Ms G Ursuleanu v Vicars Cross Healthcare Ltd and Others: 2407268/2023
EMPLOYMENT TRIBUNALS
Case No 2407268/2023
Between
Ms G UrsuleanuClaimantVicars Cross Healthcare Ltd and OthersRespondent
Before
Employment Judge K M RossDate 31 December 2025
JUDGMENT
The judgment of the Tribunal is that: Potentially Liable Respondents under Equality Act 2010.[1]There is no dispute that Respondent 6, Nicholas James Goodwin is an employee of Respondent 1, Vicars Cross Healthcare Limited and accordingly Respondent 1 will be liable under section 109 of the Equality Act 2010 for any alleged acts of discrimination, harassment or victimisation committed by R6.[2]I find that Respondent 4, Dale Michael Rae meets the definition of “employee” under section 109(1) Equality Act 2010 because he was engaged under a contract to do work personally, and accordingly Respondent 1 will be liable under section 109 of the Equality Act 2010 for any alleged acts of discrimination, harassment or victimisation committed by R4.[3]In the alternative, if I am wrong about my judgment in paragraph 2 above, I find that Respondent 1 is liable under section 109(2) Equality Act 2010 for the acts of respondent 4, Dale Michael Rae, because I find R4 was an agent acting under the principal’s (R1) authority.[4]I find Respondent 4 and Respondent 6 are potentially personally liable under section 110 of the Equality Act 2010 for any alleged act of discrimination, harassment or victimisation as an employee or agent. Potential Liability of R4 for the claimant’s claim of public interest disclosure detriment “whistleblowing”.[5]I find Respondent 4 (who is alleged to have subjected the claimant to detriment for making protected disclosures) is liable for any such act of alleged detriment under section 47B(1A) Employment Rights Act 1996 as a worker, applying the extended definition of that term in section 43K by reason of section 47B(3), or as agent of the first Respondent. Therefore Respondent 1 will be liable for the actions of R4 under section 47B(1B) ERA 1996.[6]I find the alleged qualifying disclosures made to respondent 4 (Dale Michael Rae) on 25 February 2023 and 25 March 2023 were made to the “claimant's employer” and so a protected disclosure under section 43C1(a) Employment Rights Act 1996. For the purposes of deciding this issue only it was assumed that the disclosures were a qualifying disclosure. This does not amount to a finding that they were qualifying disclosures and that issue is to be determined at the final hearing. Potential Liability of R3 and R5 under Equality Act 2010 and Employment Rights Act 1996 for the claimant’s claim of public interest disclosure detriment claim “whistleblowing”.[7]I find Respondent 3 and Respondent 5 are purely volunteers and do not meet the relevant definitions under s109 and s110 Equality Act 2010 or the definition of worker under s43K ERA 1996 above, and accordingly the Tribunal does not have jurisdiction to hear legal claims against them. Accordingly they are struck out as respondents to this case.[1]The complaint of harassment related to sex on 12 March 2023 and 15 March 2023 is successful.[2]All other complaints of harassment related to race and sex are unsuccessful and are dismissed.[3]The complaint of direct race and/or sex discrimination is unsuccessful and is dismissed.[4]The complaint of victimisation is unsuccessful and is dismissed.[5]The complaint of detriment because of a protected disclosure is unsuccessful and is dismissed. The complaint of sexual harassment is successful.
REASONS
[1]The claimant worked as a security guard for the respondent, a pharmacy with a vaccination centre, during the Covid 19 pandemic.[2]The claimant is Romanian and English is not her first language. The claimant was assisted during the course of the hearing by an interpreter.[3]During the case management of this matter the claimant withdrew a number of complaints. The List of Issues prepared by Employment Judge Aspinall at the case management preliminary hearing on 30 July 2025 reflected where complaints had been withdrawn and those that were pursued.[4]It was necessary to amend the List of Issues to reflect that the claimant pursued the complaint of harassment related to both sex and race.[5]On 20 June 2024 the Tribunal determined that the first respondent will be vicariously liable for the acts of the second and third respondent. The first respondent subsequently confirmed that it was not pursuing the statutory defences.[6]The Tribunal also determined that any qualifying disclosure made to the second respondent would be a protected disclosure because they were made to the claimant’s employer.
Evidence
[7]The parties could not agree a file of documents. As a result, the Tribunal had to navigate two sets of documents. The Tribunal heard evidence from the claimant. The Tribunal also heard evidence from the third respondent who is a pharmacist and owner of the first respondent. Finally, the Tribunal heard remote evidence from the second respondent who is also a pharmacist and was responsible for managing the first respondent’s vaccination centre.
Issues
[8]The List of Issues agreed with Employment Judge Aspinall at the case management preliminary hearing on 30 July 2025 is contained within the Annex to this judgment. Relevant Findings of Fact The first respondent’s site[9]The third respondent is a pharmacist and the owner of the first respondent. During the Covid-19 pandemic, the first respondent opened a vaccination centre. The claimant was employed as a security guard for the site. Prior to the claimant’s appointment the security guard had been a white English heterosexual male.[10]The second respondent is also a pharmacist and was engaged by the first respondent to manage the vaccination centre.[11]The vaccination centre comprised of some members of the pharmacy staff working as vaccinators and also independent contractor vaccinators. There were approximately eight vaccinators working at the centre.[12]The staff were assisted by a group of volunteers. Sally Turnbull, a member of pharmacy staff, was responsible for managing the claimant and the volunteers.[13]The pharmacy and vaccination centre were in adjoining buildings. However, in order to get into one building, it was necessary to go outside onto the pavement to enter the other building. Claimant’s employment[14]The claimant is a qualified security guard. The claimant worked for the first respondent from August 2022 until 31 March 2023 on a fixed term contract.[15]The claimant gave evidence that her induction amounted to a few instructions from Joey, the Head Vaccinator. However, the Tribunal has determined that there was an expectation from the first respondent that the claimant would check that the members of the public in the queue were eligible for vaccination.[16]The claimant also gave evidence that on occasion ineligible people had been let through to vaccinators, and this led to conflict. As a result, the claimant started making notes in her notebook in order to cover her decision-making process.[17]The claimant also sought to source her own bodycam and asked if she could use it to ensure that her interactions with members of the public were recorded. By March 2023, the claimant was also recording conversations in the workplace.[18]During the course of her employment, the claimant struck up a friendship with the second respondent and was aware that he had a male dog called Jango. The claimant asked the second respondent to send videos of his dog to her.[19]Whilst the claimant was employed by the first respondent, the claimant had the perception that the second respondent was her second line manager.[20]The Tribunal has determined that the second respondent was initially on the site of the vaccination centre in 2022. However, by the beginning of 2023 the second respondent had moved to London and only returned to the site for specific reasons, such as the NHS visit on 13 March 2023.[21]On 31 March 2023 the claimant’s fixed term contract came to an end. Claimant’s reports of concerning behaviour[22]On 7 November 2022 the claimant recorded in her notebook that she had reported to the second and third respondents that Tom, a vaccinator, was not vaccinating and this led to people waiting in the queue for over an hour.[23]The claimant recorded that the third respondent told her to ask Tom to vaccinate but that she didn’t feel comfortable doing this. The claimant subsequently contacted the second respondent who said that he would speak to the third respondent.[24]On 28 November 2022 the claimant sent a message to the second respondent asking if he had checked Tom’s vaccination records. The claimant asked the second respondent to inform the vaccinators that the flu vaccination could also be administered. The claimant told the second respondent that the third respondent was busy and was sending those asking for the flu vaccination into the vaccination centre.[25]The message read “Nick is busy and send them here but Tom” – the claimant then inserted two emojis of an animal covering its eyes with its hands. The Tribunal has determined that this is the claimant showing her frustration at Tom’s response to those seeking the flu vaccination.[26]On 7 February 2023 the claimant told the second respondent that Tom had refused to vaccinate a woman over the aged of 65 despite the woman being in possession of a vaccination appointment.[27]On 17 February 2023 the claimant told the second respondent that a vaccinator called Michael had vaccinated a member of the public who, despite having alopecia, was ineligible for the vaccination.[28]On 25 February 2023 the claimant recorded in her notebook that there had been an inspection of the site by the Cheshire Fire Brigade. Following the inspection the claimant sent the second respondent a message that said “Hi”. In response the second respondent sent the claimant a “GIF” with the phrase “Drama Incoming” followed by a message which read “one second”.[29]In response the claimant informed the second respondent that all staff needed to sign a fire risk assessment and the fire extinguishers needed to be tested.[30]On 12 March 2023 the claimant sent a message in the “Vicars Cross Vax” group that comprised of 13 members stating: “please remember about fire exit sign, fire extinguishers and fire risk assessment.” The claimant also sent two further messages reminding the group what needed to be done prior to the NHS visit of the site on 13 March 2023.[31]The second respondent responded to each of the three messages with a message that read “already sorted today don’t worry”. In response to the claimant’s subsequent thumbs up emoji, the second respondent sent a “GIF” with the phrase “BITCH I AM LYING”, followed by a message that read “But I will sort”, followed by a laughing emoji.[32]On 12 March 2023 the claimant sent a video message to the second respondent in which she was crying because the second respondent had referred to the claimant as a “bitch”. The claimant also told the second respondent that a volunteer had, on 10 March 2023, told the claimant that she “went to school with Putin” and that she was “acting like Putin.”[33]On 13 March 2023 the second respondent apologised to the claimant for sending the “GIF”.[34]On 20 March 2023 the claimant told the second respondent that she felt uncomfortable working with the volunteer and asked not to see him again for the duration of her contract. The second respondent sent the claimant a response stating he would make sure that the volunteer was not there at all.[35]On the same date the claimant forwarded her video of 12 March 2023 and the messages between the claimant and the second respondent to the third respondent. In response the third respondent asked the claimant to leave it with him, and he would see what he could do.[36]On 24 March 2023 the same volunteer visited the first respondent’s site during the claimant’s shift. This caused the claimant to have a panic attack. The claimant sent a message to the second respondent asking how this had been allowed to happen.[37]The second respondent told the claimant that the volunteer had been told not to come back on site until April (after the claimant’s contract had ended). On learning that the claimant was having a panic attack, the second respondent told the claimant to go home and said that she could remain at home until the end of her contract.[38]The claimant also sent a message to the third respondent asking how this had been allowed to happen and sent a screen shot of messages between the claimant and Sally Turnbull in which Sally Turnbull stated that the volunteer had been told not to come back on site until April. The third respondent responded to ask if the volunteer had gone and the claimant confirmed that he had after Sally Turnbull had intervened. Comments made in the workplace[39]On 15 March 2023 the claimant overheard two male vaccinators making comments about female colleagues whilst looking at social media. The claimant overheard the following comments: “no the turkey, I need some sweet of baby, sweet of dicks head” “I can’t believe like a child, you know what I mean? How old do you think she is?” “you used to work one in one out” “was the one you couldn’t stop looking at in that video. She was so…appreciate” “take target so you know what I mean” “lot of people back on the gym, open an eye”[40]One of the vaccinators involved, Tom, realised that the claimant could hear what was being said and commented “don’t say that in front of the Jangovivioo”.[41]On 17 March 2023 the second respondent said to the claimant: “I hate a lot of older British people and some younger and how they are inherently racist and naïve to what they are saying”. Relevant Legal Principles Discrimination[42]Discrimination in employment is prohibited by section 39(2) Equality Act 2010: “An employer(a) (A) must not discriminate against an employee of A's(b) (B) – (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment.”[43]Harassment during employment is prohibited by section 40(1)(a). Direct Discrimination[44]Section 13(1) defines direct discrimination as: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Harassment[45]The definition of harassment appears in section 26 which so far as material reads as follows: “(1) A person(a) (A) harasses another(b) (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B… (2) A also harasses B if – (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in section 1(b). (4) In deciding whether conduct has the effect referred to sub-section (1)(b), each of the following must be taken into account - (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are …race…sex”.[46]Section 9 provides that race, including nationality, is a protected characteristic. Section 11 similarly provides that sex is also a protected characteristic. Victimisation[47]Section 27 provides that a person victimises another if they subject that other person to a detriment because they have done a protected act.[48]Section 27(2) defines a protected as: “(a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act” Code of Practice on Employment 2015[49]The Code of Practice on Employment issued by the Equality and Human Rights Commission in 2015 provides a detailed explanation of the legislation. The Tribunal must take into account any part of the Code that is relevant to the issues in this case.[50]In particular the Tribunal has considered:(a) paragraphs 7.7 – 7.8 to decide what is unwanted conduct for the purposes of the harassment complaints;(b) paragraphs 7.9 – 7.11 to decide whether acts of harassment are related to the claimant’s race and sex;(c) paragraph 7.12 - 7.13 to decide if there was conduct of a sexual nature. (c) paragraphs 7.16 – 7.19 to decide whether acts of harassment had the necessary purpose or effect. Burden of Proof[51]The burden of proof provision appears in section 136 and provides as follows: “(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But sub-section (2) does not apply if A shows that A did not contravene the provision”.[52]In Hewage v Grampian Health Board [2012] ICR 1054 the Supreme Court approved guidance given by the Court of Appeal in Igen Limited v Wong [2005] ICR 931, as refined in Madarassy v Nomura International PLC [2007] ICR 867 where Mummery LJ held that “could conclude”, in the context of the burden of proof provisions, meant that a reasonable Tribunal could properly conclude from all the evidence before it, including the evidence adduced by the complainant in support of the allegations, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.[53]Importantly, at paragraph 56, Mummery LJ held that the bare facts of a difference in status and a difference in treatment are not without more sufficient to amount to a prima facie case of unlawful discrimination. However, whether the burden of proof has shifted is in general terms to be assessed once all the evidence from both parties has been considered and evaluated. In some cases, however, the Tribunal may be able to make a positive finding about the reason why a particular action is taken which enables the Tribunal to dispense with formally considering the two stages. Comparators[54]For the purposes of the comparison required between cases in the direct discrimination claim, section 23 of the Equality Act 2010 provides that “there must be no material difference between the circumstances relating to each case.” Detriment because of protected disclosures[55]Section 43A of the Employment Rights Act 1996 defines a protected disclosure as: “a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[56]Section 43B defines a qualifying disclosure as “any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following – …. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, ……. that the health or safety of any individual has been, is being or is likely to be endangered.”[57]The worker need only have a reasonable belief that the information tends to show the matter required by Section 43B(1) and that the disclosure is made in the public interest. A subjective belief may be objectively reasonable even if it is wrong, or formed for the wrong reasons. In Chesterton Global Ltd and anor v Nurmohamed [2017[ IRLR 837 the Court of Appeal approved a suggestion from counsel as to the factors normally relevant to the question of whether there was a reasonable belief that the disclosure was made in the public interest.[58]In Chesterton Underhill LJ addressed the question of the motivation for the disclosure in paragraph 30, saying that: “… while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at paragraph 17 above, the new ss.49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker's motivation - the phrase 'in the belief' is not the same as 'motivated by the belief'; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it."[59]Sections 43C – 43G address the identity of the person to whom the disclosure was made. In this case it was accepted that the alleged disclosures were made to the employer (section 43C).[60]Section 47B states: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[61]The right to go to a Tribunal appears in section 48 and is subject to section 48(2), which says this: “On such a complaint it is for the employer to show the ground on which any act or deliberate failure to act was done”.[62]In Fecitt and ors v NHS Manchester (Public Concern at Work intervening) 2012 ICR 372, CA, the Court of Appeal determined that a Tribunal can only conclude that a detriment was because of a protected disclosure if it is proven that the protected disclosure materially influenced the detriment.[63]In Shinwari v Vue Entertainment Ltd EAT 0394/14, the Employment Appeal Tribunal concluded that a Tribunal can conclude that although an employer’s conduct is related to a protected disclosure, it is separable from the protected disclosure and therefore not caused by the protected disclosure. Submissions Claimant’s submissions[64]The claimant submitted that she had no proper induction or support from any of the respondents. The claimant said she reported all the issues that she thought amounted to health and safety concerns.[65]The claimant pointed to inconsistencies between the response to the claim and the respondents’ witness statements.[66]The claimant asked the Tribunal to accept her evidence about how the acts made her feel in the workplace. Respondents’ submissions[67]The respondents denied that many of the comments were related to the claimant’s nationality or sex or less favourable treatment.[68]The respondents maintained that they did everything possible to protect the claimant once she had raised her concerns.[69]The respondents contended that the claimant did not have a reasonable belief in the health and safety concerns that she raised and the detriments complained of were not caused by the raising of such concerns.[70]The respondents accepted that the comments were made on 15 March 2023 but that the claimant didn’t take issue at the time. Discussions and Conclusions Was the claimant subjected to harassment related to sex or race?[71]On 12 March 2023 the claimant sent an audio file to the second respondent complaining about the volunteer’s comments and the second respondent’s “bitch I’m lying” GIF.[72]On 15 March 2023 the claimant recorded a conversation between two vaccinators of which she was not part. In that conversation there was a discussion about female members of staff. The Tribunal has determined that on the balance of probabilities those in that conversation knew the claimant was in the other room and could hear what they were saying. As a result, the Tribunal has also determined that on the balance of probabilities they said, “don’t say that in front of Jangovivoo”.[73]The Tribunal accepted the evidence of the claimant on this matter. The respondent did not submit any other members of the conversation as witnesses to contradict what the claimant said, albeit the respondent denied that it was said.[74]The Tribunal has determined that the comment was related to sex because, the vaccinators who were male, knew that a woman was listening to the derogatory comments they were making about other women and made a similar derogatory comment about the claimant with reference to the second respondent’s dog. The Tribunal has determined that the vaccinators were aware that the claimant and the second respondent were friendly.[75]The conduct was unwanted by the claimant and had the purpose of creating a hostile environment for the claimant because it was clear that the vaccinators knew she was listening.[76]As a result, the Tribunal has determined that the claimant was subject to harassment related to her sex.[77]The Tribunal has determined that the claimant has not proven facts from which it could conclude that this comment was related to the claimant’s nationality. The claimant was clear in evidence that this comment was made because she was a woman listening to derogatory comments about other women.[78]The claimant complained that on 17 March 2023 the second respondent said “I hate a lot of older British people and some younger and how they are inherently racist and naïve to what they’re saying” which amounted to harassment related to the claimant’s nationality.[79]In the response to the claim, the respondents admitted that this comment was made by the second respondent. The second respondent also sent the claimant a message in which he made reference to making this comment. In addition, during live evidence, the second respondent also admitted that he had made this comment.[80]The Equality and Human Rights Commission’s Code of Practice on Employment (2015) defines “unwanted” conduct as unwelcome or uninvited. This comment was made after the “Putin” comments, the “Bitch” GIF and the “JangoVivoo” comment. As a result, the Tribunal has determined that it was unwanted following the other comments that the claimant had experienced.[81]The Tribunal has determined that the claimant has not proven facts from which it could conclude that this comment was related to the claimant’s sex. The claimant was clear in her evidence that she considered this comment was related to her nationality.[82]The Tribunal agrees and has determined that the comment was related to the claimant’s nationality. The second respondent made the comment after the claimant had experienced behaviour relating to her nationality when managing members of the public in the vaccination queue.[83]However, the Tribunal has determined that the second respondent did not say the comment for the purpose of violating the claimant’s dignity or creating a intimidating, hostile, degrading, humiliating or offensive environment. The Tribunal accepts that despite this, because this comment followed the other comments, it had that effect on the claimant.[84]It was the second respondent’s evidence that he was trying to be supportive of a colleague who he considered to be a friend. The Tribunal has determined that the claimant misunderstood what the second respondent was saying because of the previous comments. The claimant’s mindset was that every comment was a negative one against her.[85]The Tribunal has therefore determined that it wasn’t reasonable for the comment to have that effect given the context in which the comment was made. Therefore, the complaint of harassment related to race is unsuccessful.[86]The second respondent admitted that on 12 March 2023 he sent the claimant a GIF that said: “Bitch I am lying”.[87]It is clear from the claimant’s replies to that message that it was an unwanted comment. The claimant has not proven facts that it was related to her nationality. The claimant has proven facts that it was related to her sex. The Tribunal has determined that the second respondent sent this particular GIF to the claimant because she was a woman.[88]During his evidence, the second respondent informed the Tribunal that he was gay and that the word “bitch” was commonly used in this community. The second respondent said it was a joke between friends about work he had not done and had been caught out not doing.[89]The Tribunal has accepted the evidence of the second respondent that the purpose of the GIF was not to violate the claimant’s dignity or create the intimidating, hostile, degrading, humiliating or offensive environment.[90]However, the GIF was sent in a group chat two days after the “Putin” comment. The claimant sent the second respondent a video the same night to show the comment had the effect of violating the claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment.[91]The Tribunal has determined that, given the derogatory nature of the comment, it was reasonable for the GIF to have that effect on the claimant. It was made in a group chat, the claimant was already upset about the “Putin” comment, and it was the claimant’s evidence that even her friend was making abusive comments to her.[92]The Tribunal has therefore concluded that this did amount to harassment related to the claimant’s sex.[93]The respondents admitted that on 25 February 2023 the second respondent sent a GIF to the claimant with the words “drama incoming”.[94]The Tribunal saw evidence of messages between the claimant and the second respondent before the claimant complained about her treatment. In particular on 12 December 2022 the claimant used the word “drama” in a friendly message she sent to the second respondent.[95]The Tribunal has determined that the claimant reported lots of issues that she encountered in the queues at the vaccination centre. The Tribunal acknowledges this state of affairs given the nature of the claimant’s role and the difficult role she performed during the pandemic.[96]The Tribunal also concluded from the claimant’s body language and personality that it witnessed during the hearing, that the claimant’s behaviour could, on occasion, be characterised as dramatic.[97]The Tribunal has determined that the reference to the claimant being dramatic was unwelcome and therefore unwanted, and an inappropriate reaction by the second respondent to the issues that the claimant was raising.[98]However, the Tribunal has also determined that the claimant has not proven facts that the Tribunal could conclude that it was related to the claimant’s nationality or sex. Instead, the Tribunal has concluded it was the second respondent’s perception of the claimant’s personality. Was the claimant subject to direct race and/or sex discrimination? Issue 2.1.3[99]The Tribunal has determined that the comment “don’t say that in front of the Jangovivoo” amounted to harassment related to sex. Therefore, in accordance with Section 212 of the Equality Act 2010, this cannot also be a detriment for the purposes of the direct sex discrimination complaint and the Tribunal has not considered the issue any further.[100]The Tribunal has determined that the claimant has not proven facts from which it could conclude that this comment was less favourable treatment because of the claimant’s nationality. The claimant was clear in evidence that this comment was made because she was a woman listening to derogatory comments about other women Issue 2.1.4[101]The Tribunal has determined that the second respondent was not treating the claimant less favourably when he said: “I hate a lot of older British people and some younger and how they are inherently racist and naive to what they are saying”, because the comment was made in support of the claimant given the situation she found herself in on a daily basis dealing with the vaccination queue.[102]The Tribunal has determined that the second respondent would also have been supportive towards a male British security guard subjected to personal comments by members of the public. Issue 2.1.9[103]The Tribunal has determined that the comment made on 12 March 2023 of “Bitch I am lying” cannot be direct discrimination because the Tribunal has already determined that it amounts to harassment related to sex in accordance with section 212.[104]The claimant has not proven facts that this comment was less favourable treatment because of the claimant’s nationality. The claimant has proven facts that it was harassment related to her sex. The Tribunal has determined that the second respondent sent this particular GIF to the claimant because she was a woman and would have sent the same comment to a British woman. Issue 2.1.0[105]The Tribunal has determined that the GIF with the words “drama incoming” was not less favourable treatment on the grounds of the claimant’s nationality or sex. The word “drama” was used between the claimant and the second respondent in friendly banter. The Tribunal has determined that the second respondent had a particular perception of the claimant’s personality. The Tribunal has also determined that the second respondent would form the same view of a male British security guard with whom he struck up a friendship and use the GIF in the same way. Did the respondents subject the claimant to detriments because of protected acts? Issues 3.1(a) and 3.2[106]The claimant contended that she performed a protected act on 7 February 2023 when she complained to the second respondent that a vaccinator refused to vaccinate a woman over the age of 65.[107]It was the second respondent’s evidence that he didn’t remember this incident. The claimant has said in evidence that she was concerned about patient safety. The Tribunal has determined that the claimant made no reference to this being a discriminatory act but rather was concerned that an eligible member of the public had been denied a vaccination. The Tribunal has therefore determined that this was not a protected act.[108]As a result of this determination, the claimant did not suffer detriments because she made this complaint. Issues 3.1(c) and (d) and 3.4[109]The Tribunal has determined that the complaints made by the claimant on 12 March 2023 and 20 March 2023 are protected acts. The claimant made the same complaint of discrimination to the second and third respondent about the “Putin” comment and the “bitch” comment. Issue 3.4.1[110]The claimant complains that she was subsequently subjected to a detriment by the third respondent who failed to take reasonable steps to prevent further discrimination by warning the volunteer.[111]The Tribunal accepts that when the third respondent found out about the issue with the volunteer he spoke to the second respondent to ensure the volunteer was spoken to.[112]Therefore, the Tribunal has determined that as soon as the third respondent knew about the issue, he took all reasonable steps to prevent further discrimination by speaking to the claimant’s line manager and the person responsible for managing the vaccination site. Issue 3.4.2[113]The claimant also complained that the third respondent failed to take the claimant’s reports of discrimination seriously. However, the Tribunal has determined that the third respondent did take them seriously by ensuring the volunteer was spoken to and by speaking to the second respondent who was responsible for managing the vaccination site. The third respondent also spoke to the claimant. The Tribunal accepts the evidence of the third respondent that they had a positive conversation from which the claimant was satisfied with the third respondent’s actions. Issue 3.4.3[114]Finally, the claimant complains that the third respondent failed to reasonably protect her from continuing discrimination.[115]The volunteer came back into the vaccination centre on 24 March 2023 after the claimant had complained to the third respondent. It was the third respondent’s evidence that he thought he had done enough to protect the claimant. The third respondent said he had asked the volunteer not to come back until after the end of the claimant’s fixed term contract.[116]The volunteer was also a customer of the pharmacy and a member of the public. There was no contractual relationship between the volunteer and the third respondent. It was the volunteer’s choice to return to the site on 24 March 2023 despite the warnings made on behalf of the first respondent. Therefore, the Tribunal has determined that the third respondent did not fail to reasonably protect the claimant from continuing discrimination – he did what he could in the context of the relationship.[117]The claim of victimisation is unsuccessful and is dismissed. Was the claimant subjected to detriments because she made protected disclosures?[118]In case management, Employment Judge Ross determined that if the disclosures made by the claimant were qualifying, they would be protected because they were made to the employer.[119]The claimant said that she disclosed information that tended to show a breach of a legal obligation and/or health and safety. Issue 4.1[120]On 7 November 2022 the claimant told the second and third respondents that a vaccinator had refused to vaccinate. The Tribunal has determined that this was not a qualifying disclosure because the claimant did not have a reasonable belief that this amounted to a breach of health and safety. The Tribunal has determined that whilst the claimant believed this led to a breach of health and safety that was in the public interest, she did not have enough information to know whether the vaccinator’s decision not to vaccinate particular people was the right decision and therefore could not have had a reasonable belief that there had been a breach of health and safety. The vaccinator may have had a valid reason for not vaccinating that particular person. Issue 4.2[121]The claimant said on 28 November 2022, she reported to the second respondent that a vaccinator was refusing to vaccinate individuals. The Tribunal has similarly determined that the claimant did not have a reasonable belief that this tended to show that there was a breach of health and safety. The Tribunal has determined that whilst the claimant believed this led to a breach of health and safety that was in the public interest, she did not have enough information to know whether the vaccinator’s decision not to vaccinate particular people was the right decision and therefore could not have had a reasonable belief that there had been a breach of health and safety. Therefore, this was not a qualifying disclosure. Issue 4.3[122]The claimant said on 7 February 2023 she reported to the second respondent that a vaccinator had refused to vaccinate a woman over 65. The Tribunal has determined that whilst the claimant believed this led to a breach of health and safety that was in the public interest, she did not have enough information to know whether the vaccinator’s decision not to vaccinate particular people was the right decision and therefore could not have had a reasonable belief that there had been a breach of health and safety. Despite the woman meeting the age criteria, the vaccinator may have had a valid reason for refusing the vaccination. Therefore, this was not a qualifying disclosure. Issue 4.4[123]The Tribunal has made the same determination about the claimant’s report to the second respondent on 17 February 2023 about the administration of a vaccine to a patient with Alopecia. The Tribunal has determined that whilst the claimant believed this led to a breach of health and safety that was in the public interest, she did not have enough information to know whether the vaccinator’s decision not to vaccinate particular people was the right decision and therefore could not have had a reasonable belief that there had been a breach of health and safety. The claimant was not trained in vaccinations and could not have had a reasonable belief as to whether it was safe to give that person the vaccination. Issues 4.5 – 4.8[124]On or around 25 February 2023 the claimant reported concerns raised by the Cheshire Fire Brigade and repeated those concerns on 12 March 2023. The Tribunal has determined that the reports of these concerns were qualifying disclosures because it was information that the claimant had sent to the respondents and she had a reasonable belief that without it there was a risk to health and safety and it was in the public interest that the respondents act on this information. Issue 4.9[125]The claimant complains that as a result of making the qualifying and protected disclosures about the concerns of the Cheshire Fire Brigade she was subjected to detriments.[126]At issue 4.9.1 the claimant complained that the second respondent sent her the “Bitch I’m lying” GIF because she made the protected disclosure. There is no doubt that the second respondent responded to the claimant’s disclosure with that GIF. The Tribunal has determined that the sending of the GIF was not materially influenced by the content of the disclosure. The Tribunal has concluded that the GIF was a continuation of the way that the claimant and the second respondent spoke to each other, and in fact, was related to the claimant’s sex.[127]At issue 4.9.2 the claimant complained that the second respondent and the third respondent then failed to protect her from ongoing discrimination as a result of the protected disclosure. The Tribunal has already determined that the third respondent did not fail to protect the claimant from ongoing discrimination.[128]The Tribunal also determined that the second respondent did not fail to protect the claimant from ongoing discrimination. The second respondent responded appropriately to the claimant’s complaints by assuring her that the volunteer had been told not to attend the vaccination site until after the end of the claimant’s contract. The second respondent asked Sally Turnbull as the manager of the volunteers to convey this message to the volunteer.[129]The second respondent also told the claimant that she did not have attend work for the duration of her contract in order that she didn’t have to come into contact with the volunteer who was also a customer of the pharmacy.[130]At issue 4.9.3 the claimant complained that the second respondent and the third respondent failed to deal with her complaints of discrimination adequately. However, the Tribunal has already determined that the second respondent and the third respondent did deal with the claimant’s complaints of discrimination.[131]As a result, the complaint of detriments because of a protected disclosure is unsuccessful and is dismissed. Was the claimant sexually harassed at work?[132]The Tribunal has determined that the allegations made at paragraph 5.1 of the list of issues were all things said in the presence of the claimant. The Tribunal has noted that the Equality and Human Rights Commission code of conduct states that conduct of a sexual nature can include verbal conduct and sexual jokes.[133]At paragraph 71 of her witness statement, the claimant said these comments were made when the male vaccinators were looking at social media pictures of female colleagues. The Tribunal has therefore determined that they were comments of a sexual nature. The men were friends and were having a personal conversation.[134]The comments heard by the claimant were unwanted and unwelcome and whilst the conversation was between friends and the purpose of the conversation was not to create or violate the claimant’s dignity or create an intimidating, hostile environment for her, it had that effect which was reasonable.[135]Therefore, the Tribunal has concluded that those comments amount to sexual harassment for the claimant in the workplace and that claim is successful. Which respondent(s) is/are liable for any unlawful discrimination?[136]For those complaints that are successful, the vaccinators were agents of the principal first respondent and therefore the principal first respondent is vicariously liable for their acts on 15 March 2023.[137]Similarly, the second respondent was either an employee/agent of the first respondent, and the first respondent will be liable for the message sent on 12 March 2023.
Remedy
[138]There will be a remedy hearing on 12 March 2026 and 13 March 2026 at the Liverpool Employment Tribunal, Civil and Family Court, 35 Vernon Street, Liverpool, L2 2AY. Approved by: