Miss F Tomiuc v Tesco Stores Ltd and A Diaconu: 3202021/2023

EMPLOYMENT TRIBUNALS

Case No 3202021/2023

Between

Miss F TomiucClaimant

Tesco Stores Ltd and A DiaconuRespondent

Before

Employment Judge R Russell

In person for claimant

Ms L Stratton (instructed by Solicitor) for respondent

Date 29 January 2026

JUDGMENT

[1]The Claimant complains of unfair dismissal. The Claimant has not been dismissed. The Claimant has been employed by the First Respondent for less than two years. She is not entitled to bring such a complaint.

[2]The Claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint of unfair dismissal should not be struck out. Accordingly, the complaint of unfair dismissal is struck out.

[3]The Claimant’s remaining complaints are not affected by this judgment.

[1]The claimant’s claims for harassment related to sex and/or sexual harassment under section 26 Equality Act 2010 are not successful and are dismissed.

[2]The claimant’s claims for direct discrimination because of sex under section

[13]Equality Act 2010 are not successful and are dismissed. JUDGMENT having been given orally and sent to the parties on 18 February Employment Tribunal Procedure Rules 2024. 2026 and reasons having been requested in accordance with Rule 60(4) of the

REASONS

[1]The claimant brought claims for direct sex discrimination and harassment related to sex or alternatively of a sexual nature.

[2]There was a single allegation of harassment. This was as follows: “Around the end of March 2023 Alexandra Diaconu spread rumours that the claimant was sleeping with Miroslav Marko. In particular, Alexandra Diaconu told Meehala Robu, a friend and colleague of the claimant, that the claimant was sleeping with Miroslav Marko”.

[3]The claimant brought four claims of direct discrimination. The claimant said the respondent did as follows: 3.1. Fail to deal with her grievance dated 4 April 2023 in a timely manner when a complaint made by Miroslav Marko to Richard Watts on 1 April 2023 was dealt with straight away. 3.2. Fail to deal with her grievance dated 28 April 2023 in a timely manner when a complaint made by Miroslav Marko to Richard Watts on 1 April 2023 was dealt with straight away. 3.3. Stephen James conducted the investigation into the claimant’s grievance in a manner where the claimant felt that she was not given the opportunity to be heard. 3.4. Carl Butler conducted the grievance hearing in a manner where the claimant felt that she was not given the opportunity to be heard.

[4]The claimant has identified Miroslav Marko as a comparator for her direct discrimination claims. In the list of issues she has not identified whether she relies on him in respect of all 4 claims, or whether it is just the first two where the claimant expressly compares her treatment with that of Mr Marko.

[5]The claimant had previously applied to amend her case to include claims for disability discrimination. The application had been refused and the list of issues remained as set out above. Procedure, documents and evidence heard

[6]A bundle of documents had been prepared. One additional document was provided by the respondent following a request by the claimant. This related to Mr Butler’s leave at certain times. The claimant asked for further documentary evidence relating to this leave to be disclosed. I refused the claimant’s application for additional disclosure as the potential evidence was of minimal relevance and disclosure would be disproportionate.

[7]The claimant had prepared a witness statement and was cross examined. She also called Mihaela Robu as a witness. A witness order had been made in respect of Mrs Rob. A witness statement had also been prepared by Mrs Robu in advance of the hearing. She was then cross examined by the respondent.

[8]The respondent called five witnesses (Alexandra Diaconu, Carl Butler, James Moore, Richard Watts and Stephen James). They had all prepared witness statements and were cross examined.

[9]The claimant had made an application to the Tribunal before this hearing to be able to rely on medical expert evidence. That application remained outstanding at the beginning of the hearing. I clarified with the claimant at the outset that this related to remedy, given that there was no disability discrimination claim and medical evidence would not be required to determine the issues in the direct sex discrimination and harassment claims.

[10]The case was listed for 9 days, including time for the Tribunal reading and deliberations. At the outset I agreed with the parties that liability would be dealt with initially and agreed an approximate timetable for evidence and submissions. Working within this provisional time table would allow judgment to be given orally on day 7 or 8 of the hearing. The remaining time could be used to deal with remedy, or case management on remedy, if required. I informed the claimant I would consider her request to rely on expert evidence at that stage. By then I would also have a better understanding of the issues and evidence that was already available to decide whether additional expert evidence was needed.

[11]The claimant was assisted during the hearing by a Romanian interpreter. For much of the hearing the claimant spoke mostly in English and relied on the interpreter’s assistance for clarification of particular points. Some of the witnesses were also Romanian and required greater assistance from the interpreter. Some of the evidence in the case related to conversations and text messages that were originally in Romanian. The interpreter was also able to assist the Tribunal by explaining some of the nuances that were potentially not clear in the translations provided in the bundle of documents, which had been done using Google translate.

Findings of Fact

[12]The findings of fact I have made which are set out below are based on the issues identified above. I have limited my findings to those factual allegations that underlie the claimant’s various claims and other matters that are direct background and context.

[13]I carefully considered all the evidence provided, both documentary and witness evidence. A lack of reference to any particular document or something that was said by a witness does not mean it was not considered.

[14]There were a number of matters where there was a dispute about what occurred and I have had to reach a decision on what I believe actually occurred. The test I have applied to make my decision is the balance of probabilities. In a discrimination claim the claimant must prove, based on the balance of probabilities, that the conduct she complains of occurred as alleged. If the claimant has not provided evidence, either in the documents or witness evidence that proves a particular factual allegation then she has not discharged the burden of proof. General background

[15]The claimant started working for the respondent on 4 July 2022. She worked in the warehouse as team member.

[16]The site itself is large. I heard from the respondent witnesses that there were around 1000 employees working across different shifts. There were also agency workers at the site.

[17]The claimant is Romanian and many of the other employees in the warehouse are also Romanian. The claimant said that she enjoyed working there because of this. She said she made friends at work and it was a nice environment.

[18]In 2022 the claimant went on a few dates with a colleague, Miroslav Marko. On at least one occasion he also stayed over at her house. On that occasion another colleague, Pavel Slezak, collected Mr Marko from the claimant’s house. The claimant did not want the relationship to develop further and she ended it with Mr Marko.

[19]I make no findings about the precise nature of the relationship between the claimant and Mr Marko. It is not necessary for me to do in order to determine any of the claims the claimant has brought. I simply note that it was not disputed that they had been on a few dates outside work, this was consensual and neither the claimant nor Mr Marko were in relationships with anyone else at time.

[20]By way of general background, I also note that the evidence of the respondent witnesses indicated that relationships between employees was not uncommon at the site where the claimant worked. That is consistent with some of the text messages Ms Robu and Ms Diaconu who referred obliquely to relationships between employees. Conversations in March 2023

[21]At some point in March 2023 two colleagues of the claimant, Mihaela Robu and Alexandra Diaconu, had a conversation at work. The claimant was friends with Mrs Robu but not particularly friendly with Ms Diaconu. This conversation forms the basis of the allegation of harassment that the claimant has brought. It is not disputed that there was such as conversation, but the content of that conversation is disputed.

[22]Before setting out my conclusions on that conversation I have noted several aspects of the evidence that have had an impact on the conclusions I have been able to reach: 22.1. The original conversation between Ms Robu and Ms Diaconu was in Romanian, as were subsequent messages sent between them. The evidence I heard was in English, so involved both women recalling a conversation they had in Romanian (their first language) and describing it in English. Likewise, subsequent texts between the two women have been translated from the original Romanian. Some were potentially translated by Google translate. In his evidence Mr Butler indicated he had used this to translate some messages that were provided in his investigation. I have been mindful that aspects of the conversation may be lost through translation. For example, nuances of what was said or understood by both women may not fully come across in the same way in the English account of events. Equally, some of the potential disputes about exact words used may be less significant than they appear in translation. 22.2. It was unclear from the evidence exactly when the initial conversation took place. In her witness evidence Mrs Robu suggested she spoke with Ms Diaconu once in February 2023 and then again about a week later. She said that she then told the claimant about the conversation about 3 weeks later. In the investigation meeting Ms Diaconu said that the claimant confronted her about 2-3 weeks after the conversation. The claimant confronted Ms Diaconu on 28 March 2023. Both these accounts would indicate that the original conversation probably happened around the first or second week of March and there was then a period of around 2-3 weeks before Mrs Robu had her conversation with the claimant. 22.3. The conversation was a casual discussion while at work. A period of around 3 weeks had already elapsed before any account was provided to a third party. By that point already it is unlikely that either woman would have a completely accurate recollection of the exact words either had said. It is more likely they would just recall more of the gist of the conversation. 22.4. On this I note that people’s memories are often not reliable. Both women may have very genuine but different memories of what they recall about the conversation. A person may mean one thing and it be understood in a different way by the other person. This is particularly the case where words or phrases that are used that have ambiguous meanings. Any differences in recollection may also become more pronounced over time, particularly if the person is repeatedly required to recall and recount what they said or heard. 22.5. The claimant was not a party to the conversation either. The claimant is reliant on what she recalls being told by Mrs Robu on around 25 March 2023. By this point Mrs Robu’s recollection may not have been accurate in any event. The claimant reacted strongly to this incident, but I initially her focus was on Mr Marko and what she believed he may have said about her. She only confronted Ms Diaconu 3 days later. The claimant did not put anything in writing until 4 April 2023. 22.6. Initially in April 2023 an informal investigation was carried out. No notes were taken at the time to record what either woman recollected about the conversation. The formal investigation did not start until several months later. Ms Diaconu was not interviewed until 16 August 2023 and Mrs Robu was not interviewed until 1 September 2023. Therefore, no written account was made of the conversation until 5 months after the incident.

[23]The effect of these points is that it is that no account given during the course of these proceedings, whether in witness evidence or found in documents, can be treated as an accurate and reliable account of exactly what was said by Ms Diaconu to Mrs Robu about the claimant in early March 2023. The claimant also does not know, and cannot know, exactly what was said. Her understanding is based on what she recalls Mrs Robu told her three weeks after the conversation itself. What Mrs Robu said then could have been based on an accurate recollection of the conversation, but equally she may have misremembered or misinterpreted what was said by Ms Diaconu.

[24]As a result of these issues I have not been able to make a definite finding about the exact words of what was said by Ms Diaconu to Mrs Robu in early March 2023. I have not approached the task as being deciding that one account is accurate and one is not. I have taken the view that what both women have said in evidence or during the grievance will not be an accurate account but the version of events that they now recall, having been asked to recall a single short conversation over 3 years after the event.

[25]What is not disputed is that there was a conversation between the Mrs Robu and Ms Diaconu in early March 2023 and during this conversation there was a discussion about the claimant and her relationship with Mr Marko. In this context I am referring to ‘relationship’ in the widest possible sense rather than any specific type of relationship. Looking at the various different accounts provided, and the text messages sent between Mrs Robu and Ms Diaconu in late March 2023, I have been able to reach some conclusions of what is common ground or appears likely to have been said. These conclusions are based on based on points of consistency between the various accounts and within the text messages that were sent at the end of March 2023. 25.1. Before the conversation Ms Diaconu believed that the claimant had some sort of relationship with Mr Marko outside work. She had been told by Mr Slezak that Mr Marko had stayed at the claimant’s house on at least one occasion. This is apparent from some text messages. Ms Diaconu was consistent in reporting having had a had this conversation previously with Mr Slezak. 25.2. In March 2023 there was a conversation between Ms Diaconu and Mrs Robu about the claimant. During this conversation one of them made a comment about whether the claimant was like a saint or not. Both Mrs Robu make reference to a comment about saintliness in witness evidence and in the text messages. The gist of this is that Ms Diaconu said that the claimant was not a saint. Ms Diaconu was correcting how she thought Mrs Robu viewed the claimant. 25.3. This lead to a discussion about the claimant’s relationship with Mr Marko. Ms Diaconu’s texts subsequently make it clear she said that they had a relationship and in the text she says “I know for a fact they did more than just talk”. 25.4. A comment was made by Ms Diaconu that could be understood as saying that they may have had sex. The phrase that has been used in English is that they “slept together”. This is a colloquial phrase that can mean that two people have had sex but could mean just that they shared a bed. There would generally be some implication of intimacy. I do not think that Ms Diaconu actually said that they had sex. I heard that the Romanian phrase used had a similar dual meaning, with the implication that they may have had sex without expressly saying so. 25.5. The general gist of the conversation was just that the claimant and Mr Marko had a relationship outside of work that either was a romantic or sexual relationship, or had the potential to become such a relationship.

[26]Mrs Robu told the claimant about the conversation on or around 25 March 2023. The claimant was very upset on hearing this. She initially thought that Mr Marko had been spreading rumours about their relationship. She sent a message to him on 25 March 2023 asking him about whether they had sex as she had heard that others were talking about this. He confirmed they had not.

[27]On 28 March 2023 the claimant confronted Ms Diaconu. Ms Diaconu says that the claimant was aggressive and shouted at her. I accepted this was the case. Ms Diaconu sent a message to Ms Robu the same day in which she said the claimant “came to me screaming about how I could speak of her like that”. I also heard from other witnesses of occasions where the claimant had acted confrontationally. These accounts were consistent and I concluded that the claimant had a tendency be confrontational when upset. The informal grievance process

[28]On around 1 or 2 April 2023 Mr Marko spoke with his manager, Richard Watts. He explained to Mr Watts that rumours were being spread about him and the claimant and the claimant had accused him of doing this. Mr Watts offered Mr Marko the option of pursuing the matter informally or formally and explained the difference in the processes. Mr Marko opted for an informal process. The informal process would involve speaking to those directly involved to try and resolve matters by directly liaising with them. A formal grievance would include a more detailed investigation and formal outcome.

[29]Mr Watts then spoke to the claimant. Mr Watts says that he offered the claimant the same options as she had offered to Mr Marko. Mr Watts says that at that stage the claimant also wanted to pursue the matter informally and said that she only wanted an apology from Ms Diaconu and that such matters were not discussed again.

[30]I accepted that the claimant at this point agreed to an informal process. She has not said otherwise in her evidence. However, I appreciate that she may have perceived that process as having been instigated by Mr Marko’s complaint. Therefore, she may not have had a sense of ownership about the process, even though Mr Watts has said he treated it as a joint complaint.

[31]Mr Watts then spoke with Ms Diaconu. Ms Diaconu acknowledged having spoken about the claimant with Mrs Robu and that she believed she was in a relationship with Mr Marko. She agreed not to speak about the matter again and that she would apologise to Mr Marko and the claimant.

[32]Mr Watts met with the claimant to inform her of the outcome and that Ms Diaconu would apologise. According to Mr Watts, he then met with the claimant a third time with Marisa Simpson also present. This was because the claimant says that Ms Diaconu had not apologised and the claimant was upset.

[33]The claimant’s account of these follow up meetings was unclear. She said that she was called to a meeting on 3 April 2023 with Mr Watts and Marisa Simpson. She complains that she was not allowed anyone to accompany her to this meeting and she was humiliated and intimated by them. I have concluded this was the third meeting that Mr Watts referred to, and the claimant did not provided an account of the second one.

[34]It was generally accepted by all parties that Ms Diaconu never did apologise to the claimant in person. Ms Diaconu said that this was because the claimant had always been unapproachable. She described in her evidence a couple of incidents when the claimant acted in an antagonistic way towards her shortly after, such as blocking her way in the workplace. Given what I have already concluded about the claimant acting in a confrontational manner when upset I accepted that it is likely that the claimant continued to do so in relation to Ms Diaconu, hence Ms Diaconu could not actually apologise to the claimant. Formal grievances

[35]The claimant raised a formal complaint in writing on 4 April 2024. This was handwritten. She gave it to her manager James Moore.

[36]Mr Moore was unable to easily read the complaint. I accepted this was the case. A copy of this was provided in the bundle and I was unable to easily read it all.

[37]Mr Moore said that he was about to leave his shift when the claimant gave him the letter. He then gave it to another manager to deal with. Given that he had given the letter to someone else he did not personally follow the matter up further. That manager appears to have taken no action in respect of this grievance. I did not hear any evidence from that manager so cannot make any further findings in respect of the reason for this.

[38]The claimant was then signed off work from 6 April 2023 due to planned medical treatment. She was initially absent for 3 weeks. During that time no one followed up on the claimant’s grievance dated 4 April 2023. I also noted that the claimant did not do so either.

[39]On 28 April 2023 the claimant sent a second grievance. This was type written and she sent it to several managers including Carl Butler and Tom Richardson. Within this the claimant’s main complaint was that Mr Marko had been spreading rumours about her in the workplace and that he continued to pursue her after she ended the relationship. She also complained about Ms Diaconu spreading the rumours. Reading the letter, the claimant’s complaints about Ms Diaconu appear secondary to the complaints she makes about Mr Marko.

[40]The claimant remained signed off work at this time. It was unclear from the evidence when she returned to work. In her evidence the claimant says she returned to work on 15 May 2023, but the summary in the grievance investigation report indicates she was off until 21 May 2024 and was then signed off again from 26 May 2024. Either way, the claimant was absent at the time she raised the grievance.

[41]On 26 May 2023 the claimant sent an email to Carl Butler attaching a sick note. In this email she said that she would not be able to work until her complaint was resolved. Mr Butler sought advice from HR on 28 May 2023.

[42]On 31 May 2023 a different manager, Mason Lucking wrote to the claimant asking her to attend a meeting to discuss her absence and the matters raised in her second grievance. The claimant confirmed that she would be able to attend a meeting on 2 June 2023. I was not provided with any account of this meeting but understood that it took place. The claimant agreed she would return to work on 5 June 2023.

[43]The claimant attended a first formal meeting about her grievance with Carl Butler on 6 June 2023. The meeting was lengthy, lasting almost 2 hours. The notes show Mr Butler asked the claimant about her grievance and she was able to explain her complaints and what she sought as an outcome. Mr Butler asked the claimant if there was anything else she wanted to say and the claimant explained she had a second complaint and she was also able to explain her frustration about how long the grievance process had taken. At the end Mr Butler informed the claimant that he would be investigating her complaints.

[44]Having reviewed the notes, alongside the original grievance, I have noted that the focus of the claimant’s grievance was not Ms Diaconu. The claimant’s main complaint was about Mr Marko. At the end of the meeting the claimant stated that she wanted Mr Marko to be disciplined.

[45]As part of this case the claimant says that the manner in which Mr Butler conducted this meeting meant that she felt she was not given an opportunity to be heard. The claimant has not expanded on this in evidence. She has not provided any explanation about why she felt unheard. Reviewing the notes of the meeting it is apparent that the claimant was given ample opportunity to explain to Mr Butler what her grievance was about, including adding further complaints.

[46]On 9 June 2023 the claimant wrote to Mr Lucking and asked to take 2 weeks holiday from 12 June 2023. In the email the claimant stated she wanted time away from work due to the ongoing situation and she hoped action would be taken while she was away.

[47]The claimant did not return to work on 27 June 2023 at the end of her leave. She was signed off work from 27 June 2023 until 27 August 2023 with depression.

[48]According to Mr Butler he sought advice from his manager and they agreed to pause the investigation until the claimant returned. I accepted that this was likely the case. There was no evidence that the claimant was informed of this decision at the time.

[49]On 30 July 2023 the claimant emailed the respondent’s CEO asking why no action had been taken about her complaint. This was passed on to Mr Butler and he was asked to resume the investigation. I noted that the focus of the claimant’s email is the need to punish Mr Marko. The claimant expressly says that “my managers don’t want to take any action because they don’t want to punish the man (Miroslav Marko) that worked there for 10 years and the woman (Alexandra Diaconu) that is in the team of the manager that humiliated me.”

[50]Mr Butler resumed the investigation. He arranged interviews with Richard Watts and Marisa Jones. These took place on 4 and 6 August 2023.

[51]Mr Butler had annual leave booked for the middle of August. He delegated part of the investigation to Stephen James, another manager, in his absence. Mr James met with the claimant on 10 August 2023. The claimant was accompanied by a trade union representative at this meeting.

[52]At this meeting Mr James explained he had been asked to investigate. He asked the claimant about her complaints and who the various people referred to were. Mr James worked through a series of questions and the claimant was able to explain her concerns. I have noted that the focus of her concern remained Mr Marko, and her allegation that it was him who had been spreading rumours. She had also made complaints about his wider conduct after they stopped dating, such as him continuing to give her chocolate. Again, the claimant said she thought Mr Marko should be disciplined or dismissed. The claimant also said she wanted Ms Diaconu to be dismissed. In this meeting the claimant expressly stated that as an outcome she wanted compensation.

[53]The meeting was adjourned and Mr James informed the claimant that he would be holding meetings with other individuals.

[54]Mr James interviewed Ms Diaconu, Mr Miroslav and Mr Slezak during August 2023. On 1 September 2023 he met with Mrs Robu. He also met with a number of other employees to ask questions about some wider matters in the warehouse. Another manager, Tony Gamester also interviewed some other employees about these issues.

[55]The claimant continued to be signed off work during September 2023. She returned to work on 28 September 2023. On the claimant’s return to work she attended a second meeting with Mr James. The claimant was again accompanied by her trade union representative at this meeting. The claimant had emailed Mr James on 4 September 2023 with comments on the notes from the previous meetings. She had made 9 points and attached guidance from ACAS about harassment. At the beginning of the meeting the claimant’s email was discussed. The notes record that Mr James was unwilling to amend the previous notes but would add her comments from the email. The comments are then incorporated into the notes of the second meeting.

[56]Much of the discussion at this meeting related to whether the claimant would be able to see the statements of others who had been spoken to as part of the investigation. The claimant also explained she had additional text messages she could provide as evidence, which she said she would send to Mr James. From the evidence provided during this hearing it appears the claimant did not send any further evidence to Mr James.

[57]The following day the claimant’s trade union representative wrote to Mr Butler asking for an update and if he could be provided with statements from other witnesses. Mr Butler responded to say that he was waiting to receive the investigation documents from Mr James. He also noted that the claimant had approached him directly seeking an update, but the way she did so was inappropriate.

[58]In early October 2023 Mr Butler carried out further interviews with Mr Moore and Mr Watts. I understood from Mr Butler’s evidence that Mr James was unable to interview them as they were at the same level in the management hierarchy. Mr Butler was more senior, so only he could interview them, hence the interviews had to wait until his return to work. He also had further questions for them.

[59]On 4 October 2023 Mr Butler wrote to the claimant to ask her to a meeting to discuss the grievance outcome. This was proposed for 9 October 2023. Mr Butler has said that the claimant was not willing to attend a meeting and asked for it in writing.

[60]The claimant was sent the grievance outcome on 29 October 2023. Within this Mr Butler clarified there were 8 different complaints that were the subject matter of the grievance including the time taken to complete the grievance.

[61]Mr Butler did not uphold any of the complaints about the underlying allegations that rumours had been spread or about Mr Marko’s conduct. With regards to the time taken for the grievance, Mr Butler set out what had happened that lead to the delays, including a summary of the claimant’s absence from work. He acknowledged that the grievance had taken longer than it should and he said that he would ensure managers were all aware of the relevant policy and timelines.

[62]The claimant appealed the outcome. I am not making further findings of fact about what happened with the grievance process as it does not form part of this case.

[63]The claimant had already undertaken Early Conciliation between 13 June 2023 and 25 July 2023. She submitted her ET1 on 1 November 2023. Miscellaneous findings of fact

[64]The above sets out the chronology of events. There are three parts to this. 64.1. The initial discussions between Ms Diaconu and Mrs Robu followed by the relaying of information about the conversation to the claimant by Mrs Robu. 64.2. The informal grievance process instigated by Mr Marko and handled by Mr Watts. 64.3. The formal grievance process instigated by the claimant.

[65]The findings of fact set out above relate to the sequence of events. In addition I have reached a number of conclusions that do not fit neatly into the chronology. Some of these conclusions also relate to where there is an absence of evidence.

[66]The claimant was absent from work for much of the period of time I have been considering. The relevant events started around the first week of March, when Ms Diaconu and Ms Robu had their conversation. The claimant did not find out about this until around 25 March 2023. She was then signed off work from 6 April 2023. This was a period of 12 calendar days. I was not provided with evidence of how many days the claimant worked during that time, but I doubt she would have been at work all 12 days.

[67]The claimant did not return to work until 15 May 2023, possibly later. She was signed off again from 26 May 2023. This is a period of 11 calendar days. She returned to work on 5 June 2023. She took annual leave from 9 June 2023, so was only at work for a maximum of 4 days. She then was signed off work from 27 June 2023 and did not return to work until 28 September 2023.

[68]The consequence of this is from the point when the claimant first heard about the conversation between Ms Diaconu and Mrs Robu and the end of September 2023 the maximum number of days she could have been in the workplace was 27. It is unlikely she was at work every one of those days, given that the claimant worked shifts.

[69]Part of the claimant’s complaint is that “rumours” were spread about her. The only evidence provided about any discussion about the claimant was related to limited conversations between Ms Diaconu and Mrs Robu and Ms Diaconu and Mr Slevek. These were limited in scope. There was no evidence that the information shared between these individuals was shared with anyone else within the workplace.

[70]The claimant says that as a result of the conversation between Ms Diaconu and Mrs Robu she was humiliated at work and she has asserted at points that colleagues were laughing at her. The claimant has not provided any evidence about incidents when this occurred, it is merely an assertion. Given that the claimant was in the workplace for such short periods of time over the relevant period, if any such incident had occurred it would be reasonable to expect the claimant to recall when it happened and provide details. She has not done so. I have concluded as a result that this did not happen, it is just an assertion made by the claimant to try and support her claim. This is also consistent with my conclusion that Ms Diaconu and Mrs Robu did not discuss the claimant’s relationship with Mr Marko with anyone else, other than the initial discussion between Ms Diaconu and Mr Slevek.

[71]In terms of the wider context, I have heard from witnesses that the workplace was one where relationships between employees was not uncommon. A level of gossip was also not uncommon. This is consistent with some of the text messages between Mrs Robu and Ms Diaconu, where they comment on this.

[72]The claimant was upset by the fact that Mrs Robu and Ms Diaconu had a conversation about her relationship with Mr Marko. The claimant did not provide any explanation in her evidence about why she found this particularly upsetting, given the background set out in the previous paragraph. I asked the claimant some questions about this, given there may be aspects of her circumstances or background that I was not aware of that made discussions about her personal relationships at work more pertinent. The claimant said that there was nothing particular about her situation and that in her view any woman would feel the same.

The Law

[73]The Claims pursued by the Claimant are: 73.1. harassment on the grounds of disability (section 27 Equality Act 2010); 73.2. direct discrimination because of disability (section 13 Equality Act 2010); Harassment – Section 26 Equality Act 2010

[74]Under section 26 Equality Act 2010 (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. … (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.

[75]With a claim for harassment the claimant must prove on the balance of probabilities that the conduct he has complained of occurred.

[76]The test of whether the conduct amounted to harassment is part objective and part subjective. The Tribunal must take into account the claimant’s subjective perception but it is also required to look at that objectively to see if it was reasonable for the claimant to have considered his dignity to be violated or that it created an intimidating, hostile, degrading, humiliating or offensive environment.

[77]In Grant v HM Land Registry

[2011] EWCA Civ 769

the Court of Appeal said that: “Tribunals must not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive environment”. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[78]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

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

[79]Whether or not the conduct is related to a protected characteristic is a matter of fact for the Tribunal drawing on all the evidence before it. Direct discrimination – section 13 Equality Act 2010

[80]Direct discrimination takes place where a person treats the claimant less favourably because of race than that person treats or would treat others. Under s23(1) Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. Whether treatment is less favourable is a matter of fact for the Tribunal to determine. The test applied is objective, i.e. it is not just a matter of a claimant believing any treatment is less favourable.

[81]Decisions are frequently reached for more than one reason. Provided the protected characteristic or, in a victimisation claim, the protected act, had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport

[1999] IRLR 572

, HL)

[82]Section 136 of the Equality Act 2010 sets out the burden of proof. Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision.

[83]Accordingly, where a claimant establishes facts from which discrimination could be inferred then the burden of proving that the treatment was in no sense whatsoever unlawful passes to the respondent. Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

. Once the burden of proof has shifted, it is for the respondent to prove that they did not commit the act of discrimination. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.

[84]The Court of Appeal in Madarassy v Nomura International plc

[2007] EWCA Civ 33

;

[2007] IRLR 246

, a case brought under the then Sex Discrimination Act 1975, states: ‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’

[85]Inferences can only be drawn from established facts and cannot be drawn speculatively or on the basis of a gut reaction or ‘mere intuitive hunch’ (Chapman v Simon

[1994] IRLR 124

) or from ‘thin air’ (Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

). Discrimination also cannot be inferred only from unfair or unreasonable conduct (Glasgow City Council v Zafar

[1998] ICR 120

[86]This means that to succeed with her claim for direct discrimination the claimant must first show that she has been treated less favourably than others in the same circumstances. The claimant must also have shown facts from which we can infer that the reason for the less favourable treatment may have been due to the claimant’s disability. Only after this does the burden shift to the respondent who must show that there is a different nondiscriminatory reason for the treatment, that it is in no way due to the claimant’s disability. Time Limits

[87]Under section 123 Equality Act 2010: “(1) […] a complaint within section 120 may not be brought after the end of –(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. […] (1) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (2) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something – (a) when P does an act inconsistent with doing it, or (b) of P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[88]In Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

the Court of Appeal set out the meaning of ‘act extending over a period’ in the context of discrimination claims. The same test applies for detriment claims brought under the Employment Rights Act 1996. The test is whether there was an ongoing situation or continuing state of affairs, distinct from a succession of isolated or specific acts.

[89]In Arthur v London Easter Railway Ltd

[2007] IRLR 58

the Court of Appeal held that when relying on a series of similar acts, the claimant needs to show that the claim was presented in time for at least one of those acts. When ascertaining if there was as series of similar acts the Court of Appeal said: [31] ‘The provision can therefore cover a case where, as here the complainant alleges a number of acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period … there must be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them … the necessary connections were correctly identified by Judge Reid QC as(a) being part of a “series” and

(b) being acts which are “similar” to one another. … [35] It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged. I do not find “motive” a helpful departure from the legislative language according to which the determining factor is whether the act was done “on the ground” that the employee had made a protected disclosure. Depending on the facts I would not rule out the possibility of a series of apparently disparate acts being shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure’. Discussion and conclusions Harassment

Discussion and conclusions

[90]There is one allegation of harassment and I have considered this first because it occurs first in the chronology.

[91]The claimant alleged that: “Around the end of March 2023 Alexandra Diaconu spread rumours that the claimant was sleeping with Miroslav Marko. In particular, Alexandra Diaconu told Meehela Robu, a friend and colleague of the claimant, that the claimant was sleeping with Miroslav Marko.”

[92]I concluded that in March 2023 Mrs Robu and Ms Diaconu did have a conversation that related to whether or not the claimant had a relationship with Mr Marko. I also accepted that Ms Diaconu did use a phrase that could imply that they had sex, although she did not expressly state this was the case. The conversation was in Romanian, but the equivalent phrase was that they “slept together”. This phrase is often understood as two people having some level of intimacy and potentially a sexual relationship.

[93]As noted above, I was unable to reach a conclusion on exactly what was said. The evidence about this particular conversation from all witnesses was unreliable due to the passage of time before it was ever reported or either participant providing a written account of what they remembered. However, the gist of the allegation is made out. Ms Diaconu believed that the claimant had a relationship with Mr Marko that potentially had a sexual element and she communicated this to Mrs Robu.

[94]The question is whether or not this amounts to harassment related to sex or of a sexual nature. There are the following questions I need to determine: 94.1. Was that conduct unwanted? 94.2. Was the conduct related to sex or of a sexual nature? 94.3. Did it have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

[95]The claimant was clearly upset when she heard about the conversation between Mrs Robu and Ms Diaconu. She immediately confronted Ms Diaconu and was angry at her. She also remained upset by it throughout the grievance process. The conduct was unwanted.

[96]The second issue is whether or not that conduct is related to sex or of a sexual nature. A comment that a person is sleeping with another, with the implication that they may have had sex, is conduct of a sexual nature.

[97]The key issue in this case is whether that conduct amounted to harassment, in that it had the proscribed effect set out in the legislation. When deciding if the conduct had that effect I need to take into account the following: 97.1. the perception of the claimant; 97.2. the circumstances of the case; and 97.3. whether it is reasonable for the conduct to have that effect.

[98]The conduct that the claimant complains of in this case relates to a single conversation between Ms Diaconu and Mrs Robu which was relayed by Mrs Robu to the claimant several weeks later. This is described by the claimant as “spreading rumours”. It is this conduct that must amount to harassment, taking into account the above factors.

[99]As an initial point, I wish to distinguish this from some of the other complaints that the claimant made during the grievance that were not ultimately pursued in this claim. As I have found, the complaints the claimant raised in the claimant’s grievances focussed on Mr Marko. She alleged that he had been spreading untrue rumours about their relationship and that he had continued to harass her after she told him she did not wish to pursue a relationship with him. This type of conduct (which has not been alleged or proven in this case) would often amount to harassment. There are a number of aspects of this conduct which make it reasonable for a person to view it as violating their dignity or creating a humiliating atmosphere. For example, there is a breach of trust by an ex-partner or the fact that it may be done in retaliation following the end of a relationship. An ongoing attempt by one person to pursue a relationship with another would often amount to harassment, when it is clear the feelings are not mutual.

[100]The conduct I am considering is not that of Mr Marko. The complaint of harassment is about Ms Diaconu’s conduct. The allegation against Ms Diaconu is both significantly more limited in scope and different in nature. There was no previous intimate relationship between the claimant and Ms Diaconu, so no breach of trust. The complaint is also about a single conversation with one person who was a friend of the claimant. As I have concluded, there was no evidence that this information was repeated to anyone else within the workplace.

[101]The claimant was clearly immediately angry at Ms Diaconu and upset by what she had said. The claimant has said that it was humiliating and degrading. I have struggled though to understand why the claimant felt humiliated because of the conversation between Ms Diaconu and Ms Robu, as opposed to because of her perception that Mr Marko was spreading rumours. The claimant has not provided a coherent explanation in this respect, other than just suggest that any woman would feel that way. I am not persuaded that is the case. However, I accepted that the claimant did feel upset to the extent it had the effect for her subjectively.

[102]The real issue for me to determine is whether it was reasonable for Ms Diaconu’s conduct to have that effect, viewed objectively and taking into account the circumstances of the case.

[103]The relevant circumstances, which include the background facts, context and the specific conduct are as follows: 103.1. The claimant did have some form of relationship with Mr Marko. I use relationship in its broadest sense here. They were colleagues at first but then started to see each other outside work. They went on some dates and were in contact outside work. The claimant accepts that Mr Marko did stay at her house once, which Mr Slezak knew because he had picked Mr Marko up from there. She has also said they shared a bed, though denies they had sex. Sharing a bed with another person suggests a level of closeness or intimacy. 103.2. The claimant says it was not a relationship. She objected to the suggestion they had slept together. The relationship may have just been at an early stage, in that they were just dating and getting to know each other. However, the notion of dating suggests it was a relationship that could have developed into a romantic and/or sexual relationship had they both been interested. Many people would describe that as some type of relationship and it is certainly a different type of relationship than just being colleagues or acquaintances. 103.3. The claimant and Mr Marko were both adults who were single at the time. There was no prohibition on workplace relationships. On the contrary, I heard that relationships at work were commonplace. There was nothing wrong or improper or even unusual about them dating each other or potentially having a romantic or sexual relationship. 103.4. The conduct the claimant objects to is a single conversation between Ms Diaconu and Ms Robu. Ms Robu was a good friend of the claimant. Ms Diaconu informed Ms Robu what she understood, which to all extents and purposes is the same as I have just outlined. Namely, the claimant and Mr Marko had some form of relationship outside work which was of a type that could have been the start of a romantic or sexual relationship. 103.5. The gist of what was discussed was true, and consistent with the claimant’s account of the extent of the relationship she had with Mr Marko. Mrs Robu was the claimant’s friend and she also knew that the claimant had dated Mr Marko. 103.6. The only aspect which the claimant objects to is the suggestion that she had slept with Mr Marko, so by implication she had sex with him. However, the claimant acknowledges that Mr Marko had stayed at her house and they had shared a bed, though she says they did so chastely. 103.7. The phrase used was just that the claimant slept with Mr Marko. I accepted that this would often be understood as having had sex with someone. However, this is a phrase that is euphemistic. Suggesting that someone who is in a relationship with someone may have slept with them is not salacious. It does not suggest in itself any improper or indecent behaviour.

[104]Taken as a whole I do not find that the specific conduct the claimant complains of in her harassment claim looked at objectively could reasonably be seen as conduct likely to violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

[105]At most the conversation was idle but relatively trivial gossip between colleagues about the claimant’s relationship with another colleague. The majority if the things said were true and known about by both women.

[106]The only aspect that could be said to be untrue was the suggestion that the claimant and Mr Marko had slept together. This may have been speculation or a misunderstanding by Ms Diaconu. Equally Mrs Robu may have misunderstood what Ms Diaconu meant. Either way, in the context I have described it was wholly innocuous in any event.

[107]I do not accept the claimant’s assertions that any woman would be humiliated by such a comment, given that her and Mr Marko were both adults and single at the time and it was just a matter of fact comment, rather than suggesting anything improper or scandalous. I asked the claimant if there was any further context that may have meant that it would have that effect for her, such as any culturally specific context I am not aware of. The claimant was insistent that this was not the case.

[108]It is also an exaggeration to say that Ms Diaconu was “spreading rumours”, given that she only spoke to Mrs Robu about matters which were mostly true and known about by Mrs Robu already. The matter did not spread any further than that.

[109]For these reasons the claimant’s claim for harassment fails. The conduct that I have found occurred, which is the only conduct the claimant says is harassment as part of this case, does not amount to harassment when viewed objectively. It was not reasonable for the claimant to view this single conversation between Mrs Robu and Ms Diaconu as having violated her dignity or creating an intimidating, hostile, degrading or humiliating environment. Direct discrimination

[110]There are 4 allegations of direct discrimination. They all relate to the grievance process.

[111]The first 2 complaints relate to the timescales in dealing with the claimant’s formal grievance. I will deal with those together as the analysis of both is essentially the same.

[112]The claimant says the first respondent failed to deal with her grievances of 4 April 2023 and 28 April 2023 in a timely manner. She says this was less favourable treatment compared to how Mr Marko was treated when he raised a complaint with Mr Watts on 1 April 2023.

[113]In terms of what happened with the claimant’s grievances, they were not dealt with promptly. The one of 4 April 2023 essentially was not dealt with at all. The claimant raised another on 28 April 2023, which was then treated as superceding the one of 4 April 2023. That was not progressed until the end of May 2023. There were then further delays with the investigation, which was not properly progressed until the beginning of August 2023. It is accurate to say that both grievances were not dealt with in a timely manner.

[114]With a direct discrimination claim I am not considering whether the respondent acted fairly or properly or unreasonably in a general sense. The claim is about being treated less favourably than a comparable person without the relevant protected characteristic, which in this case is sex. The claimant expressly relies on Mr Marko as her comparator. To succeed with her claim the claimant first needs to show that there are no material differences between her and Mr Marko. She needs to show that he has been treated more favourably than her. She also needs to prove some facts from which I can then infer that the reason for the difference in treatment could have been her sex.

[115]Both these claims fail because for the purposes of this claim Mr Marko’s circumstances are materially different to those of the claimant. When considering the delay in the grievance process there would need to be as a minimum the following similarities between the claimant and Mr Marko: 115.1. He would need to have raised a formal grievance in writing that he wanted to be formally investigated. 115.2. That grievance would need to have included multiple allegations against more than one person. 115.3. That grievance would need to have followed an informal grievance process and include complaints about how he was treated within that informal process.

[116]Mr Marko did none of these things. At no point did he raise a formal written grievance. He only raised an informal complaint which he agreed could be dealt with informally. The complaint was narrow, just that he heard rumours were being spread.

[117]The claimant was not in a comparable situation. She raised two written grievances which she asked to be dealt with formally. She included within her grievance complaints about Ms Diaconu but she also included multiple complaints about Mr Marko. This included more complex allegations about him having been harassing the claimant for some time after they stopped dating.

[118]There were also additional circumstances, which complicated the claimant’s situation which were not applicable in Mr Marko’s case. The claimant was absent for work for many months due to sick leave and annual leave. This complicated the progress of the investigation.

[119]The claimant expressly names Mr Marko as a comparator. Relying on him as a comparator means that the claims about the delay with the grievance fail because the claimant has not shown that she was treated less favourably than Mr Marko. Mr Marko did raise a formal grievance and the claimant did.

[120]For completeness, I also considered whether the claimant’s claim could succeed relying on a different hypothetical comparator, i.e. what if Mr Marko had raised a formal grievance about the situation. There were delays with the grievance process. To succeed with a claim based on a hypothetical comparator there needs to be some evidence from which I could properly infer that the claimant’s sex may have been a factor in the delays. Essentially, is there any evidence that shows that the first respondent may have handled a male employee’s formal grievance in the same circumstances more swiftly.

[121]There was no such evidence from which I could conclude that the respondent would have handled the claimant’s grievance differently if she were a man. I was not provided with any evidence about how the first respondent tended to handle grievances generally that may have indicated the delays in the claimant’s case were unusually long. All I have seen is that there were delays in how the claimant’s grievance was handled. Some of these delays may have been probably avoidable, such as the failure to do anything with the original 4 April 2023 grievance. There is no evidence to suggest this was due to the claimant’s sex. Other delays were explicable, such as the reasonable decision to wait for the claimant’s return from sick leave to progress the investigation and the need for the investigating managers to speak to multiple witnesses who worked across different shifts or who were absent for various reasons.

[122]For these reasons the first two direct discrimination claims do not succeed.

[123]Finally, I turn to the 3rd and 4th allegations of direct discrimination. These both relate to the conduct of the people handling the grievance during various meetings. The claimant says that the manner in which both Mr Butler and Mr James conducted the meetings meant she felt she was not given the opportunity to be heard.

[124]It remains unclear exactly what the claimant means in respect of this allegation. She provided no evidence about the meetings that would help explain why it was she felt that she was not heard or given the opportunity to be heard. Having reviewed the notes from the time, and the documents relating to the grievance as a whole, I have concluded in any event that it was not the case that she was not heard. The minutes of the meetings indicate that the claimant was given ample opportunity to explain what her complaints were and why she felt the way she did. She was able to provide comments after the meeting to Mr James. While he did not change the notes, he incorporated the claimant’s comments to ensure they formed part of the record of the investigation.

[125]The claimant has not proved that the conduct she complains of as being less favourable happened. She has not shown that there was anything untoward about how Mr Butler and Mr James conducted the grievance meetings. She has not shown she was not heard, could not participate, was ignored or that they gave the impression that this was the case. Therefore, these claims do not succeed because the claimant has not proved she was treated in the way she alleges.

[126]To succeed with direct discrimination claims the claimant again would need to show that how she was treated was less favourable than a male comparator. This would have been someone who raised a formal grievance and attended grievance meetings. The claimant also appeared to be relying on Mr Marko as a comparator for these claims. Given that Mr Marko did not raise a formal grievance therefore did not attend formal grievance meetings or investigation meetings he would not be an appropriate comparator. There is also no evidence from which I could infer that Mr Marko, or any hypothetical male comparator, may have been treated any differently by either Mr James or Mr Butler.

[127]For these reasons all four direct discrimination claims do not succeed. Time limits

[128]As all claims do not succeed in respect of their merits, it is not necessary for me to also determine whether any claims were out of time and if time limits need to be extended.

[129]The ET1 was submitted on 1 November 2023. Early Conciliation was started on 13 June 2023 and ended on 25 July 2023.

[130]The claims about the delay grievance process appear to be in time. The grievance process was ongoing up until 29 October 2023. The meetings with Mr Butler and Mr James were discrete events, but part of the grievance process that was ongoing until the end of October 2023. Therefore, I accept they were part of a course of conduct or it would otherwise be just and equitable to extend time in respect of those claims.

[131]The complaint about harassment is separate from the subsequent grievance. It was a single incident that occurred in late March 2023. Based on the dates of Early Conciliation the deadline to submit this claim was 25 August 2023. The Tribunal would only have jurisdiction to hear this claim if it decided it would be just and equitable to do so.

[132]In deciding whether I would have extended time I weighed up a number of factors.

[133]Factors which would support extending time are: 133.1. The claimant had raised a grievance and there were delays with that process. The claimant acted swiftly once she received the grievance outcome. 133.2. The claimant was suffering from depression at the time.

[134]On the other hand: 134.1. The claim for harassment was about a single narrow incident. The grievance was wider than this, including multiple complaints. The claimant did not need to wait for the grievance to be completed to bring a claim about the March 2023 conversation. 134.2. The claimant had undertaken Early Conciliation promptly, indicating that she was already considering bringing a claim. 134.3. During the grievance hearing in August 2023 the claimant also expressly stated she was seeking compensation. This indicates that she was already anticipating litigation as compensation is not something that is provided for within the first respondent’s own grievance process.

[135]On balance I have decided it was not just and equitable to extend time for the harassment claim. The claim itself was about a single incident and the claimant appears to have been intending to pursue a claim and ready to do so in August 2023 but did not do so. The ongoing grievance and the claimant’s ill-health do not provide a sufficiently satisfactory explanation for the delay in bringing this particular claim. Therefore, this claim also does not succeed on the basis that the Tribunal does not have jurisdiction to hear the claim. Approved by: