[85]All four conditions in section 19 (2) must be met. There must be a PCP which the employer applies or would apply to employees who do not share the protected characteristic of the claimant; that PCP must put people who share the claimant’s protected characteristic at a particular disadvantage when compared with those who do not share that characteristic; the claimant must experience that particular disadvantage; and the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim.

[86]The key element in indirect discrimination is the causal link between the PCP and the particular disadvantage suffered by the group and the individual. “Sometimes, perhaps usually, the reason [why the PCP results in the disadvantage] will be obvious: women are on average shorter than men, so a tall minimum height requirement will disadvantage women whereas a short maximum will disadvantage men. But sometimes it will not be obvious: there is no generally accepted explanation for why women have on average achieved lower grades as chess players than men, but a requirement to hold a high chess grade will put them at a disadvantage… Indirect discrimination assumes equality of treatment- the PCP is applied indiscriminately to all- but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.” (Essop and ors v Home Office (UK Border Agency) and another

2017 ICR 640

, per Baroness Hale).

[87]As explained in Essop the salient features of indirect discrimination are:(1) There is no express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others.

(2) While direct discrimination expressly requires a causal link between the less favourable treatment and a protected characteristic, indirect discrimination does not. Instead, it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual.

(3) The reasons why one group may find it harder to comply with the PCP than others are many and various. The reason for the disadvantage need not be unlawful in itself or be under the control of the employer (although sometimes it will be). Both the PCP and the reason for the disadvantage are “but for” causes of the disadvantage: removing one or the other would solve the problem.

(4) There is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage.

(5) It is commonplace for the disparate impact or particular disadvantage, to be established on the basis of statistical evidence.

(6) It is always open to a respondent to show that its PCP is justified. Accordingly, there is no need to prove the reason why the PCP in question puts or would put the effective group at a particular disadvantage. What is required is correspondence between the disadvantage suffered by the group and the disadvantage suffered by the individual.

[88]The first step is the identification of the PCP. The EHRC Employment Code 2011 confirms that the term “provision, criterion or practice” is capable of covering a wide range of conduct: “the phrase… Is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions” (paragraph 4.5). It also states that a provision criterion or practice may include decisions to do something in the future- such as a policy or criterion that has not yet been applied- as well as a ‘one-off’ or discretionary decision.

[89]In Ishola v Transport for London

[2020] IRLR 368

(a reasonable adjustments case) the Court of Appeal emphasised that the words 'provision, criterion or practice' are not terms of art, but are ordinary English words and that they are broad and overlapping, and not to be narrowly construed or unjustifiably limited in their application. A PCP has been interpreted to cover both formal and informal practices of employers, and it certainly includes rules and policies found in collective agreements, works rules and the like, as well as terms of employment specifically spelled out in job advertisements and offers of employment. Further, it does not have to be express or conscious. However, it is important to note the comment of Simler LJ in Ishola : ''In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.''

[90]To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. The comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.

[91]One issue is whether a one-off act can be a PCP. Simler LJ in Ishola stated:38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.

39. In that sense, the one-off decision treated as a PCP in Starmer

[2005] IRLR 863

is readily understandable as a decision that would have been applied in future to similarly situated employees. However, in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J (President) referred to “practice” as having something of the element of repetition about it. In the Nottingham case

[2013] Eq LR 4

in contrast to Starmer, the PCP relied on was the application of the employer's disciplinary process as applied and (no doubt wrongly) understood by a particular individual; and in particular his failure to address issues that might have exonerated the employee or give credence to mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual's case and by inference, there was nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way.

[92]The indication from the Ishola case is that, although a one-off decision or act could amount to a practice, it is not necessarily one.

[93]A PCP need not impose an absolute bar on the employee in order to be caught by section 19.

[94]A PCP must not be exclusive to a group sharing a protected characteristic. There is no statutory requirement that a PCP actually apply to members of the comparative group because it allows for the creation of a hypothetical comparator. It is a requirement that the PCP puts or would put people who share the claimant’s protected characteristic at a particular disadvantage when compared with people who do not have that characteristic. The Act also requires that it puts or would put the claimant herself at that disadvantage.

[95]Once it is clear that there is a provision, criterion or practice which puts or would put people sharing the claimant’s characteristic at a particular disadvantage the next stage is to consider a comparison between workers with the protected characteristic and those without it. The circumstances of the two groups must be sufficiently similar for a comparison to be made and there must be no material difference in circumstances (section 23 Equality Act).

[96]The starting point for identifying the proper pool for comparison should be to focus on the PCP in question, since the pool should flow logically from the PCP. The pool for comparison generally consists of the group which is (or would be) affected (either positively or negatively) by the PCP in question. It may sometimes be necessary to carry out a formal comparison between the groups using statistical evidence but this is not always needed. Statistical analysis is not the only method of establishing a particular disadvantage or a disparate impact. Claimants may rely on evidence from expert and other witnesses and tribunals may take “judicial notice” of certain matters that are well known such as the adverse impact caused to women by refusal to allow part-time working. If there is no relevant statistical evidence the experience of those who belong to the group sharing protected characteristics is important material for a tribunal to consider. Such individuals may be able to provide compelling evidence of disadvantage even if there are no statistics. A tribunal should then evaluate such evidence in the usual way, reaching conclusions as to its reliability and making appropriate findings of fact.

[97]Dobson v North Cumbria Integrated Care NHS Foundation Trust

2021 IRLR 729

dealt with issues of ‘judicial notice’ and identified a number of principles:a. There are two broad categories of matters of which judicial notice may be taken: facts that are so notorious or so well established to the knowledge of the court or the tribunal that they may be accepted without further enquiry; and other matters that may be noticed after inquiry, such as referring to works of reference or other reliable and acceptable sources.

b. The court or tribunal must take judicial notice of matters directed by statute and of matters that have been so noticed by the wellestablished practice or precedents of the courts.

c. Beyond that, the tribunal has a discretion and may or may not take judicial notice of a relevant matter and may require it to be proved in evidence.

d. The party seeking judicial notice of a fact has the burden of convincing a judge that the matter is one capable of being accepted without further inquiry.

[98]The EHRC Code states that “disadvantage” is to be construed as “something that a reasonable person would complain about so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently” paragraph 4.9.

[99]It is not enough for a claimant to show that a PCP has placed those sharing his or her characteristic at a disadvantage: the disadvantage must be a “particular” disadvantage. Particular disadvantage does not refer to serious, obviously particularly significant cases of inequality but instead denotes that it is particularly persons of a given protected characteristic who are at a disadvantage because of the practice in issue.

[100]Indirect discrimination is still unlawful even where the discriminatory effect of the PCP is unintentional unless the respondent establishes the objective justification defence.

[101]When considering an employer’s justification defence the ‘legitimate aim’ must be identified. The aim pursued should be legal, should not be discriminatory in itself and must represent a real, objective consideration. The objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. (Bilka-Kaufhaus GmBH v Weber von Hartz

[1986] IRLR 317

[102]The question as to whether an aim is “legitimate” is a question of fact for the tribunal. The categories are not closed, although cost saving on its own cannot amount to a legitimate aim (Woodcock v Cumbria Primary Care Trust

2012 ICR 1126

[103]Once the legitimate aim has been identified and established it is for the respondent to show that the means used to achieve it were proportionate. Treatment is proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim. A three- stage test is applicable to determine whether criteria are proportionate to the aim to be achieved. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective? (R(Elias) v Secretary of State for Defence

[2006] IRLR 934

[104]Determining proportionality involves a balancing exercise. An employment tribunal may wish to conduct a proper evaluation of the discriminatory effect of the treatment as against the employer’s reasons for acting in this way, taking account of all relevant factors (EHRC Code paragraph 4.30). The measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see EHRC Code (para 4.31). It will be relevant for the tribunal to consider whether or not any lesser measure might have served the aim.

[105]It is necessary to weigh the need against the seriousness of the detriment to the disadvantaged person. It is not sufficient that the respondent could reasonably consider the means chosen as suitable for achieving the aim. To be proportionate a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so (Homer v Chief constable of West Yorkshire Police Authority

[2012] IRLR 601

.) Section 26: harassment

[106]Section 26 states:(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) …

(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. 107. ‘Unwanted’ conduct is essentially the same as ‘unwelcome’ or ‘uninvited’ conduct.

[108]Harassment will be unlawful pursuant to section 26 if the unwanted conduct related to a relevant protected characteristic had either the purpose or the effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

[109]The harassment has to be “related to” a particular protected characteristic. The tribunal is required to identify the reason for the harassment with a particular focus on the context of the particular case. In Unite v Naillard

[2017] ICR 121

the EAT indicated that section 26 requires the tribunal to focus upon the conduct of the individual(s) concerned and ask whether their conduct is associated with the protected characteristic. In that case it was not enough that an individual had failed to deal with sexual harassment by a third party unless there was something about the individual’s own conduct which was related to sex. The focus will be on the person against whom the allegation of harassment is made and his conduct or inaction. So long as the tribunal focuses on the conduct of the alleged perpetrator himself it will be a matter of fact whether the conduct is related to the protected characteristic. As stated in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, “there must still … be some feature or features of the factual matrix identified by the tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found have led to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.”

[110]The test as to the effect of the unwanted conduct has both subjective and objective elements to it. The subjective element involves looking at the effect of the conduct on the particular complainant. The objective part requires the tribunal to ask itself whether it was reasonable for the complainant to claim that the conduct had that effect. Whilst the ultimate judgement as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant’s subjective perception of the conduct in question must also be considered. So, whilst the victim must have felt or perceived her dignity to have been violated or an adverse environment to have been created, it is only if it was reasonable for the victim to hold this feeling or perception that the conduct will amount to harassment. Much depends on context. See the guidance Richmond Pharmacology v Dhaliwal

[2009] ICR 724

revisited in Pemberton v Inwood [2018] IRLR where Underhill LJ stated: In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (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—subsection (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.” The context of the conduct and whether it was intended to produce the proscribed consequences are material to the tribunal’s decision as to whether it was reasonable for the conduct to have the effect relied upon. Chawla v Hewlett Packard Ltd

[2015] IRLR 356

[111]As stated in Dhaliwal: ‘If, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question.”

[112]Section 26(3) also recognises the specific problem that can arise when a victim is treated less favourably by another person because of their response to harassment. Under section 26(3) it is harassment where the complainant suffers less favourable treatment because they rejected, or submitted to, unwanted conduct of a sexual nature or unwanted conduct which was related to gender reassignment or sex. To establish such a complaint, there must have been unwanted conduct of a sexual nature or which was related to gender reassignment or sex, which had the purpose or effect referred to at section 26(1)(b) and because of the complainant's rejection of or submission to that conduct, they have been treated less favourably. Burden of Proof

[113]Section 136 of the Equality Act 2010 provides that, once there are facts from which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof “shifts” to the respondent to prove any non-discriminatory explanation. The two-stage shifting burden of proof applies to all forms of discrimination under the Equality Act including direct discrimination, harassment, indirect discrimination, discrimination arising from disability under section 15 and the failure to make reasonable adjustments under section 20. Although similar principles apply, what needs to be proved depends, to a certain extent, on the nature of the legal test set out in the respective statutory sections.

[114]The wording of section 136 of the act should remain the touchstone.

[115]The relevant principles to be considered have been established in the key cases: Igen Ltd v Wong

2005 ICR 931

; Laing v Manchester City Council and another ICR 1519; Madarassy v Nomura International Plc

2007 ICR 867

; and Hewage v Grampian Health Board

2012 ICR 1054

[116]The correct approach requires a two-stage analysis. At the first stage the claimant must prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out on the balance of probabilities is the second stage engaged, whereby the burden then “shifts” to the respondent to prove (on the balance of probabilities) that the treatment in question was “in no sense whatsoever” on the protected ground.

[117]The approved guidance in Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] ICR 1205

(as adjusted) can be summarised as: a) It is for the claimant to prove, on the balance of probabilities, facts from which the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. If the claimant does not prove such facts, the claim will fail. b) In deciding whether there are such facts it is important to bear in mind that it is unusual to find direct evidence of discrimination. In many cases the discrimination will not be intentional. c) The outcome at this stage will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. The tribunal does not have to reach a definitive determination that such facts would lead it to conclude that there was discrimination, it merely has to decide what inferences could be drawn. d) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. These inferences could include any that it is just and equitable to draw from an evasive or equivocal reply to a request for information. Inferences may also be drawn from any failure to comply with the relevant Code of Practice. e) When there are facts from which inferences could be drawn that the respondent has treated the claimant less favourably on a protected ground, the burden of proof moves to the respondent. It is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever on the protected ground. f) Not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment. Since the respondent would generally be in possession of the facts necessary to provide an explanation, the tribunal would normally expect cogent evidence to discharge that burden.

[118]The shifting burden of proof rule only applies to the discriminatory element of any claim. The burden remains on the claimant to prove that the alleged discriminatory treatment actually happened and that the respondent was responsible. The statutory burden of proof provisions only play a role where there is room for doubt as to the facts necessary to establish discrimination. In a case where the tribunal is in a position to make positive findings on the evidence one way or another as to whether the claimant was discriminated against on the alleged protected ground, they have no relevance (Hewage). If a tribunal cannot make a positive finding of fact as to whether or not discrimination has taken place it must apply the shifting burden of proof.

[119]Where it is alleged that the treatment is inherently discriminatory, an employment tribunal is simply required to identify the factual criterion applied by the respondent and there is no need to inquire into the employer’s mental processes. If the reason is clear or the tribunal is able to identify the criteria or reason on the evidence before it, there will be no question of inferring discrimination and thus no need to apply the burden of proof rule. Where the act complained of is not in itself discriminatory and the reason for the less favourable treatment is not immediately apparent, it is necessary to explore the employer’s mental processes (conscious or unconscious) to discover the ground or reason behind the act. In this type of case, the tribunal may well need to have recourse to the shifting burden of proof rules to establish an employer's motivation.

[120]The claimant bears the initial burden of proving a prima facie case of discrimination on the balance of probabilities. The requirement on the claimant is to prove on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination. The employer’s explanation (if any) for the alleged discriminatory treatment should be left out of the equation at the first stage. The tribunal must assume that there is no adequate explanation. The tribunal is required to make an assumption at the first stage which may in fact be contrary to reality. In certain circumstances evidence that is material to the question whether or not a prima facie case has been established may also be relevant to the question whether or not the employer has rebutted that prima facie case.

[121]The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, with more, sufficient material from which tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination (see Madarassy).

[122]If the claimant establishes a prima facie case of discrimination the second stage of the burden of proof is reached and the burden of proof shifts onto the respondent. The respondent must at this stage prove, on balance of probabilities that its treatment of the claimant was in no sense whatsoever based on the protected characteristic.

[123]In some instances, it may be appropriate to dispense with the first stage altogether and proceed straight to the second stage (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

.) The employment tribunal should examine whether or not the issue of less favourable treatment is inextricably linked with the reason why such treatment has been meted out to the claimant. If such a link is apparent, the tribunal might first consider whether or not it can make a positive finding as to the reason, in which case it will not need to apply the shifting burden of proof rule. If the tribunal is unable to make a positive finding and finds itself in the situation of being unable to decide the issue of less favourable treatment without examining the reason, it must examine the reason (i.e. conduct the two stage inquiry) and it should be for the employer to prove that the reason is not discriminatory, failing which the claimant must succeed in the claim.

[124]In a case of harassment under section 26 of the Equality Act the shifting burden of proof in section 136 will still be of use in establishing that the unwanted conduct in question was “related to a relevant protected characteristic” for the purposes of section 26(1)(a). Where the conduct complained of is clearly related to protected characteristic then the employment tribunal will not need to revert to the shifting burden of proof rules at all. Where the conduct complained of is ostensibly indiscriminate the shifting burden of proof may be applicable to establish whether or not the reason for the treatment was the protected characteristic. Before the burden can shift to the respondent the claimant will need to establish on the balance of probabilities that she was subjected to the unwanted conduct which had the relevant purpose or effect of violating dignity, creating an intimidating etc environment for her. The claimant may also need to adduce some evidence to suggest that the conduct could be related to the protected characteristic, although she clearly does not need to prove that the conduct is related to the protected characteristic as that would be no different to the normal burden of proof.

[125]In a claim of indirect discrimination, following the case of Dziedziak v Future Electronics Ltd EAT 0271/11 the matters that would have to be established before there could be any reversal of the burden of proof would be, first, that there was a provision, criterion or practice; secondly, that it disadvantaged [those who share the protected characteristic] generally, and thirdly, that what was a disadvantage to the general created a particular disadvantage to the individual claimant. Only then would the employer be required to justify the provision, criterion or practice. It appears that the burden lies on the claimant to establish the 1st 2nd and 3rd elements of the statutory definition, only then does it fall to the employer to justify the PCP as a proportionate means of achieving a legit aim. Notice pay

[126]Wrongful dismissal is a common law contractual claim. The issue is the employee's conduct and whether the employee was in fundamental breach of contract. The reasonableness of the employer's belief as to the employee’s guilt is immaterial. The question is whether the employer was entitled to dismiss the employee without notice. The claim may be defended upon the basis that the employee was in repudiatory breach of the contract entitling the employer to dismiss without giving notice.

[127]The damages for a successful claim are generally limited to the benefits that would have accrued to the employee during the notice period. The aim of damages is to place the employee in the position they would have been in had the contract been performed by the employer giving the correct notice of termination to the employee.

[128]A repudiatory breach of contract is one which goes to the root of the contract. It is a very serious breach of contract. In most cases the question will be framed in terms of gross misconduct. Gross misconduct is so serious that it is repudiatory and entitles the employer to dismiss summarily. Cases involving repudiatory breaches by employees often rely on serious misconduct by the employee, such as dishonesty, intentional disobedience or negligence. They often refer to ‘gross misconduct’ and ‘gross negligence’, but the legal test to be applied by courts and tribunals is not whether the employee’s negligence or misconduct should be called ‘gross’, but whether it amounts to repudiation of the whole contract. This is a question of fact.

[129]The implied term of mutual trust and confidence applies to both parties to the contract and the employee is also bound by the term that the employee is to provide loyal service to the employer. In determining whether an employee has repudiated the contract of employment, factors such the nature of the employment and the employee’s past conduct will be relevant. A court or tribunal must be satisfied, on the balance of probabilities, that there was an actual repudiation of the contract by the employee. It is not enough for an employer to prove that it had a reasonable belief that the employee was guilty of gross misconduct. This is a material difference from the proof needed in an unfair dismissal claim where the issue is of reasonable belief.

[130]Whether the conduct is sufficiently serious to warrant summary dismissal will depend upon the circumstances and the nature of the business and position of the employee.

[131]If an employer dismisses an employee for repudiatory conduct the employer is accepting the employee's breach as terminating the need for the employer, to continue to perform its side of the employment contract bargain.

[132]A tribunal deciding a claim for notice pay has to decide whether the claimant actually committed the repudiatory breach of contract. They must make their own findings of fact in relation to this issue. In Mgubaegbu v Homerton University Hospital NHS Employment Foundation Trust

UKEAT/0218/17

(18 May 2018, unreported) Choudhury J issued a reminder of this principle, saying (at [40]): 'The Tribunal must make its own findings of fact in relation to the breach in order to determine whether that breach was sufficiently serious to warrant immediate termination.' By contrast, in the statutory claim of unfair dismissal the question is not whether the claimant in fact committed a repudiatory breach of contract but rather whether the employer had a genuine belief in the employee’s guilt, based on reasonable evidence following a reasonable investigation. The Tribunal does not decide whether it thinks the repudiatory breach in fact occurred for the purposes of the unfair dismissal claim. It must decide the statutory questions posed by section 98 of the Employment Rights Act 1996. The Tribunal’s conclusions in this case. Wrongful dismissal

[133]The claimant’s complaint of wrongful dismissal must fail and be dismissed. On the claimant’s own case she admitted to the alleged misconduct. She accepted that she had used the foul language towards Mr Ninian, that she had threatened him with violence and that she had offered to take him outside to resolve the argument. These actions are a clear example of gross misconduct which would entitle the respondent to dismiss the claimant summarily (i.e without notice.) They constitute a repudiatory breach of contract, particularly given that the claimant was employed in a customer service role and the misconduct related to serious mistreatment of one of the respondent’s customers/members.

[134]As the claimant has effectively admitted the gross misconduct, the claim of wrongful dismissal cannot succeed. Further, there is ample evidence available for the Tribunal itself to conclude that the claimant’s conduct constituted a repudiatory breach of contract which entitled the respondent to dismiss her summarily. Indirect discrimination

[135]The claimant asserts that the respondent operated a PCP of refusing to investigate complaints of a sex-related nature. The respondent denied the existence of such a PCP or that the claimant was, as an individual, put at a particular disadvantage by the PCP. The respondent did not seek to argue that there was no group disadvantage. Nor did the respondent seek to rely on a justification defence (i.e. that it was a proportionate means of achieving a legitimate aim.)

[136]The Tribunal found that, whilst the claimant may have said something to Mr Gleaves about Mr Ninian’s behaviour prior to 4 March, she did not make a complaint to him that she expected him to act upon in the course of his employment with the respondent. She did not make a formal complaint which she wanted him to investigate as her line manager. She did not invite a response from the respondent through her communications with Mr Gleaves. This was not a refusal to investigate on the respondent’s part. Taken at its highest, the respondent did not know that it was being presented with a complaint which it was expected to investigate.

[137]The claimant did not make a complaint about Mr Ninian/report Mr Ninian to Mr Regan or to the respondent’s Committee prior to the events of 4 March. She did not put anything in writing or seek some form of redress from them as representatives of her employer. At most, the claimant mentioned the problem to Mr Gleaves but he did not pass it up the chain of command to Mr Regan or to the Committee. Mr Regan and the Committee did not know that there was a complaint that was to be investigated. Again, they did not refuse to investigate complaints of a sex-related nature.

[138]The claimant’s allegations or complaints about Mr Ninian only became apparent to the respondent once the disciplinary allegations were made about the claimant after the events of 4 March. It was only at this stage that it can really be said that there was a sex-related complaint for the respondent to investigate. At this stage there was a complaint and it could be interpreted as sex-related/ an allegation of harassment related to sex.

[139]Once the claimant’s allegations became clear, the respondent investigated them. In such circumstances it cannot be said to have operated a PCP of refusing to investigate complaints of a sex-related nature. Once it was aware of the complaints, it looked into them. The respondent acted to investigate once it was reasonably put on notice of the complaint/allegation. There was no refusal to investigate by or on behalf of the respondent.

[140]Given the Tribunal’s findings of fact, the claimant cannot show that the respondent refused to investigate complaints of a sex related nature. The only complaint she made was to Mr Gleaves, not to others within the respondent who were in a position to commission an investigation. The claimant’s communications with Mr Gleaves about Mr Ninian were not such as to suggest that she wanted an investigation or that she was asking for some form of redress through the respondent’s internal processes and procedures. In such circumstances it is doubtful whether there was anything to trigger an investigation into complaints of a sex-related nature in the earlier stages of the chronology.

[141]Later in the chronology there was a complaint of a type which could have triggered an investigation and the Tribunal’s findings of fact indicate that the respondent did not refuse to investigate. Once the claimant’s allegations were received and understood, the respondent did not refuse to investigate but actually interviewed and investigated with all potential witnesses in order to see if the complaint could be substantiated. It could not be substantiated on the available evidence. This is not a failure or a refusal to investigate. Rather, the claimant is dissatisfied with the outcome of the investigation which the respondent actually carried out. However, that is not the PCP on which the claimant relies for the purposes of the indirect discrimination claim.

[142]As the claimant has failed to prove her PCP the complaint of indirect discrimination falls to be dismissed at that stage.

[143]Further, on the facts, the claimant cannot show that she was put at a disadvantage by the alleged PCP as the claimant’s complaint was investigated. Once the claimant’s complaint was known it was acted upon. The PCP was not applied to the claimant. There was no individual disadvantage. This is another reason why the complaint of indirect discrimination cannot succeed.

[144]In the circumstances, the required elements of the statutory test for indirect discrimination are not met on the facts of this case. Harassment

[145]In relation to the complaint of harassment pursuant to section 26(3), the Tribunal has concluded that Mr Ninian did not engage in the conduct alleged at paragraph 33 of the Particulars of Claim. The claimant has failed to prove her case in this regard. She has not proved her factual allegations. The complaint of harassment would therefore fall to be dismissed on the facts at this stage.

[146]If the allegations against Mr Ninian had been proved the Tribunal accepts that his conduct would have been properly characterised as ‘related to sex.’ That aspect of the statutory test would have been met. However, the Tribunal would not have been satisfied that it had either the purpose or the effect of violating the claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant within the meaning of section 26. All the evidence indicates that the claimant was not affected in this way by this sort of language and/or conduct. If she had been on the receiving end of such behaviour it would, to coin a phrase, have been ‘water off a duck’s back.’ The claimant used this sort of language frequently in the workplace herself and was not, apparently, in the least bit perturbed by it. She also threatened violence to Mr Ninian. In addition, she discussed her sex life in the workplace and pressured colleagues and club members to look at explicit photos of her and her partner (who was also her colleagues’ line manager.) The Tribunal cannot accept that she was able and willing to act in this way at work but would still have found her dignity to be violated or would have felt that her environment at work was intimidating, hostile, degrading, humiliating or offensive if Mr Ninian had acted towards her in the way that she alleges. The Tribunal concluded that such conduct by Mr Ninian, if it had been proven, would not have had the necessary effect on the claimant within the meaning of section 26 in all the circumstances of the case and taking into account the matters specified in section 26(4).

[147]Furthermore, the Tribunal is satisfied that the only reason the claimant was dismissed was because of her own, admitted gross misconduct. The respondent did not consider that Mr Ninian had harassed the claimant and was not aware that the claimant had either rejected it or submitted to such behaviour. That is to say, the claimant’s reaction to Mr Ninian’s conduct was wholly irrelevant to the respondent’s decision to dismiss the claimant. The respondent did not treat the claimant less favourably than it would have done if the claimant had not rejected or submitted to the conduct in question (section 26(3) Equality Act.)

[148]In light of the above, the complaint of section 26(3) harassment therefore fails and is dismissed. Statement of employment particulars

[149]As the other legal claims in this case have all failed and been dismissed, the Tribunal would not have been able to make an award of compensation under section 38 of the Employment Act 2002 in relation to any failure to provide an initial statement of employment particulars. (It is only where one of the other claims is upheld that such an award of compensation can be made.) In any event, the claimant admitted that the respondent did provide her with a written copy of her terms and conditions (as they would have been at the start of her employment) and that it did so before she presented her ET1 claim form. Section 38 asks the Tribunal to consider whether the respondent was in breach of its section 1 duty when the Tribunal proceedings were begun. The respondent was not in breach at that time. Consequently, the complaint under section 38 Employment Act 2002 would have to have failed in any event. For both those reasons that complaint is also dismissed.

[150]For the reasons set out above, all of the claimant’s claims in these proceedings fail and are dismissed.