Ms B Gurol v Sports Direct.com Retail Ltd: 3200394/2023

EMPLOYMENT TRIBUNALS

Case No 3200394/2023

Between

Ms B GurolClaimant

Sports Direct.com Retail LtdRespondent

Before

Employment Judge Hook

Members

Ms M Daniels

Mr P Lush

In person for claimant

Ms J Twomey (instructed by counsel) for respondent

Date 30 September 2024

JUDGMENT

[1]The claimant’s claim for harassment is not well founded and is dismissed.

[2]The claimant’s claim for direct discrimination because of sex is not well founded and is dismissed. JUDGMENT having been sent to the parties on 7 October 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The parties have had to wait longer than they should have to be sent these reasons. That is due to pressure on judicial resources. The Tribunal apologies to the parties for this delay.

[2]In this case the claimant brought claims of harassment and direct discrimination based on sex.

[3]The Tribunal sat on 7-9 August 2024 and deliberated on 27 September 2024.

[4]The claimant, having brought her case, carries the burden of proof. She must prove her case. The relevant standard of proof is the balance of probabilities. Where facts are disputed between the parties, we have considered what it more likely than not to have happened and have made findings of fact accordingly.

[5]We have considered all of the evidence that we heard in the three-day hearing. That includes the witnesses we heard from: the claimant and the witnesses called by the respondent, namely Mr Uddin, Ms Sultana and Ms Suggett. We also considered documents in the bundle we were taken to and video evidence we were shown.

[6]In the course of our deliberations, we have rewatched video that we were shown in the hearing. The Tribunal has also been sent some video in addition to that, which we have not considered as we must confine ourselves to the evidence the parties chose to put before us before closing their cases.

[7]We have considered submissions from the parties. Both parties made submissions at the end of the 9 August. The claimant asked for permission to supplement these with further submission in writing. We granted that permission and we also received a short note from the respondent commenting on those submissions. We took account of all submissions made by both parties.

[8]We will address the case with reference to the agreed list of issues. We have resolved enough issues for us to determine whether each claim succeeds or fails. For completeness we have also considered some other issues but not every issue. Equality Act 2010

[9]The claimant’s claims refer to her sex. Sex is a protected characteristic by virtue of Equality 2010 section 4.

[10]Section 11 of the same Act provides: '“In relation to the protected characteristic of sex –(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; and

(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.”'

[11]The claimant’s sex is female. She is a woman.

[12]Direct discrimination is defined by section 13 of the Equality Act 2010 as being where a person treats another person less favourably than other people because of a protected characteristic.

[13]Harassment is defined by s. 26 of the Equality Act 2010 as being where a person engages in unwanted conduct related to a protected characteristic and that conduct has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person.

[14]A central part of this case was an assertion by the claimant that she had been treated unfairly in relation to the effects of her menstruation while she was at work.

[15]The respondent submitted that discrimination based on menstruation could amount to discrimination based on sex. The argument put forward by the respondent is that discrimination on account of menstruation would not be discrimination based on sex because not all women and girls menstruate and if Parliament had intended it to be considered as discrimination, then Parliament might have enacted menstruation as a separate protected characteristic as Parliament, in the Equality Act 2010, did with pregnancy.

[16]However, prior to the Equality Act pregnancy discrimination was sometimes regarded as a form of sex discrimination and cases were successfully brought to the Tribunal alleging sex discrimination based on pregnancy. It was held to be an inherently female related matter. It might be argued that Parliament would have intended menstruation, due to its inherent association with people of female rather than male sex, to be considered as a part of sex and protected accordingly.

[17]In addition, the editor of the IDS Employment Law Handbooks considers that “it remains open to a woman to argue that any treatment meted out to her because of her pregnancy or maternity amounted to less favourable treatment because of sex” (see IDS vol 5, ch 9.6 and the discussion thereunder).

[18]There are arguments to be made both ways. We do not make a finding on this legal question. It will become obvious as we set out our other findings why we can determine both claims without deciding this particular question of law. The claimant’s allegations

[19]The claimant’s claims are based on certain allegations that she makes. In relation to each of these we have considered that evidence and determined whether, on the balance of probabilities, the allegation is well-founded or not.

[20]Her first allegation is that: on 13 February 2022, 20 March 2022, 23 April 2022 and 24 September 2022 the Claimant sought and was denied permission to use toilet facilities by her manager Somir Uddin.

[21]The claimant worked at the respondent’s shop in the Westfield shopping mall at Stratford in east London as a shop assistant. Mr Uddin was part of the management team of the store.

[22]The claimant gave evidence (in her statement and confirmed orally when was cross examined) that there was a policy in the store against women using the toilet and she was not able to use it on the dates mentioned above.

[23]We saw in the evidence that on 13/2/22 she sent a text (p184 of the bundle) to Mr Uddin complaining that had spoken to her badly, although the text contains no reference to using the toilet specifically.

[24]There was no other witness evidence to support the claimant’s case with regards to this. No other witness gave evidence that women generally, or the claimant personally were prevented from using the toilet.

[25]There were a number of points that we considered supported the respondent’s case that there was nom policy against women using the toilet and no refusal of requests by the claimant to use the toilet.

[26]We considered it is generally unlikely that a large company in 2024 would have such as blatantly sexist policy as to stop women using the toilet. Improbable allegations may be true but will require a good quality of evidence to prove on the balance of probabilities. Such a policy would be truly shocking and would likely attract negative public attention especially in the case of a large national retail chain, which the respondent is.

[27]There was also no evidence put before us that the claimant ever made a complaint about this to the company. No witness corroborates her account. The text of 13/2/22 to Mr Uddin made no reference to going to the toilet, which it might reasonable be expected to if that refusal of toilet access had happened.

[28]Mr Uddin gave evidence. He said people do not need to ask permission to use the toilet. They must just say they are going and men and women are treated equally. He said he has never stopped anyone going to the toilet.

[29]Ms Lisa Suggett is a more senior manager and has qualifications in HR. She gave evidence that there no is no restriction on women using the toilet and said that as a woman she would not tolerate such a policy being imposed on any woman.

[30]The claimant’s account appeared to change during her evidence. At one stage she said it was a blanket policy at all the premises of the respondent but said at another point it was only applied by Mr Uddin and also only to junior female staff.

[31]In relation to 24/9/22 specifically, the timesheet (bundle p129) records the claimant as only at work for 30 mins that day. This suggests her account in evidence of being at work for longer and being denied a chance to use the toilet is wrong.

[32]The balance of evidence clear. We find that on balance of probabilities the claimant was not denied permission to use the toilet on any of these four occasions.

[33]Her second allegation is that on 11 December 2022 the Claimant asked permission to leave work in order to buy sanitary products and/or attend to the fact that she was bleeding and Sharmin Sultana refused her request, saying she did not care that the Claimant was soaked through her trousers.

[34]Ms Sultana was another member of the management team at the store.

[35]The claimant’s account was that she was working 11/12/22 and her period came on early. She said menstrual products are not provided at work. She said she was soaked through her clothes. She tried to ask Ms Sultana for permission to leave to get sanitary products and new clothes. She said Ms Sultana refused to speak to her about it and told her to go back to work. She said she approached Ms Sultana a second time and was told she could not leave. She said she then approached her a third time, pleaded to be allowed to go and Ms Sultana said she could.

[36]She went to Boots (a chemist) for sanitary products. She returned and carried on working in blood stained clothes. Mr Uddin then accused her of going to Pret (a café) for a hot chocolate which she had not done. She said that the only time she had left the store to get period products.

[37]The timesheet (bundle p132) records her clocking out at 1445 and returning at 1514. The fact she left was not in dispute.

[38]Ms Sultana’s account was different. She agreed that she was working 11/12/22. She recalled the claimant approaching her about 3.30pm stating that she was on her period and had bled through her clothes. Ms Sultana was, she said in evidence, dealing with a customer at that moment so asked the claimant to bear with her so they could speak in private.

[39]After she finished with the customer, she was told that the claimant had clocked out of the store without Ms Sultana’s authority. She observed that the claimant regularly, on Sundays, said she needed to go to get sanitary products and Ms Sultana had let her go for this purpose on occasions.

[40]She saw the claimant return to the store about 4.30. The claimant told her she had gone to get hot chocolate.

[41]The timesheets (bundle pp128-130) corroborate Ms Sultana’s account that on three other dates the claimant left the shop for 18 to 30 minutes.

[42]Mr Uddin said in his evidence that he also saw her return. He also said that on previous occasions the claimant had asked for and been given permission to leave to buy sanitary products. He noted these on the timesheet as they were regular occurrences.

[43]Ms Suggett gave evidence that as Ms Sultana’s superior she knows Ms Sultana to be a kind person who would not, she believes, stop members of staff going to buy sanitary products.

[44]The Tribunal is fundamentally left with contradictory evidence between the claimant and Ms Sultana as to whether Ms Sultana refused her permission to go and buy sanitary products and said to the claimant that she did not care that the claimant was uncomfortable because her period has arrived.

[45]There are no direct independent eyewitnesses to this and no recording of their exchange. Mr Uddin’s evidence supports Ms Sultana’s evidence of the claimant’s propensity to leave the story and the timesheets also support this. Ms Suggett’s evidence supports Ms Sultana in that it identifies Ms Sultana as a kind person who would not do something so unkind as obstruct a person suffering discomfort related to their period obtaining help.

[46]The claimant brings the case and has the burden of proof to satisfy the Tribunal (on the balance of probabilities) that it happened. Taking all the evidence together, the Tribunal considers that the claimant’s case is not proved in relation to this allegation.

[47]The third allegation was described on the list of issues as being that: on 11 December 2022 the Claimant was dismissed by Somir Uddin who in a raised voice in front of customers said he was doing so “because you’re on your period you fucking liar “and dismissed her. He added that he “did not give a fuck if you are on a period” and that “you have taken the piss and you get what you give”.

[48]The claimant’s account in her statement was:a. She was working at the till area with another young female staff member who did not give evidence and who we refer to in these reasons as

b. B. These reasons are a public document. B may feel embarrassed by some of the reference to her in evidence given by others, which she has not had a chance to respond to as she is neither a party nor a witness in the case. There is no benefit to the interests of justice in referring to B by name in these reasons and so out of fairness to B, we do not do so. b. Mr Uddin charged towards the claimant angrily and dismissed her on the spot.

c. He told her to go to the front of the store.

d. She got her belongings then waited at the front.

e. Mr Uddin then screamed at her the words alleged. Everyone could hear. It was directed at the claimant.

f. He dismissed her.

g. She then left.

[49]In cross examination of the claimant:a. She denied that Mr Uddin had seen her go to Pret or that she returned with a hot chocolate.

b. Denied she had shouted at B at all.

c. She confirmed that she thought her employment had been terminated there and then.

d. Said that Mr Uddin said “you are dismissed don’t ever come back”.

[50]The claimant gave a similar account when asked by Lisa Suggest by text on 17/12/22 what had happened (see bundle pages 146-147).

[51]Mr Uddin said in a text later (about 30 mins after the incident) “I dismissed you for being rude” (p164).

[52]Mr Uddin’s account in his statement was:a. He saw the claimant return at about 4.28 and she returned to the till area and served customers.

b. He had seen her through the window in Pret before she returned to the store.

c. He heard the claimant screaming at another member of staff, B, these words: i. I’m old enough to be your mother. ii. Do you know who I am? iii. I’ll knock you out.

d. He saw B in tears. He then spoke to the claimant and asked her to clock out and go home.

e. He said the claimant was “very aggressive”.

f. The claimant went to the back of the store for her belongings and then to the front.

g. He went to meet her there.

h. The claimant started shouting and gesticulating.

i. She called him a “baldy paki” and he had to “watch his back”.

j. He told her “just leave”.

k. He phoned Ms Suggett to tell her what happened.

l. Ms Suggett said she would terminate the claimant’s contract.

[53]Mr Uddin said in cross examination: i. that he used “dismissed” in the sense of sending her home, not in the sense of ending her employment. ii. He pointed at the door to tell her to leave. iii. He is assistant store manager and has power to dismiss someone” if they are a zero hours worker (as the claimant was).

[54]Ms Sultana’s account in her statement was:a. She was with Mr Uddin when another member of staff reported B crying because the claimant shouted at her and had “shot a box of pins across the counter”. She did not see this happen herself.

b. Later, she heard the claimant shouting at the front of the store.

c. She heard the words “you baldy paki” said by the claimant and thought the claimant sounded aggressive.

[55]In cross examination she said she heard no yelling from Mr Uddin.

[56]Lisa Suggett’s account in her statement was that:a. She was not working that day.

b. Mr Uddin contacted her and gave her a report of what happened that was consistent with what he says in his own statement.

c. She followed this up by taking statements from staff present.

d. On 17/12/22 she texted the claimant with a view to getting her account of what happened.

e. She asked the claimant to come and see her. The claimant said she was ill and this meeting did not happen that day or subsequently.

[57]In answer to questions from the Tribunal she said that she: i. Did not consider that the claimant had been dismissed from employment on 11/12/22 and planned to dismiss her when they met. ii. She would not expect Mr Uddin to exercise his power to sack someone in her absence. iii. The claimant was on a final warning on 11/12/22 which had been communicated to her orally.

[58]There was some inconsistency in the account of the claimant. In her Further Particulars she gave a different description of Mr Uddin’s words. In that document she alleged that he said “grow up Behice, you stupid little girl, you’re 31 years of age, stop acting like a baby”. (para 24 of bundle page 44). In her oral evidence before the Tribunal she said that Mr Uddin told her to leave because she was aggressive and had been rude to B.

[59]In her amended grounds of complaint (para 20, bundle page 43) she says Mr Uddin said she was being sent home “because you are on your fucking period” but in her text message to Ms Suggett she claimed Mr Uddin said it was because she took a 30 min break.

[60]The Tribunal saw two CCTV clips during the 3 day hearing.

[61]The first clip shows B serving a customer. The claimant then appears and after a time raises her hand to her shoulder. She appears to hold a security tag or pin and walk towards B. The claimant could not say why she did this. She said she might have been showing it to her. We saw that there were various boxes of pins and similar items on the counter.

[62]The Tribunal is not prepared to conclude that the claimant was necessarily threatening B with it. There may have been a good reason for holding the item up. The respondent did not allege an assault or touching took place. We saw that the claimant moved a box towards B at one point but did not, in our view, appear to “throw” or “shot” it at her.

[63]There is no audio on clip so it does not assist with whether there was shouting.

[64]The clip does not show Mr Uddin charging up to the claimant as suggested by her. The claimant said this must have happened just after the videoed period of time.

[65]The second video clip shows the claimant by the store’s front door. The claimant is gesticulating and is quite animated. There is no audio. The claimant then leaves after a while. Mr Uddin can be seen. He is generally stood still with his hands on his hips.

[66]The respondent suggested the claimant’s mouth and mask can be seen moving. The Tribunal could not see this. But we think it likely that both parties spoke to some extent. The video does not show Mr Uddin being aggressive.

[67]We must consider, on the balance of probabilities, did Mr Uddin say: a) “because you’re on your period you fucking liar, b) he “did not give a fuck if you are on a period”, c) that “you have taken the piss and you get what you give”, and, d) did he dismiss her from employment

[68]The Tribunal is faced with conflicting accounts. The claimant gives an account, but it is correct to say, as the respondent submitted, that there are some inconsistencies in her account (identified above) particularly about what words were used.

[69]The claimant’s evidence is not supported by any other witness. No other witness heard the words she says were used (a, b, c above). On the other hand, Mr Uddin denies using any of those words. Ms Sultana was in earshot most or all of the time and did not hear those words.

[70]Mr Uddin and Ms Sultana both say that, in fact, the claimant used racist abuse towards Mr Uddin. Both of them say they were told of another staff member in tears after a confrontation with the claimant and Mr Uddin says he saw her (B).

[71]Taking all of the evidence together, we do not consider that it is proved on the balance of probabilities that Mr Uddin used the words alleged.

[72]We have also considered whether he dismissed her from employment there and then on the shop floor.

[73]He gave evidence that he did not dismiss her from employment there and then, although he used the word “dismissed” in a text later that evening. He also said “I have removed your shifts until I have spoken to [Ms Suggett]”. The words emphasised by the Tribunal in bold suggest matters were not final and were not intended to be understood as final by the claimant.

[74]The claimant was paid her notice up to 25/1/23. In her ET1, the claimant herself said she was employed until 25/1/23. The ET1 does refer to Ms Sultana “dismissing” her twice clearly in the sense of not engaging with her and does say Mr Uddin “dismissed me in from of horrified staff and customers.”

[75]In her further particulars of claim (starting at bundle p38) she does not refer to being dismissed from employment on 11/12/22. In fact, she applied to add a claim that she was victimised by being dismissed after contacting ACAS (on 4/1/23). This is strong evidence that the claimant did not consider herself to have been dismissed from employment on 11/12/22.

[76]The claimant, when cross examining Mr Uddin, seemed to draw a distinction between being dismissed from employment (she says on 11/12/22) and her contract of employment being terminated (which she says was 25/1/23) although the two are in fact the same in law.

[77]We find that Mr Uddin certainly sent the claimant home on 11/12/22. In that sense he dismissed her from being present in the shop. His words that he had cancelled her shifts until speaking to Ms Suggett would certainly suggest to the claimant that matters were not yet closed.

[78]There is a letter to the claimant dated 25/1/23 “dismissing her with immediate effect” on the grounds that she had not worked any shifts for a certain period.

[79]The Tribunal finds the claimant was not dismissed from employment on 11/12/22 but was dismissed from employment on 25/1/23 and, on the balance of probabilities, the words she attributes to Mr Uddin were not said by him.

[80]The final allegation made by the claimant is: that in the subsequent text message exchange also on 11 December 2022 with the Claimant in which she had accused him of victimising her whilst she was on her period, Somir Uddin said “you get what you give, you disrespect me, I will give the same back”.

[81]Screenshots of texts have been produced to us. These are at pages 163- 165 in the bundle. These were produced by the claimant. Their veracity was not challenged by the respondent. We can see that Mr Uddin did use these words (see the first blue coloured message on p163). Conclusion on the claimant’s central factual allegations

[82]It should be apparent from the foregoing paragraphs that we do not find the first three allegations of the claimant to be proved on the balance of probabilities.

[83]We do find the fourth allegation is proved that the above text message was sent, which was not disputed by the respondent. Consideration of the further issues in the claims

[84]Having found that the latter allegation is proved (that the text message was sent) we must now consider the other issues relevant to whether the claims of harassment and direct discrimination are made out. Harassment

[85]In her harassment claim, the claimant must establish that the sending of the text message was unwanted conduct.

[86]Unwanted is a common word. The Employment Appeal Tribunal has held it to mean the same as “unwelcome” or “uninvited”. A claimant whose own conduct invites or provokes the conduct complained of will not be able to say that conduct is unwanted. To determine whether conduct is unwanted, one must have an appropriate regard to the circumstances of the conduct.

[87]The text from Mr Uddin contained the words “you get what you give, you disrespect me, I will give the same back”.

[88]This was an immediate answer to an accusatory text from the claimant to Mr Uddin in which she complained that she felt treated unfairly. She accused him of shouting at her, victimising her and breaching her human rights in relation to her periods and not allowing her to go to the toilet.

[89]Mr Uddin’s text in reply plainly rejected her complaint and said she had initiated wrongdoing and was being treated in kind. It is arguable that claimant’s message (being accusatory) implicitly invited a response. Mr Uddin’s reply makes a counter accusation of bad conduct by the claimant and justifies his actions as “giving the same back”.

[90]Mr Uddin’s reply was arguably not an example of best practice in management but in his defence he was answering an accusatory text shortly after (so we have found) he was probably the victim of racial abuse (the “baldy paki” remark by the claimant) in his workplace at the end of a busy day.

[91]The Tribunal finds that the message from Mr Uddin was effectively invited by the preceding message from the claimant taken together with the events in the store shortly before. It was not “unwanted conduct” in that sense.

[92]The Tribunal’s finding that it was not unwanted conduct is the end of the harassment claim but for completeness, to help the parties understand the view we took of the evidence, we will address some of the other issues. Conduct relating to sex

[93]Had we found the text message was in fact unwanted conducted we would have to consider whether that conduct relate to sex?

[94]Mr Uddin’s evidence was that he was referring to the “disrespect” which the claimant had shown him in subjecting him to racial abuse and raising her voice at him. In the message exchange he appears to admit raising his own voice in response. In our view, that is the natural meaning of the words he has used and we accept his evidence on this point.

[95]It was a reply to the claimant’s message (complaining she was being bullied and victimised including in relation to her periods). The Tribunal has considered it arguable that reference to periods “relates to sex” and has considered whether that mean that the reply “relates to sex”.

[96]Mr Uddin’s message made no refence to periods. The Tribunal has accepted as likely to be correct that he was referring the racist remark and disrespect to him in general terms.

[97]In the Tribunal’s view, we do not consider that the claimant did or reasonably could have thought that Mr Uddin’s text referred to her sex even if she herself had referred to this when she began the conversation. He took the conversation in a different direction, referring to different matters. Effect and purpose of the conduct

[98]Had the Tribunal found for the claimant on the unwanted conduct point and that the text was related to her sex we would then need to consider, as set out in the list of issues: Was the purpose of the conduct to violate the claimant’s dignity or to creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? If not, Did the conduct have the effect of violate the claimant’s dignity or to creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? And in answering that question the Tribunal will have regard to: The claimant’s perception; and The other circumstances of the case ; and Whether it is reasonable for the conduct to have that effect.

[99]The Tribunal accepts that Mr Uddin was upset by the way he perceived he had been “disrespected” by the claimant, in particular that she subjected him to racial abuse.

[100]We infer from al the circumstance that his text message was an expression of frustration and did not have the purpose, that is to say the intent, or violating her dignity or creating the aforementioned environment for her.

[101]It could not be clearer that by the evening of 11 December 2022 there was a serious breakdown in the working relationship between the claimant the Mr Uddin. They gave, in evidence, very different accounts of the events of 11 December 2022 which we have discussed further above and made findings, on the balance of probabilities.

[102]The Tribunal does not consider this text message violated the claimant’s dignity or created an environment an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

[103]The unpleasant environment which by this point existed had been created by the earlier events of 11 December 2022 including the following, which we find on the balance of probabilities occurred.a. The claimant leaving the store without Ms Sultana’s permission which Mr Uddin became aware of.

b. Reports to Mr Uddin that the claimant had shouted at her colleague B.

c. Mr Uddin’s direction that the claimant leave.

d. The claimant’s racial abuse of Mr Uddin (which is denied by the claimant but which we find on the balance of probabilities did happen).

e. Mr Uddin raising his voice in retaliation (mentioned in his own text message).

f. The claimant’s text to Mr Uddin shortly after, seeking to continue an argument about what had happened. Conclusion on the harassment claim

[104]To summarise, and we hope to help the parties understand the basis of our decision:a. There are four factual allegation, set out in the list of issues.

b. The Tribunal finds the first three of these are not proved on the balance of probabilities.

c. The fourth allegation, the text message, is proved in the sense that the text message was clearly sent.

d. However, we have not found the text message can be described as unwanted conduct.

e. Nor, did the text message, we find, relate to sex.

f. Nor, did the text message have the purpose of effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

[105]For these reasons, the claimant’s claim of harassment is not well founded and is dismissed. Direct discrimination because of sex contrary to Sections 13 and 39 of the Equality Act 2010

[106]The Tribunal’s findings of fact about the central allegations of the claimant, explained further above, apply also to this claim.

[107]The only event relied on as part of the direct discrimination claim that we have found happened is the sending of the text message with the words said “you get what you give, you disrespect me, I will give the same back”. Detriment

[108]As set out in the list of issues we must consider “did each event established by the claimant amount to a detriment (apart from the dismissal) for the purposes of sub-section 39(2)(d)?”

[109]A claimant must show that a reasonable employee would or might take the view that they had been disadvantaged in the circumstances in which they work.

[110]The situation here is that the claimant had initiated a text conversation which continued acrimony that had broken out in the store that day. She had accused Mr Uddin of treating her badly. He had replied in kind to say, in effect, she was the wrongdoer and he was treating in a like manner. All of this occurred at one of the busiest times of year for shops (on a Sunday, less than a fortnight before Christmas) which we infer would make the working day more stressful for all staff.

[111]In some respects it might have been better if the claimant had not sent that text or if Mr Uddin had not replied as he did or not replied at all. Mr Uddin later escalated that matter to Ms Suggett and could have allowed human resources processes to take their course.

[112]But that is easy for the Tribunal to say, removed as we in time from December 2022 and the stressful environment of that shop on that day.

[113]We do not consider that the sending of that text message by itself can be said to amount to “subjecting C to a detriment.” She was not in any real sense disadvantaged in the circumstances of her work by that text message.

[114]In light of the above finding, the claim of direct discrimination fails but again to help the parties understand the view the Tribunal took of the evidence we will address some further issues. Comparator and whether the conduct related to sex.

[115]A fundamental element of discrimination if difference of treatment between different people.

[116]If the text message was, contrary to our finding above, a detriment we would have to consider whether the claimant was treated less favourably by reference to an actual or hypothetical comparator. That essentially means, was she treated less favourably that a man was (or would have been) treated in otherwise similar circumstances.

[117]The claimant has not shown that there was any other person, actual or hypothetical, whom she could be compared to and was treated less favourably than she was.

[118]The next matter, as set out in the list of issues, is “can the claimant prove facts from which, without having any regard to any explanation put forward by the respondent, the Tribunal could infer that the treatment was because of sex? If not, then the claims will fail.”

[119]The Tribunal concludes from all the circumstances that the text in question was sent by Mr Uddin in light of strong frustration he felt as the claimant’s manager in particular due to his belief she had upset another staff member and had then racially abused him as she left the store.

[120]The Tribunal cannot infer that he treated her that way (i.e. he sent her that text) because she is a woman. There is no evidence from which we can infer he would not have texted her had she been a man.

[121]Part of the background to that text message is a dispute over the claimant leaving the store to buy sanitary products as she was on her period. The Tribunal accepts that periods are experienced by many women (most women, at some point in their lives and by some people who identify as trans men) and are usually associated with people of the female sex.

[122]If we had found Mr Uddin had sent that text because the claimant had been on her period or because she had left the store in connection with menstruation then we would need to consider carefully whether we could infer that a male person would have been treated differently.

[123]But as we had set out further above in relation to the harassment claim, we find the evidence leads us to the conclusion that Mr Uddin sent the text because of frustration he felt arising from the matters listed at paragraph 103. Conclusion on direct discrimination

[124]For the reasons set out above the direction discrimination claim is also not well founded. We do not find the central alleged facts to be proved apart from the sending of the text message. We find that cannot properly be described as a “detriment” and cannot be said to indicate less favourable treatment by reference to a comparator or relate to sex.