Mrs V Keegan v Regal Health and Wellbeing Ltd (T/a The Massage Company): 3300617/2024
EMPLOYMENT TRIBUNALS
Case No 3300617/2024
Between
Mrs V KeeganClaimantRegal Health and Wellbeing Ltd (T/a The Massage Company)Respondent
Before
Employment Judge George, Ms H Gunnell, Mr J VaghelaDate 8 February 2026
JUDGMENT
[1]The name of the respondent is changed to Regal Health and Wellbeing Ltd (trading as The Massage Company).[2]On an occasion in August 2024, the respondent subjected the claimant to harassment related to sex/sexual harassment by the Centre Manager saying to her “I like girls, short, with blue eyes and a big bust”.[3]The claim was not presented within the applicable time limit for that complaint, but it is just & equitable to extend the time limit to 16 January 2024. The Tribunal has jurisdiction to consider this complaint.[4]Otherwise - in part by a majority (Employment Judge George and NLM Vaghela – employer-side NLM) - the complaints of sex related harassment and/or sexual harassment are not well founded and are dismissed. NLM Gunnell (employee-side NLM) dissented in part. See para.155 below for the extent to which this was a majority decision to dismiss the remaining complaints.[5]The unauthorized deduction from wages complaint is not well founded and is dismissed.[6]Compensation for sex related harassment will be considered at the remedy hearing on 13 March 2026 which is now confirmed. It will take place by CVP before
REASONS
[1]At the start of the hearing, we had available a final hearing file which had 274 pages to which some additions were made as we explain below. That is referred to as RB page 1 or as the case may be. The claimant had prepared her own exhibit bundle which had been divided into three sections. Her witness statement incorporated 22 exhibits (labelled VLK 1 to 22) which were found in that exhibit bundle. As we were working from electronic documents, it was easier to find specific pages in the sections of the exhibits bundle by referring to them by section number and page number within that section. Therefore, pages in the claimant’s exhibits bundle are referred to as CB1 page 1 to 58, CB2 page 1 to 46 and CB3 page 1 to 101. We also had access to the Tribunal file where we found the Record of a Preliminary Hearing conducted by Employment Judge Annand on 3 March 2025.[2]The claimant gave evidence and was cross-examined on a witness statement which she adopted in evidence. She also relied upon the evidence of Mr A Graham Buck, formerly the Assistant Centre Manager. He confirmed the truth of a statement which is found at VLK 6 or CB1 page 39.[3]The respondent relied upon the evidence of two witnesses who confirmed the truth of their statements and were cross examined upon them: Mr R Kerai, director and Mr P Sharma, former Centre Manager.[4]On Day 1 we refused an contested application by the respondent to adduce a screenshot of a sicknote and a series of emails which they argued were relevant to the credibility of Mr Graham Buck and to rebut a complaint by the claimant in her statement that the respondent’s director and witness (Mr Kerai) had been gratuitously offensive in an email he sent to her. We rejected that application for reasons which were given orally at the time and are not now repeated.[5]On Day 2, when the claimant was in the middle of giving evidence, the respondent disclosed 50 pages of the electronic Zenotti diary entries which they had been ordered to be produced long since by Employment Judge Annand. The claimant agreed that they should go in evidence and we admitted them. However, it put the Tribunal and the claimant in a difficult position because it was necessary to give time in the middle of the claimant’s evidence for her to read through the diaries so that she was aware of their contents before being asked further questions. The time taken disrupted the Tribunal timetable.[6]On Day 4 we granted a contested application by the respondent to rely upon late disclosed evidence in the form of a Therapist’s Assessment.[7]If the parties wish to have written reasons for either of the decisions on disputed matters, they should request them within 14 days of the date on which this reserved judgment is sent to them.[8]As a result of the impact on the timetable, it was necessary to reserve our decision. Unfortunately, we were not able to reach a decision on all issues within the time remaining for deliberation within the original time allocation. Furthermore, administrative error meant that the original date agreed between us to conclude our discussions had to be postponed until 9 January 2026. As a majority decision, the draft judgment and reasons has to be expressly approved by the non-legal members of the Panel. Those are the reasons why there has been a delay in returning the reserved judgment, for which we apologise.[9]This reserved judgment is divided into the following sections: The Issues (paragraphs 10 to 12). Findings of Fact (paragraphs 13 to 97). Our findings should be read as a whole but principle findings are located in the following paragraphs o The massages (starting at para.26); o LOI 50.d) the lift to work (para.56); o Did the claimant raise concerns with Mr Graham Buck? (starting at para.57) o The claimant’s resignation (starting at para.61) o LOI 50.b) & c) (starting at para.69); o LOI 50.f) (starting at para.92). The Law applicable to the issues (paragraphs 98 to 109). Conclusion on the List of Issues o Harassment (paragraphs 111 to 155 with a summary of the conclusions at para.155). o Time Limits (paragraphs 156 to 159). o Reasons for resignation (paragraphs 160 to 165). o Unauthorised deduction from wages (paragraph 166). Issues[10]The parties agreed that the issues remained those set out in Judge Annand’s order at paragraphs 44 to 69. We have made reference to but do not repeat those issues here. We use the paragraph numbers from that order (which was sent to the parties on 17 March 2025) when referring to specific issues.[11]After discussion with the parties, we agreed to decide at the initial stage whether the claimant resigned in response to any of the acts which we found to be unlawful. In that event, we would go onto consider whether the respondent would, as they allege, have dismissed her at about the time her employment ended in any event.[12]The Tribunal will need to assess compensation for the one complaint which has succeeded. This will be done at the provisional remedy hearing which we listed on dates provided by the parties to take place on 13 March 2026.
Findings of Fact
[13]We make our findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral, which was admitted at the hearing. We do not set out in this judgement all of the evidence which we heard but only our principle findings of fact, those necessary to enable us to reach conclusions on the remaining issues. Where it was necessary to resolve conflicting factual accounts we have done so by making a judgment about the credibility or otherwise of the witnesses we have heard based upon their overall consistency and the consistency of accounts given on different occasions when set against contemporaneous documents where they exist.[14]This is a majority decision. In places, the Panel are not agreed on particular findings of fact. In places the Panel are not agreed on the conclusions. Where a minority or majority finding of fact is recorded (or a minority or majority conclusion) the paragraph will start by identifying whose finding or conclusion is recorded. If there is no identification at the start of a paragraph of the panel member(s) whose views are recorded, then that paragraph sets out the unanimous views or finding of the Panel.[15]The claimant’s employment with the respondent started on 3 July 2023. She was interviewed by Mr Sharma on 26 June 2023. He was the centre manager and had himself only started employment by the respondent on 1 December 2022. He had received three months’ training before the Centre opened on 23 February 2023. This included some training in High Wycombe. He had prior experience in the fitness industry. We accept that he received training from the respondent in the role to be undertaken by those he would be managing as well as training in the Centre Manager role.[16]The fact and date of the interview is evidenced by an email at CB 1 page 12. A screenshot of the diary entry at CB 1 page 17 shows that it was arranged for the claimant to have a trade test between 5 and 7 p.m. on 27 June 2023. As the claimant relates in her paragraph 4, this was because, during her interview for a Sales Supervisor role, Mr Sharma noted that she had massage qualifications and suggested that she receive training as a massage therapist and take on a hybrid role. This would mean that she could undertake the sales supervisor role and cover massage therapists if they were absent through sickness or for some other reason. The trade test involve the claimant massaging Mr Sharma. The fact that this massage took place is supported by contemporaneous documents. Mr Sharma conducted himself appropriately during it and the claimant does not suggest otherwise.[17]We noted a statement in Mr Sharma’s witness statement paragraph 7 & 8 that he was notified that the respondent had hired the claimant and met her on 15 July 2023. In our pre-reading it seemed to us that this could lead to the inference that his evidence was that he was not involved in the recruitment and had not met the claimant before 15 July 2023. He explained the true position in oral evidence. We are satisfied that that is not correct implication but stems from an unfortunate wording of the statement and it was not what he intended it to mean.[18]The therapist role also involved elements of ‘upselling’. This means that a client may have booked, for example, a Classic massage and would be invited by the therapist on the day to agree to purchase some enhancements to the pre-booked massage.[19]We accept the evidence that a therapist earned more per hour than the sales supervisor. The claimant’s statement of main terms employment (RB page 86) states her job title to be “membership sales supervisor and massage therapist” and explains on the same page that her wage was £11.50 p.h. in the membership sales supervisor role and £12 p.h. in the massage therapist role. The claimant’s evidence was that she was predominantly to work as a Membership Sales Supervisor and as a Therapist to fill in or to provide emergency cover. There is documentary evidence that she stepped in (see RB page 249 when she covered a therapist who was unwell).[20]According to Mr Sharma, he was informed that the claimant did not have “the requisite training in accordance with the Respondent’s standard nationwide and was required to undergo continual training and monitoring”. One of the documents admitted late was Therapist assessment (added to the hearing file as RB page 275- 6). This two page document evidenced an assessment carried out on the claimant during her own training between 3 and 7 July 2023 in High Wycombe.[21]We accept that there were some action points on this assessment but she nevertheless passed with Merit which was a middle band Pass - the alternatives being Pass and Pass with Distinction. The claimant’s evidence was that she had not seen the document before it was produced by the respondent. Mr Sharma said she would have been given it by the National Training Manager. There is no countersignature to evidence that it was discussed with the claimant so we prefer the claimant’s evidence on this point. In general, the way the respondent documented internal procedures and the thoroughness and formality of the paperwork left something to be desired. Nevertheless, the manuscript action points in the box at the bottom of RB page 276 correlate to ticks in the boxes where the claimant has scored zero in particular areas and those are annotated with what needs to be done to improve.[22]While this is evidence to support Mr Sharma’s statement that there were grounds to require the claimant to practice her technique and carry out further training, the existence of this one document draws attention to the absence of any other training record to show that the claimant’s performance was assessed. There is no record of any feedback to the claimant about her massage technique during the weeks when she was employed and attended at the Centre.[23]Following the week’s training in the Classic massage the claimant received an induction at Ealing (see the schedule at RB page 110) with Mr Graham Buck who had just started as the Assistant Manager designate. The first date on which the claimant attended the Centre was 15 July 2023[24]Before going further, we note a particular relevant term of the claimant’s contract of employment. It includes a clause to the effect that the claimant will received training for her specific job (RB page 87) and: “the cost of any mandatory training will be borne by the Company and maybe (sic) subject to a training agreement which requires repayment by you to the Company of the cost of the training on a sliding scale in the event of the termination of your employment within a speciÞc time limit after commencing the training.”[25]Furthermore, the claimant signed a training agreement on 26 June 2023 (RB page 90) the effect of which was that she was responsible for the reimbursement of the cost of the Classic massage therapy course in the sum of £400 in certain circumstances. If she left employment within 6 months for any reason other than redundancy she would be required to reimburse 100% of the cost up to a maximum of £400. If she left between 6 and 12 months after completing the training then she would be required to reimburse 50% of the total cost up to £200. The training agreement includes authorisation for anything outstanding to be deducted from her final wage payment. The massages[26]According to paragraph 8 of the claimant’s witness statement Mr Sharma repeatedly requested her to massage him beginning with a 50 minute massage and later asking her for an 80 minute massage. She said that he told her that it was for training and development purposes and was company policy which, on her account she did not question at first.[27]Both the claimant and Mr Graham Buck say that she spoke to him at the end of July 2023 when she asked whether it was company policy for her to massage the Centre Manager. According to Mr Graham Buck, he approached Mr Sharma who said that it was for the claimant’s training.[28]The number and frequency of the massages that Mr Sharma requested the claimant give is hotly contested between the parties. It is relevant because the respondent’s explanation that the purpose of the massages was the claimant’s training needs is more plausible if there were a small number of occasions on which she was asked to provide them and less plausible if they were requested of her with the frequency that she describes. There is a limited amount of evidence other than the oral testimony of the claimant and Mr Sharma against which to assess their credibility on this point.[29]The claimant has disclosed some WhatsApp messages that she relies on as providing some circumstantial supporting evidence. Those WhatsApp messages do not refer to anything that leads to an inference that the claimant provided a massage to Mr Sharma in July other than that described as a Trade Test. If there was one, it was not reflected in the documentary evidence. A text sent on 5 August (RB page 250) stating “legs feel awesome” supports the claimant’s oral evidence that she gave a massage to Mr Sharma on 4 August. That does not mean there were no massages in July only that the WhatsApp messages do not support the claimant’s oral evidence that there were massages.[30]The claimant also sought disclosure of the electronic Zenotti diary from the respondent at an early stage. She explained their relevance to be that it would show when she was booked to provide massages with Mr Sharma as her client. Paragraph 11 of Judge Annand’s order requires the respondent to disclose the “Zettle diary or database” for July and August 2023. The order was to disclose entries “which contains the entry “Vicky training” or words to that effect”. That is plainly the same document as that disclosed on Day 2. The respondent did not disclose the diary, but rather an office rota (RB pages 108, 110 & 111) which included only the names of the front office staff rostered to be in the Centre on a particular day and not the therapists.[31]The respondent’s explanation for not disclosing the Zenotti Diaries as directed was confusing and unsatisfactory. Although they were eventually disclosed, our view was that they were not wholly reliable as record of each and every occasion when the claimant carried out a massage (see further below). Nevertheless, what they did record was of some assistance in piecing together a picture of the probable level of massages, as was the rota. We did not think either could be wholly ignored despite recording our dissatisfaction with the way the respondent had handled the disclosure process. It was argued on behalf of the claimant that this feet dragging adversely affected the credibility of the respondent’s witnesses. We do not think a general lack of credibility is shown – in particular in relation to Mr Sharma who was not involved in the disclosure of documents. The manner of the disclosure of the Zenotti diary is, however, part of the reason we are not satisfied that it is completely reliable.[32]The late produced printout of the Zenotti diary was 50 pages long (ZD page 1 to 50). The claimant’s evidence was that she had seen her own name in that diary for the occasions when, on her account, she was required to massage Mr Sharma as part of what he told her was ongoing training. On ZD page 5 there was an entry for a particular therapist (other than the claimant) which showed her having Mr Sharma as a client for “Introductory Swedish Massage 50 minutes”. His evidence about that was that he had collated feedback from clients and members around some development points that particular therapist needed. He had (understandable) difficulty reading the notes as the reproduction of the Zenotti Diary entries was poor quality but expected that they reflected what the points were and “what the upskilling and development points were” for that therapist. This was some evidence that he had booked a massage on one occasion with another therapist for reasons to do with that therapist’s professional development.[33]The diary entry ZD page 18 appears to show that the claimant appeared in Toddy’s diary as receiving a massage from him. These diaries were disclosed during the course of the hearing and when the claimant was asked about the entry she denied ever having a massage from Toddy. Mr Sharma’s evidence about that was that this was a training massage booked for the claimant to have with one of the experienced therapists about preparation for an 80 minute massage so she could have demonstrated to her what “great” looks like from one of the therapists whom Mr Sharma described as having particularly good reviews and feedback on Google as part of a drive to develop excellence in the role. He said that he himself would not have delivered a massage because what Toddy would have done was demonstrate different techniques and his own training of the claimant would have focused more on what he described as the “difference between 50 minutes and 80 minutes”. In other words it was part of the claimant’s training that she receive training from an experienced massage therapist.[34]Everyone apart from Mr Kerai was surprised that the claimant did not have a column on the Zenotti diary. Both Mr Graham Buck and Mr Sharma said they remembered seeing her in that diary on the top line where the massage therapist is named. The claimant also remembered seeing that which was why she asked for disclosure of the diary on that particular program. Both Mr Kerai and Mr Sharma gave evidence to the effect that the diary could not be amended. They said that it was not possible to delete from it because it was a programme approved by HMRC and linked to the provision of real-time pay data about the hours worked by staff. It seems improbable that it is not possible to make any changes at all even if there are errors which will lead to a therapist receiving incorrect pay. Our impression is that there is the potential for the programme to operate to monitor the 48-hour working week, national minimum wage and also to ensure that individuals sponsored on a student visa did not exceed the maximum permitted number of working hours for their Visa. Mr Kerai referred to it as CRM Customer Relationship Management software.[35]We think it probable that we have not been shown the complete original Zenotti diary as it was when it was used by the three employees during the claimant’s employment. The question is what can we infer from that. We find that neither the diary nor the rota (RB page 110 onwards) would necessarily be updated consistently or accurately to reflect last-minute changes. For example RB page 249 is contemporaneous evidence that the claimant stepped in to massage members of the public on 27 July and yet that is not reflected in the Zenotti diary for 27 July. Last-minute changes that were managed by WhatsApp messages do not appear to have been inputted into the CRM schedule. So far as we are aware the claimant nevertheless ended up being paid at the right rate for the work she had carried out. If the diary genuinely was linked to pay then it is hard to understand why the claimant does not appear in it at all as a therapist.[36]The rota was produced by the respondent to illustrate what they described as a limited number of occasions on which the claimant - who worked part-time - was in the centre at the same time as Mr Sharma. They argued this supported their case that the number of massages was in fact unremarkably low. In cross-examination when the claimant was asked about the opportunity given the hours and days worked and other activities offsite and leave the totality of her evidence was that the number of massages she had given to Mr Sharma during her employment was between five and 10. Mr Sharma said he had asked the claimant to massagehim for training purposes only and this had happened on three or four occasions, “maybe five”.[37]Taking into account all of the conflicting evidence and reminding ourselves that we need to consider whether the claimant has proved the acts took place, on the balance of probabilities these are the panel’s unanimous findings about the number of occasions when Mr Sharma requested or told the claimant to carry out a massage on him. There is some supporting documentary evidence to support there being a couple of massages and a couple of requests taking place early in August. Such objective evidence as there is tends to support the number of massages that Mr Sharma recollected rather than the number of massages the claimant alleged. We find there were no more than five such occasions during the five weeks when the claimant was employed before Mr Sharma took annual leave on 21 August 2023.[38]The respondent has not provided a satisfactory explanation for the lack of documentation of this alleged training programme. There is sufficient documentary evidence for the panel to be satisfied that the claimant was reasonably asked to undergo further training but no documentary evidence of any assessment against which to judge if she improved, to judge whether the shortcomings noted in the training assessment were being worked on or records kept from which it could be judged if the claimant had passed what was expected of her for her probation in relation to her stand in massage therapist role. This lack of rigour and formality does cause concern but, on balance, we have accepted that there were legitimate reasons to ask for a massage in general.[39]This is not a complete answer to the issues because the tribunal needs to consider whether Mr Sharma additionally requested massages in circumstances which amounted to sex related harassment or behaved improperly given the opportunity of being in the massage room with the claimant to do so. Although there was a genuine and reasonable reason to ask the claimant to provide massages, an alternative way of looking at the claimant’s allegations is that she states that Mr Sharma took advantage of the situation to carry out a legitimate task of training the claimant in a way which amounted to sex related harassment or to commit sexual harassment.[40]As we stated above, we accept there is supporting evidence that the claimant was asked to and provided one massage on 4 August which we take to be a 50 minute massage. Then RB page 251 includes the text that shows an 80 minute massage was planned to take place on 6 August 2023. The upgrades that a massage therapist was expected to try to sell included hot stones and scalp massage. We can accept that it was important to practice keeping to time. The upselling was also more of a sales technique encouraging a massage therapist to balance the therapeutic nature of the interaction with a more pressured sales environment. It would be necessary for the business model to massage the client within the set time to keep to an accurate timetable so that the Centre used the room and therapist’s time efficiently. This principle is consistent with Mr Sharma booking first a 50 minute massage with the claimant and then an 80 minute massage. The two would require different time management. We accept that there was a logical business reason why the claimant should have to practice both the 50 minute and the 80 minute massage.[41]This 80 minute massage did not take place as Mr Sharma did not attend for it (see WhatsApp RB page 251 timed at 18:59) for some reason. WhatsApp messages on 7 & 8 August 2023 (RB page 113) show Mr Sharma attempting to arrange another massage, probably in a training context: “no probs see you Wednesday , I need to rebook us to spend some more time together [07/08/2023, 08:24:55] Pav.: Let me know what your weeks like [08/08/2023, 11:18:13] Pav.: Morning you, I’m doing some training today - are you free? X”[42]The claimant declines as she is out for the day. Presumably this was intended to be a non-working day. Mr Sharma replies “no probs”.[43]However there are occasions when Mr Sharma raises in the WhatsApp messages the topic of massage other than for the purposes of the claimant’s training needs. On 8 August at 14:07 he says he needs another massage “both my legs are tight I think” and the claimant provides information about rehydration. He replies “I just need to drink more water and stretch I think”.[44]For balance, it is also important to record that the WhatsApp message involve unremarkable conversations about attending gym sessions and health foods and supplements. The claimant sent photographs of herself in the gym and in the spa. She asked him if he has spare time after work to go to the gym with her (RB page 253). There is an exchange on 9 August 2023 which it is relevant to quote in full. “09/08/2023, 16:05:02] Pav.: Because I go away in like 2 weeks I’ve ramped it up, since you saw me last I’ve leaned up a fair bit - my 6 pack is slowly coming back! You back now then? No probs I’ll get some healthy ones! I did try get them last time but the guys always go and buy more bad stuƯ hahaha x [09/08/2023, 16:05:39] ~Victoria: 뇤 뇪 뇫 뇥 뇦 뇯 뇰 bad habits die hard!! [09/08/2023, 16:05:54] ~Victoria: 6 pack very nice 뇤 눎 눐 눑 눒 눏 [09/08/2023, 16:09:36] Pav.: I have to many bad habits 뇤 뇪 뇫 뇥 뇦 뇯 뇰 I’m a snacker that what always gets meeeee [09/08/2023, 16:09:51] Pav.: Trying 뇤 뇪 뇫 뇥 뇦 뇯 뇰 not that I’m trying to impressss [09/08/2023, 16:29:53] ~Victoria: You’re Definitely going for it. We all like to impress. Hence why I’m returning to the gym lol Need my bubble butt back. [09/08/2023, 16:34:51] Pav.: Don’t be silly you don’t look like you need to return to the gym! But do like a bubble butt 뇤 뇪 뇫 뇥 뇦 뇯 뇰 [09/08/2023, 16:34:56] Pav.: Hip thrusts”[45]On 16 August 2023, Mr Sharma (RB page 258) sends a message to the effect that he is trying to plan the rest of my week “with training for the guys – did you get your nails off? I also want to just run through everything before I go away next with you” and the claimant replies that she has not had time.[46]On 17 August there is an exchange when the claimant repeatedly asks what she will be expected to do today and refers to changes in plan or in the day she is not expected to work disrupting her entire day.[47]The claimant’s evidence is that she raised with Mr Graham Buck that she was uncomfortable doing the massages. Her witness statement (paragraph 13) appears to date her conversation with the Assistant Manager to after the challenge day that she described in paragraph 12. She referred to the challenge day incident in her email to Mr Pindoria (RB page 175) where she talks about an occasion where she had one more client to convert to hit her three sales for the day target and was unhappy that she was directed to leave the front desk to carry out an 80 minute massage. This has striking similarities to the incident described in claimant’s statement para. 12 and the claimant opens paragraph 13 “after what had happened, above, I raised my concerns more formally with my Assistant Manager”.[48]The claimant’s oral evidence was that certain passages in the WhatsApp messages show that she was increasingly uncomfortable about having to provide massages because she felt personally uncomfortable and that the requests were intrusive and not justified by any proper purpose.[49]NLM Gunnell and Employment Judge George accept the claimant’s explanation that, in context, certain WhatsApp messages demonstrate that she was trying to avoid giving massages to Mr Sharma. They accept that in describing that time (around 16 August), she became emotional – and that appeared to be genuine. They also accept that, by the time of those messages, she was trying to avoid providing him with a massage (specifically RB page 258 on 16 August 2023 about whether the claimant had removed her nails). However, NLM Gunnell and Judge George do not agree on why the claimant was trying to avoid giving a massage at that time. They do not agree on what can be inferred from her attempted avoidance in the context of all the other evidence.[50]NLM Vaghela does not think, on balance, that the messages can support the inference that the claimant was trying to avoid giving massages to Mr Sharma. He finds that the messages show a two-way issue where the boundary between manager and subordinate was blurred by both parties. From the claimant’s side this involved her saying she would get Mr Sharma onto a guest list, referring to gym sessions, the reference to getting her “bubble butt” back and unsolicited photos of her in the gym and jacuzzi.[51]The Panel unanimously accept that there are elements of the texts which suggest that Mr Sharma was overly familiar with his subordinate. This is not only based on the words of the messages but on the nature of the conversation that they evidence. The hierarchical boundaries that one might expect between the two, given their respective positions in the workplace, do not appear to be there. That might be the nature of the salon-type environment but it is our observation nevertheless.[52]NLM Gunnell infers that the claimant genuinely did not understand what the purpose of the massages was. She thinks that comments such as “I think I need to get another massage” (RB page 252) blur the lines between a line manager and a colleague or workmate in a way that is unhelpful in relation to an activity that invades personal space in the way that a massage does. She accepts that the claimant was trying to avoid giving a massage because of overly familiar conduct by Mr Sharma.[53]NLM Vaghela and Judge George do not accept that, set against other evidence in the case, it was overly familiar conduct which caused the claimant’s attempted avoidance. They do not think it right as a general proposition to infer from any unhappiness on the part of the claimant that objectively objectionable behaviour from Mr Sharma occurred. Evidence of the specific incidents has to be considered on a case by case basis.[54]Nevertheless, the panel unanimously find that there are elements in the WhatsApp messages which indicate Mr Sharma overstepping the mark of professionalism and indicate him requesting a massage in connection with what he himself would have got out of it not the professional review element which is now emphasised by the respondent.[55]NLM Vaghela and Judge George (for reasons which are detailed below) do not find there is evidence from which it is right to infer that that personal interest was anything more than a desire to have a massage because his muscles were aching. They consider that a literal reading of the texts is fair and evidence based. LOI 50.d) – the lift to work[56]The claimant’s car broke down and Mr Sharma gave her a lift on 19 August 2023. An exchange of WhatsApp messages (RB page 261) show that the previous evening Mr Sharma offered to collect her and she provided him with her postcode. The following day, 20 August 2023, the claimant still had no car to take to work. Her evidence was that felt uncomfortable receiving a lift from Mr Sharma and having accepted it, she then made alternative arrangements with another work colleague and declined it. That much is also borne out by the WhatsApp messages on RB page 261. Did the claimant raise concerns with Mr Graham Buck?[57]In his statement (CB1 page 39 para.2) Mr Graham Buck states that he became aware in late July 2023 to September 2023 that the claimant was delivering handson massage training sessions to Mr Sharma. Although he states that it was not part of a structure training programme, his evidence was that they were massage training sessions so his evidence is not directly contradictory to Mr Sharma’s on that point.[58]The claimant’s evidence was that she raised it with Mr Graham Buck between the end of July and August and he had said that he would speak to Mr Sharma. Mr Graham Buck’s oral evidence that she had approached him twice: in late July and late August when she was more distressed. The panel unanimously found Mr Graham Buck to give a credible account of his own actions when he stated that he did speak to Mr Sharma and then to HR in High Wycombe on the later occasions. The panel also unanimously accepts that, when he contact HR, he was told to invite the claimant to put her concerns in writing and that he did so. She did not put her concerns in writing before her resignation.[59]Like the majority, NLM Gunnell prefers the evidence of Mr Graham Buck over that of Mr Sharma about whether he approached Mr Sharma about the claimant’s concerns. However, she also considers that this damages Mr Sharma’s credibility generally whereas NLM Vaghela and Judge George consider that, in the present case, there are so many occasions where the several witnesses have overstated an account or been inconsistent in their explanations that it is not safe to regard credibility as generally damaged by one adverse finding.[60]Mr Sharma started a period of annual leave on 21 August 2023 and returned on 29 August 2023. Although the claimant states in her statement paragraph 12 that, after his return, Mr Sharma again asked for massages, she accepted that none took place before her last working day for the respondent. Neither is there documentary evidence that any massages took place in that period. Her last working day was Saturday 2 September 2023 when she worked all day at an event at the St George’s Centre. The claimant’s resignation[61]The claimant phoned in sick on 3 September 2023 and informed Mr Sharma that she had caught a bug from her daughter. She was signed off sick for “burnout” on 4 September 2023 (CB2 page 3). She emailed Mr Sharma on 6 September 2023 (RB page 133) giving the reasons for sickness absence of stress and anxiety.[62]During her sickness absence, on 7 September 2023, the claimant mailed Mr Sharma asking to book holiday during the upcoming school half-term holiday (RB page 139). The claimant was still in her probationary period but, nevertheless, was entitled to book annual leave. Mr Sharma forwarded that to Mr Kerai with the comment “not really sure what the thought process is here ..”. Mr Kerai replied (RB page 146) “Suggest build up a case for ending probation on return.”[63]The GP notes (RB page 221) record the claimant attending her GP and receiving Citalopram which had been prescribed the previous Monday. Mr Sharma wrote to the claimant on 18 September 2023 to invite her to a welfare meeting 2 days later (RB page 158 – 159). This did not take place.[64]The claimant was issued with a further sick note on 2 October 2023 following a telephone consultation to last until 16 October 2023. The reason for sickness is said to be “stress at work” (CB2 page 15). The claimant resigned the same day with effect on 16 October 2023 (CB2 page 18). The reason given in that letter is “due to unforeseen ill health, it has become evident that I can no longer fulfil the task set out in the job description.” See RB page 167 - 168.[65]The claimant received her terminal payment from which £400 had been deducted in respect of the cost of the training course she undertook between 3 and 7 July 2023. The exchange of emails at RB page 173 shows that Mr Sharma informed Mr Kerai that the claimant needed to be paid SSP to 16 October but owed the costs of her Classic massage training. The director replied that Mr Sharma should deduct the training costs and inform the claimant that it would be repaid to her if she returned to their employment. This led to a letter from the claimant to one of the other directors (RB page 175) saying she was disappointed that the training fee had been deducted because, in effect, she considered she had been forced to resign because she was in an “untenable situation.”[66]This was the first occasion on which the claimant set out her complaints about Mr Sharma in writing. She stated that he had made her massage him on several occasions, referred to her success in converting clients to members and to the impact on her ability to sell when she was unexpectedly taken away from her sales position to massage him. She described that as “abusing his position of power”. She asked Mr Pindoria to consult with his wife whom she described as a witness of one such occasion which is the subject of LOI 50.f). She subsequently gave Mr Pindoria permission to talk to the other directors in an email on RB page 179. Neither of those expressly refer to sexual harassment and the second states “my only concern was not being able to reach the increased sales targets set by Pav” because she would be at a particular event.[67]There was then an exchange of text messages between the claimant and Mr Kerai (Mr Pindoria appears to have had Covid) on RB pages 236 to 237.a. On 16 November 2023, Mr Kerai texted the claimant saying “a lot of shift is suppose to happen tomorrow based on the contents of your letter”b. On 18 November 2023 Mr Kerai sent a further text to the claimant (RB page 237) and told her that the respondent had dismissed Mr Sharma and that they would revert to her later. The claimant clearly inferred from that that her email to Mr Pindoria and subsequent email on 2 November 2023 had informed the respondent of matters that were the cause of Mr Sharma’s dismissal. They refute this as does Mr Sharma. The question for the tribunal is not only whether the respondent’s witnesses are credible on this point but whether to draw the inference from any lack of credibility and the fact of Mr Sharma’s dismissal that at the time the respondent accepted that Mr Sharma had behaved inappropriately toward the claimant in the way she now alleges.c. There are further exchanges without any particular developments and then Mr Graham Buck contacted the claimant and asked her to return to work. She texted Mr Kerai on 21 November 2023 to confirm that she was happy to do so as soon as possible and asks for a draft of the contract. This exchange (RB p.239, 241 to 242) includes the first use by the claimant of the words “sexual harassment” and the information that, if things cannot be sorted out amicably her circumstances mean that she will have to take legal steps (see RB page 239). The first use by the claimant of the words sexual harassment is in her mail of 21 November 2023 and Mr Kerai asked her (RB page 241) where she had made such an accusation previously. Her responses appear to continue to chase for the replacement contract of employment.d. A draft contract was sent to the claimant by the respondent on 24 November 2023.e. On 27 November 2023, the claimant wrote to the respondent (RB page 194) seeking compensation of £35,000 in addition to reinstatement.[68]The attempts to negotiate a return to employment faltered and petered out. The claimant presented a claim to the employment tribunal. LOI 50.b) and c)[69]The panel’s assessment of some of the evidence around what happened on particular occasions, whether and why the claimant was concerned or complained and about the frequency of the massages she gave Mr Sharma is not unanimous. It is necessary for us to make findings about whether particular events occurred as alleged by the claimant. Specifically, the panel needs to decide whether the alleged acts of sex related harassment or sexual harassment set out in LOI 50.a) to f) occurred. Having set out our findings about the relationship and chronology as a whole, we return to make findings on those particular allegations in that context.[70]There are specific allegations (LOI 50.b) and c)) that lewd, sexist or suggestive comments were made on four occasions by Mr Sharma. Our findings on those depend on our respective views of the credibility of the claimant and Mr Sharma. It is only possible to do this taking a holistic view of the evidence as a whole. We also need to consider the respondent’s evidence about the reasons for Mr Sharma’s dismissal and whether any adverse inferences can be drawn from that.[71]The panel consider it probable that the respondent had concerns about Mr Sharma’s performance in his role as manager of a newly opened Centre. We unanimously accept that there had been a complaint or concern expressed by the founder of the business about the performance of the Centre. It had opened in February 2023 and had therefore been operating for eight months. It is plausible and we accept that a crunch time for the business was approaching and there was a risk of it running out of cash if it did not start to deliver.[72]The juxtaposition of Mr Kerai’s texts using the phrases “a lot of shift is supposed to happen tomorrow based on the contents of your letter” and that Mr Sharma had been “sacked” and “we could not dismiss him for gross misconduct, but a commercial dismissal” (RB page 185) leads to the conclusion that, contrary to the respondent’s now assertion, the claimant’s letter was one of the things the directors had in mind and did have some bearing on the respondent’s decision to dismiss Mr Sharma.[73]Judge George and Ms Gunnell are satisfied that the decision to dismiss was precipitated by the claimant’s letter even if the respondent was thinking about it before her letter arrived.[74]Mr Vaghela does not make as strong a connection between the claimant’s letter and dismissal but accepts it was a contributing factor.[75]However the Panel unanimously finds that the fact of dismissal is neutral as to whether or not Mr Sharma was scheduling massages legitimately in his role as Centre Manager to ensure the therapists are practised in their technique and able to keep within the allocated time for the product as well as to deal with action points raised in the claimant’s initial training. The fact of dismissal does not lead to an inference that the respondent accepted that Mr Sharma had committed sexual harassment. That is because the claimant did not expressly raise an allegation of sexual harassment until after she knew that Mr Sharma was dismissed.[76]Her letter of complaint (RB page 175) refers to personal gain not personal gratification and complains that she is being taken away from her core activity of selling – she refers to it “negatively effecting my sales conversions all for his own personal gain”. This would potentially reduce profit for the centre and her own income. The reasonable employer reading the emails dated 31 October and 2 November would understand that the claimant considered herself to have been forced out by Mr Sharma’s conduct but would reasonably not read them as complaints of sexual harassment. The conclusion the claimant draws that the respondent at the time accepted that Mr Sharma had behaved inappropriately towards her is not a conclusion the Tribunal draws. The fact that Mr Sharma was dismissed is not evidence from which wrongdoing within the scope of the litigation can be inferred.[77]The majority (Judge George and NLM Vaghela) also find that the absence of any complaint about sexual harassment from the first written complaint to Mr Pindoria about Mr Sharma’s actions is very telling about what the claimant’s priorities were.[78]NLM Vaghela’s view is that what was causing the claimant anxiety when she was asked to massage Mr Sharma was that practising massages took time away from sales and selling when she had sales targets to meet. This is evidenced from such contemporaneous written complaints as there are (which postdate her resignation). Similarly, she expresses dissatisfaction in the WhatsApp messages about being sent to events because when she was at events there was less opportunity for her to sell things. In her evidence she emphasised that she was a single parent with bills to pay and agreed that the financial side was important to her. She referenced her sales target in the communications to the respondent and her concern about being taken away from those targets was a more consistently expressed concern at the time than the issue she is raising now.[79]Mr Vaghelaa. does not accept that the claimant meant gratification when she said gain in the email at RB page 175. Mr Sharma’s text messages to the claimant appears to link one request for a massage and separately a request which can be identified as a training massage. Mr Vaghela infers from the claimant’s first written notification to the respondent that she was unhappy (RB page 175) and from the WhatsApp messages that the claimant thought Mr Sharma was asking for a massage on about 6 August 2023 because he was sore and wanted one. She was unhappy because having to give a massage reduced her opportunity to meet her sales target.b. For him this finding is reinforced by the claimant’s subsequent response to Mr Pindoria when she said (RB page 179) “my only concern was not being able to reach the increased sales targets set by path, as I would be spending the majority of my working hrs at the event.”c. The way the claimant describes Mr Sharma’s threat that if she did not agree to work in the event (our emphasis) Mr Kerai would ask her to leave is, to Mr Vaghela, contrary to the RB page 175 allegation that Mr Sharma said that Mr Kerai would ask her to leave if she did not give him a massage.d. This, for Mr Vaghela, is consistent with the run of text messages between 16 August 2023 at 13.51 RB page 258 to the end of RB page 259 which, to him, show the claimant preoccupied with not having plans disrupted and being irritated with being required to be at an event and not in the Centre.e. What he draws from this is that the claimant did not contemporaneously think that she had been subjected to sexual harassment. He rejects the claimant’s account of the individual acts.[80]NLM Gunnell accepts that, on the face of, it there is no overt reference to the complaints the claimant now brings in the email on RB page 175. However,a. she accepts that what the claimant meant by her statement that when Mr Sharma took her unexpectedly away from her sales position to massage him this was him “abusing his position of power, negatively affecting my sales conversions all for his own personal gain” this in the claimant’s mind covered the motivation she now alleges and therefore the lack of express reference does not damage her credibility. Ms Gunnell accepts that at the time of the letter the claimant thought there was a sexual element to the request for massages and also felt uncomfortable about being expected to massage her manager, which was why she asked Mr Graham Buck specifically whether this was required under her contract. Ms Gunnell accepts that the genuineness of the belief provides some support to Mr Sharma having said something during a massage that discomfited the claimant.b. The claimant forcefully stated that when she sent messages saying “What will I be expected to do today?” on 17 August 2023, she did so because she was experiencing stress and discomfort at last minute requests to deliver a massage, purportedly for her own training at a time when she doubted the legitimacy of the request. Ms Gunnell is mindful that it can be very difficult to talk about sexual harassment and considers that to be a potential explanation for the contrast between the 31 October 2023 email (RB page 175) and the 2 November email where, Ms Gunnell accepts, the claimant appears to back away from the nature of her criticism. Ms Gunnell thinks that this is because the claimant has latched onto something that she thinks is safer and purely professional.[81]Despite our different views on how to interpret that evidence and what inferences it is right to draw from it, the Panel (including Judge George) unanimously consider that the messages sent around 8 August 2023 are hard to reconcile in their wording and tone with someone feeling as aggrieved and under threat as the claimant now describes herself as being at the time. The nature of the messages around 8 August 2023 seem to be that of two people engaged in casual written communication without any backdrop that one of them feels they are being subjected to degrading behaviour or a hostile environment at work.[82]This means that the Panel find that, when the claimant told Mr Graham Buck that she was unhappy at having to massage Mr Sharma, that unhappiness in late July or early August 2023 was to do with it being inefficient and a poor use of her time to massage Mr Sharma when she did not understand why it was necessary.[83]The List of Issues paragraph 50.b) alleges lewd comments were made during massages in August 2023. First it is said that Mr Sharma said that his underwear was Calvin Klein and she was not to get oil on them. Secondly it is said that he complemented his own appearance and said what a good physique he had flexing his muscles. Thirdly it is said that on one occasion he told the claimant that he needed to adjust himself and when she asked him if she needed to adjust the sheets he said no, he needed to tuck himself down as he had had an erection.[84]Given the Panel’s findings about the purpose for which massages were actually undertaken - namely that they were part of a training for the claimant, we accept that there would be uncontroversial reasons for Mr Sharma to caution the claimant against getting oil on his clothing when counselling her about best practice. We are not satisfied that even if there was a reference to underwear in that setting it was a lewd or sexual one.[85]In List of Issues paragraph 50.c) the claimant alleges that in August 2023 Mr Sharma expressed his attraction to women with certain female attributes saying “I like girls, short, with blue eyes and big bust.” The claimant was cross examined and it was suggested to her that this allegation was untrue. In her paragraph 14 she said that she took those words to be a reference to her own physical attributes and regarded the comments to be “sexist, degrading and abhorrent”.[86]In oral evidence, she explained the context in which the comment was made. That context was not something the respondent had previously been aware of. She stated that Mr Sharma had spoken about his girlfriend and she had asked him whether his girlfriend was Asian. He had said “no, I like girls with dark hair blue eyes and big bust” which she said described her own physical attributes.[87]Mr Sharma, in his oral evidence, accepted that there had been a mutual conversation about what someone’s type was and described his relationship with the claimant as a “social relationship” in the sense that they had openly discussed what his type was, where his girlfriend was from, “in terms of their height, their values, their behaviours”.[88]Ms Gunnell and Judge George considered Mr Sharma to be somewhat evasive in the way he handled questions about this exchange. They think it probable that the claimant’s account is accurate. Ms Gunnell and Judge George accepted that, in the context of the claimant asking whether the Mr Sharma had an Asian girlfriend, he used that phrase which was a description that fitted the claimant. They accept that the claimant was bound to think when Mr Sharma said that that he was attempting to flirt with her, the reasonable reaction of a colleague would be to think “this person is coming on to me”.[89]Mr Vaghela found Mr Sharma in general to be a credible witness who gave firm account of events in a straightforward manner. He agrees, however, that his evidence on this specific point was less firm, and on the balance of probabilities finds it more likely than not that Mr Sharma made reference to physical characteristics that resemble the claimant. He accepts that the context was a topic of conversation about what was their preference or “type”. Given the nature of the conversation taking place, in which the claimant asked if Mr Sharma’s girlfriend was Asian, Mr Vaghela does not accept that the claimant took offense at the time to the extent that she now claims.[90]As to the second specific allegations within LOI 50.b), that of Mr Sharma complimenting his own appearance and saying what a good physique he had and flexing his muscles,a. the WhatsApp messages show a degree of familiarity and, superficially at least, that the claimant and Mr Sharma were comfortable talking about the effects of going to the gym on parts of their body (RB pages 252, 253, 265 and 268).b. There is therefore a superficial plausibility that similar comments were made by Mr Sharma verbally but the claimant has not shown on the balance of probabilities that he did. Her evidence on this allegation was too vague to make specific findings about incidents.c. Furthermore, it was not put to Mr Sharma that there were specific occasions when he orally commented on his own body. The claimant stated orally that they were and that he commented on his body all the time but details of when and where this happened were not evidenced and Mr Sharma was not asked about specific occasions when it was said to have happened.d. NLM Gunnell, in particular, found that, had there been clear evidence that specific comments had been made in the massage setting then the particular nature that being face to face with one person in state of undress would have been an important part of the context. However, the claimant’s evidence about what actual conduct led to the allegation in LOI 50.b)2) was imprecise.e. Taking all that into account, the unanimous finding of the panel is that the claimant has not shown that Mr Sharma made any comments about his physique other than those which are in the documentary evidence.[91]The next allegation in LOI 50.b)3) is that on one occasion during a massage in August 2023, when the claimant asked if she needed to adjust the sheets, Mr Sharma told her that he needed to tuck himself down as he had had an erection.a. By a majority (Judge George and Mr Vaghela) we find that the claimant has not shown that this incident occurred. The reasons why the majority rejects this allegation are i. Mr Vaghela gives weight to the claimant’s vagueness about times and details of these event in general; had something so egregious occurred that she left the room in the middle of a massage as she now claims that would have been memorable. There is no reference to this event in the evidence, or the WhatsApp messages, which Mr Vaghela finds unusual given the weight now being applied to it by the claimant. He considers that the fact she made this allegation (which in his view is unlikely to have occurred) has damaged her credibility about alleged lewd, sexist or suggestive comments generally. ii. Judge George gives weight to the absence of this incident in the claimant’s letter of complaint of 31 October and also its absence from the claim form. It stands out within the specific allegations as one of two which, if made out, are overtly sexual harassment or related to sex which makes it surprising that it was not included in the earlier complaints. There did not appear to be a satisfactory explanation for that. Judge George also gives weight to the Tribunal’s unanimous findings that, contrary to the claimant’s primary case, there were legitimate reasons connected with the claimant’s training needs for Mr Sharma to request her to deliver a massage on him. This is something the claimant is apparently unable to accept. Although Judge George accepts that the claimant is genuinely extremely upset in the retelling of events, she finds that the claimant’s version is viewed through the emotion of how she feels and therefore she is less reliable than Mr Sharma on this point.b. The minority, NLM Gunnell, accepts the claimant’s evidence and finds that Mr Sharma probably did have and refer to an erection during a massage by the claimant. She considered the level of detail provided by the claimant to be convincing and too extensive for the incident to have been made up. There is an explanation for the claimant’s original confusion because the phrase “tucking in” was connected with draping - a method of arranging towels during a massage for modesty. She is also influenced by the WhatsApp messages where Mr Sharma asked for massages on at least one occasion for reasons that were not connected with the claimant’s training but were for his own relief of muscle tension. His willingness to depart from an appropriately managerial tone causes Ms Gunnell to find him less credible on this point. She accepts the claimant’s evidence. LOI 50.f)[92]There is a particular allegation in LOI 50.f) that on one occasion Mr Sharma threatened the claimant with the suggestion that she would lose her job if she did not provide him with massages. This is probably the occasion the claimant refers to on RB page 175. In that email sent on 31 October 2023 (probably something approaching three months after the incident), the claimant’s account was that there was a particular target set by the founder and, when she needed to convert one more client to hit it, Mr Sharma told her she was to deliver an 80 minute massage to him. When she objected, he insisted that, if she did not do as he asked then Mr Kerai would not hesitate to get rid of her.[93]The Panel recall the exchange of emails at RB page 139 (also at CB2 page 11). In them, Mr Kerai reacted to the claimant’s request for annual leave to be booked on a day when she was absent due to ill health “suggest build up a case for ending probation on return”. The question asked by Mr Sharma suggests to us that that he would see Mr Kerai as an individual who would potentially use an opportunity to dismiss an employee if he regarded them unsatisfactory for some reason. Mr Kerai would no doubt have said to Mr Sharma that the business has to be performing. There was probably pressure on him, given his and Mr Kerai’s evidence that the respondent was concerned about his performance. It is entirely believable that in general the message was conveyed to claimant that she needed to perform or she would not be confirmed in the role.[94]However the threat that if she didn’t massage Mr Sharma she would lose her job is rather different. That is specifically denied by Mr Sharma in his para.16.[95]NLM Vaghela does not accept that the threat was made in connection with providing the massage to Mr Sharma. In his findings, he places weight on the way the claimant first described the actions of Mr Sharma in her emails to Mr Pindoria on 31 October 2023 and 2 November 2023 (RB pages 175 and 179) There, the claimant claims that Mr Sharma increased her sales targets and then placed her at weekend events making it difficult to achieve then and then took her from the front desk for a massage and “[Pav] stated that if I did not do as he asked Ramesh would not think twice about getting rid of me”. In her 2 November email to Mr Pindoria (RB page 179), the claimant stated “My only concern was not being able to reach the increased targets set by Pav, as I would be spending the majority of my working hours at the event. Which I did stress to Pav was unrealistic. At that point he advised me that if I didn’t agree then Ramesh would ask me to leave”. Mr Vaghela finds that this provides clarification, from the claimant’s perspective, as to the context and reason that Mr Sharma made his statement and it was not related to her refusal to provide Mr Sharma with a massage but rather her refusal to attend the event. The need to deliver sales was paramount so it made no sense to threaten the claimant with dismissal for not carrying out a training massage. Mr Vaghela’s conclusion is that the fact that the Claimant now seeks to connect the threat of dismissal with her refusals to give Mr Sharma a massage is contrary to the evidence, and further diminishes her credibility.[96]NLM Gunnel and Judge George considers that it is entirely consistent with the impression given by the claimant, Mr Sharma and Mr Graham Buck of Mr Kerai as unapproachable that the threat that he would be unhappy would be used as stick or motivator for employees. Their findings differs from that of Mr Vaghela in that they accept that Mr Sharma did not only use the threat of Mr Kerai’s reaction to enforce his requirement that the claimant attend events. NLM Gunnell and Judge George do not think the claimant would have identified Bavna (Mr Pindoria’s wife) as a witness had the allegation as worded in the 31 October 2023 email not been true. The claimant obviously felt that Bavna was going to be able to support her. The fact that Bavna was a potential witness was why the claimant chose to go to that director rather that any of the others. They read that original allegation as saying Mr Sharma enforced the requirement for the claimant to massage him with a threat of reporting her to Mr Kerai.[97]The finding of the majority (Judge George and NLM Gunnell) is that on date probably in early August 2023, sometime after the cancelled 80 mins massage due to have been on 6 August and potentially before the 17 August messages when the claimant asked repeatedly what she was doing that day) Mr Sharma insisted that the claimant give him a 80 minute training massage and said that that Mr Kerai would not think twice about getting rid of her if she refused. Law applicable to the issues Unauthorised deduction from wages[98]Section 13 Employment Rights Act 1996 provides as follows: 13.— Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision” , in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.[99]Section 27 defines wages to include sums payable to the worker in connection with his employment whether “under the contract or otherwise” (s.27(1)(a)). Harassment[100]It is unlawful for an employer to harass an employee (see section 40(1) of the EQA). The definition of harassment is contained in section 26 of the Act and, so far as relevant, provides as follows: “(1) A person(a) (A) harasses another(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) A also harasses B if – (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(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.”[101]What is and what is not harassment is extremely fact sensitive. So, in the race relations complaint of Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336 EAT at paragraph 22, Underhill P (as he was then) said: “We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any oƯence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially oƯensive comments or conduct (…), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”[102]The importance of giving full weight to the words of the section when deciding whether the claimant’s dignity was violated or whether a hostile, degrading, humiliating or offensive environment was created for him was reinforced in Grant v HM Land Registry & EHRC [2011] IRLR 748 CA. Elias LJ said, at paragraph 47: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”[103]Furthermore, in Weeks v Newham College of Further Education [2012] EqLR 788 EAT, Langstaff P said: “17....Thus, although we would entirely accept that a single act or a single passage of actions may be so significant that its effect is to create the proscribed environment, we also must recognise that it does not follow that in every case that a single act is in itself necessarily sufficient and requires such a finding. ... 21. However, it must be remembered that the word is ‘environment’. An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staffroom concerned.”[104]In Pemberton v Inwood [2018] EWCA Civ 564; [2018] ICR 1291, Underhill LJ set out guidance on the relevant approach to a claim under s.26 EQA as follows [at para 88 which is at the top of page 1324 in the ICR version of the case report]: “In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.”[105]For guidance on what “related to” means in this context, we turn to Bakkali v Greater Manchester Buses (south) Ltd [2018] ICR 1481 EAT paragraph 31 “Conduct can be “related to” a relevant characteristic even if it is not “because of” that characteristic. It is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant. However, “related to” such a characteristic includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader inquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour. As Mr Ciumei submitted, “the mental processes” of the alleged harasser will be relevant to the question of whether the conduct complained of was related to a protected characteristic of the claimant. It was said that without such evidence the tribunal should have found the complaint of harassment established. However such evidence from the alleged perpetrator is not essential to the determination of the issue. A tribunal will determine the complaint on the material before it including evidence of the context in which the conduct complained of took place.” Time Limits[106]Section 123 EQA provides that, subject to the effect on time limits of early conciliation, proceedings on a complaint within Part 5 of the EQA (which relates to employment) 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.”[107]The discretion in s.123(2) to extend time is a broad one but it should be remembered that time limits are strict and are meant to be adhered to. The burden is on the claimant to persuade the Tribunal that the discretion should be extended in her favour: Robertson v Bexley Community Services: [2003] I.R.L.R. 34 CA. There is no restriction on the matters which may be taken into account by the tribunal in the exercise of that discretion and relevant considerations can include the reason why proceedings may not have been brought in time and whether a fair trial is still possible. The tribunal should also consider the balance of hardship, in other words, what prejudice would be suffered by the parties respectively should the extension be granted or refused?[108]In British Coal Corporation v Keeble [1997] IRLR 336 the EAT advised that tribunals should consider, in particular, the following factors:a. the length of and reasons for the delay;b. the extent to which the cogency of the evidence is likely to be affected by the delay;c. the extent to which the party sued had cooperated with any requests for information;d. the promptness with which the claimant had acted once he or she had known of the facts giving rise to the cause of action; ande. the steps taken by the plaintiff to obtain appropriate professional advice once he or she had known of the possibility of taking action.[109]This was reiterated more recently by the Court of Appeal in Southwark London Borough Council v Afolabi [2003] I.R.L.R. 220 CA. However, the factors to be taken into account depend upon the facts of a particular case and should not be considered mechanistically when exercising what is a broad general discretion: Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23, CA.. It is not necessary that the Tribunal should be satisfied that there is a good reason for the delay before finding that it is just and equitable to extend time although the explanation will always be relevant: Abertawe Bro Morgannwg University v Morgan [2018] I.C.R. 1194 CA. Furthermore, one of the most significant factors to be taken into account when deciding whether to set aside the time limit is whether a fair trial of the issue is still possible (Director of Public Prosecutions v Marshall [1998] ICR 518). In Baynton v South West Trains Ltd [2005] ICR 1730 EAT, it was observed that a tribunal will err if, when refusing to exercise its discretion to extend time, it fails to recognise the absence of any real prejudice to an employer. Conclusions on the List of Issues[110]We now set out our conclusions on the issues, applying the law as set out above to the facts which we have found. We do not repeat all of the facts here since that would add unnecessarily to the length of the judgment, but we have them all in mind in reaching those conclusions. Inevitably, where the individual Panel members have differed on their findings of fact, that has affected the conclusions they draw from those facts on the issues. Harassment[111]We therefore consider whether our findings on the specific allegations in the List of Issues paragraph 50 meet the statutory test for sex related harassment or sexual harassment .[112]At paragraph 50.a) it is alleged that in July and August 2023 Mr Sharma insisted the claimant provide him with massages in a private secluded room without CCTV, would sometimes ask for the massages by text and would sometimes take her off the Sales Desk and put her down as “training”.[113]The unanimous view of the Panel is that it was probably made clear to the claimant that she was required to carry out massages but that there was a training need that caused Mr Sharma to require it. We have found that there were no more than five occasions when the claimant provided Mr Sharma with a massage during the five to six weeks when they were both working in the Centre (excluding Mr Sharma’s holiday). Given that the claimant was only working 20 hours a week and was trying to fulfil a sales role we can appreciate that she perceived this as being too frequent because proportionately more of her time was spent providing massages during this period.[114]There are elements in the WhatsApp messages which indicate Mr Sharma overstepping the mark of professionalism and indicate him requesting a massage because of what he himself would have got out of it and not for the professional review reason which is now emphasised by the respondent. What one might expect from a professionally worded text making such an appointment if it were consistent with his case that the claimant was undergoing a structured training programme would be a straightforward message such as “I’d like to book some time for you to demonstrate a Swedish massage” or “to demonstrate a 50 minute massage” or an “80 minute massage”.[115]Although it is accurate that the massages took place in a private secluded room without CCTV we do not regard that as being at all relevant and certainly not related to sex. Those are standard arrangements for a room in which massages are delivered.[116]In summary, the underlying factual allegation in List of Issues 50.a) is made out in that sometimes Mr Sharma did ask for massages by text and both he and Mr Graham Buck put these down in the diary as training. The Zenotti Diary we have been shown is inaccurate or incomplete. However the claimant has only shown a maximum of five occasions in which this happened and the Tribunal accept that there was a genuine business reason for the claimant to be asked to provide massages connected with her training. When the massages were put down as training that was because that was the purpose of the booked massage.[117]Was that unwanted conduct? The claimant says initially she accepted that this was company policy (see her statement paragraph 8). At that stage when she accepted that it was policy, the requests cannot be regarded as being unwanted by her. At what stage, on her case, did the requests become unwanted, if at all?[118]According to Mr Graham Buck, she first approached him to ask if it was standard practice around the end of July. His evidence and that of the claimant about their conversations was broad and vague which means it is not possible to be precise about when she raised her unhappiness with him or in what terms.[119]However the panel finds that it is the later texts from the second week in August where the language used by Mr Sharma about massages the claimant gave him becomes a mixture of things that are training related (the request for the 80 minute massage on 11 August) and to do with Mr Sharma’s own needs (the request on 8 August). The Panel accepts that it reached a point where the claimant wasn’t happy at receiving requests and they became unwanted which was probably around the second week in August.[120]If necessary, Employment Judge George and Mr Vaghela would date this between 8 August and 16 August. This is because the exchange on 9 August 2023 (RB page 253) shows Mr Sharma discussing saying that his “six pack” is coming back which the claimant describes as “very nice”. There is some reference to snacking and not trying to impress before the claimant says that she is returning to the gym “need my bubble butt back”. These exchanges are inconsistent with the claimant genuinely feeling at the time the level of distress about Mr Sharma’s conduct that she now professes.[121]However, there is an exchange on 16 August (RB page 259) which Judge George and Ms Gunnell accept is consistent with and explained by the claimant’s oral evidence that she had had acrylic nails applied in order to avoid giving a massage because one could not provide a massage while wearing such nails.[122]Mr Vaghela finds that the reason why the requests for massages became unwanted was the adverse impact time spent on them had on her ability to achieve her sales targets. (see paras.78 & 79 above).[123]We accept the respondent’s evidence that the Centre Manager’s role did include an element of training therapists by scheduling massages for them to practice including for them to practice timings. Contrary to the claimant’s primary case, the Panel unanimously find that there were valid reasons for Mr Sharma to ask for some massages to train the claimant.[124]The majority (Judge George and NLM Vaghela – the employer side NLM) would dismiss the complaint in LOI 50.a). The request or requirement for the claimant to give massages to the Centre Manager as part of ongoing training or time management is not related to sex in itself. Nor is it sexual conduct because it has not been shown that Mr Sharma had a sexual motivation or that anything occurred during the massages which had a sexual element. The harassment complaint based upon LOI 50.a) fails for that reason. Furthermore, although the claimant did feel pressured by the requests, the majority concludes that it was not reasonable for the requests themselves to have the effect of harassment because there was a valid reason for them. Judge George does not agree with NLM Vaghela’s view that the only reason the claimant regarded the requests for massages as unwanted was the loss of sales earning opportunity. Nevertheless, she does not accept that anything untoward or lewd happened during them or that they had the profound effect on the claimant at the time that she now states. She therefore concludes that it was not reasonable for them to be regarded as having the harassing effect.[125]Ms Gunnell (employee-side NLM) disagrees and would uphold the complaint for the same reasons that she would uphold LOI 50.e) (see paragraph 151 below).[126]Nevertheless, the majority agree that, if the Tribunal had found that Mr Sharma behaved inappropriately as alleged by the claimant while carrying out a task that he was designated to do (training the massage therapists) this that might amount to harassment.[127]LOI 50.b.1). Given the panel’s findings about the purpose for which massages were actually undertaken - namely that they were part of a training for the claimant - we unanimously accept that there would be uncontroversial reasons for Mr Sharma to caution the claimant against getting oil on his clothing when counselling her about best practice. We are not satisfied that even if there was a reference to underwear in that setting it was a lewd or sexual one. The panel is not persuaded that, even if words of that kind were used, they were related to sex.[128]The blurring of lines between professional and non-professional that we have referred to do however appear ultimately to have made the claimant feel uncomfortable. Mr Sharma does not appear to have been alert to the prospect that providing a one-to-one massage to someone in authority in the workplace would itself have the potential to be intimidating and involve the sort of personal contact that one wouldn’t habitually have with someone in authority.[129]LOI 50.b) 2) The Panel concluded that no specific comment was shown to have been made by Mr Sharma about his physique other than those evidenced in the documentary evidence. The panel unanimously conclude that those were not related to sex. See para.44 above for a relevant quotation from the WhatsApp messages. The claimant’s response by WhatsApp at the time is inconsistent with her then being as distraught as she now says. To the extent that her case is that those messages were sex related harassment or sexual harassment, we reject her implied assertion that the messages had the effect of violating her dignity or creating an intimidating hostile, degrading, humiliating or offensive environment for her because that is inconsistent with the way that she responded. The harassment claim based upon this factual allegation fails.[130]As to LOI 50.c), we have found that Mr Sharma probably did say to the claimant “I like girls, short, with blue eyes and big bust.” We consider that the phrase related to sex because it references a woman’s bust and the desirable attributes in a partner; possibly a sexual partner, given that the context was a discussion about girlfriends and boyfriends and who was Mr Sharm’s ‘type’.[131]Judge George and Mr Vaghela consider that, as a response to what the claimant had said, it is not right to infer that Mr Sharma intended the comment to be degrading intimidating or offensive. Ms Gunnell accepts that he probably thought it was flirtatious behaviour although should have appreciated it was inappropriate in his position. The panel unanimously conclude that the comment was unwanted but that Mr Sharma did not intend it to have the harassing effect.[132]The panel unanimously accept that the claimant was offended by the comment and also considered it degrading and intimidating because the physical attributes were her own and because of the respective positions of herself and Mr Sharma in the organisation.[133]We unanimously consider that it was reasonable, in all the circumstances, for that comment to have that effect of producing a degrading, intimidating and offensive environment for the claimant, although probably more within the usual meaning of the word offensive than the other strands of the definition. The relevant circumstances are varied and wide ranging. They include the previous social texting that showed both parties being relatively comfortable in describing personal matters and the effects of working out on parts of their bodies. Mr Sharma stated the claimant told him some very personal problems she was having. On the other hand Mr Sharma was the Centre Manager in a position of authority and warned the claimant on another occasion that she needed to carry out particular tasks or that her job would be under threat. These are very mixed messages.[134]Ms Gunnell, in particular, considers that a relevant factor is that in order to receive training the claimant has to be alone in a massage room with Mr Sharma when the latter was in a state of undress. She has been told that there are training requirements - and we accept there were training requirements - which nevertheless make her feel vulnerable. Judge George and NLM Vaghela agree that that is an understandable reaction for her to have and we consider that the responsible manager would have ensured that there was an appropriate level of reserve and that was lacking.[135]In all those circumstances it is reasonable for her to regard that comment as degrading, intimidating and offensive and the allegation of sex-related harassment is made out in relation to list of issues 50.c). It is clear from the chronology that this incident, like all of the alleged incidents, occurred before Mr Sharma went on holiday on 21 August 2023.[136]The next alleged incident is that at List of Issues paragraph 50.d) when Mr Sharma gave the claimant to lift from home to work. The precise allegation is not made out as it is worded because, although Mr Sharma suggested collecting the claimant when she had broken down, she accepted his lift on the first occasion. She gave evidence to the effect that nothing inappropriate had happened in the car. There is no reference in her witness statement to him having said anything that upset her and she accepted that in oral evidence. She appears to have been generally uncomfortable to be in close private proximity with him and therefore decided to make alternative arrangements on the second day. However, she did not allege that he had done anything worthy of criticism on the day when he did give her a lift.[137]The minority (NLM Gunnell) would uphold this complaint:a. NLM Gunnell found the claimant’s explanation about how she felt to be eloquent and accepts the following evidence. The claimant accepted in oral evidence that there had been two separate offers. She said that she had felt obligated and uncomfortable and felt pressured by Mr Sharma “if I didn’t do what he wanted I would be in trouble he would tell the directors. I felt obligated to do things that’s why I decided I do not want you to pick me up” and a different colleague collected her.b. Ms Gunnell gives weight to the fact that by declining the further lift, the claimant was inconvenienced. She accepts that the claimant was upset and felt very strongly about it. That may be because of other things that had happened that meant she was in a hypersensitive state in relation to anything that Mr Sharma did. By this time in mid-August the claimant was starting to experience what develops into ill health and Ms Gunnell accepts that the claimant was not comfortable to be with Mr Sharma.c. Ms Gunnell thinks it objectively it is reasonable for offering a lift that puts two people without history in close proximity to be considered as creating the harassing environment. She considers it to be very clear that the claimant felt so strongly that she would rather go by train than go in the car with Mr Sharma although Ms Gunnell accepts that Mr Sharma would not have known that the claimant was in such a hypersensitive state.d. In all the circumstances, Ms Gunnell considers the claimant’s perception nevertheless to be a reasonable one. Furthermore, although she does not think that offering the lift is sexual conduct, she accepts that the offer of a lift was related to sex. This is because Mr Sharma was getting more and more involved in the claimant’s life. He was becoming inappropriately close and the offer was imbued with being interested in the claimant sexually. That this was not simply an offer of a lift. That means the offer was related to sex. Ms Gunnell accepts the claimant’s argument on this was that it was part of the piece with Mr Sharma wanting to arrange things so that he would be in close proximity with her in the same way as he kept asking more and more massages.e. Ms Gunnell also gives weight to the claimant’s unhappiness that Mr Sharma should come to her house and pick her up (para.18), encroaching on her personal life. Ms Gunnell thought that significant and is sympathetic to her motivations for initially accepting. The claimant considered Mr Sharma to overstepping the appropriate boundaries. NLM Gunnell would find the statutory test for harassment to be satisfied in relation to this act.[138]The majority (NLM Vaghela and Judge George) would dismiss this complaint:a. They consider that the fact that the claimant agreed to Mr Sharma to come to her house on one day before changing her mind means that her unease about him coming to her house is now being overstated. The date of the offer of a lift on 18 August was the day after the claimant sent by WhatsApp the photograph at RB page 270 of her feet when she was visiting a spa. That was unsolicited and her comfort and proffering a photograph of her in a leisure activity is at odds with the degree of distress she now states she was experiencing. Her oral evidence about how she felt at the time was contrary to the contemporaneous evidence.b. Even if the offer of the lift was unwanted, it is also clear that Mr Sharma’s purpose in offering to give the claimant a lift was simply that - it was not suggested otherwise to him; it was not suggested that his purpose was to create the harassing effect.c. Nothing untoward happened during the lift and – other than the one comment which we have accepted was made – there is nothing from which to infer that the offer of a lift was related to sex or sexual conduct. The majority do not agree that the one incident of sex related harassment they have upheld means that all other conduct by Mr Sharma was related to sex. This conclusion is, in part, informed by their finding that the alleged ‘erection’ comment did not happened.d. Even were they to accept that the claimant felt pressured, uncomfortable or obligated. the majority does not accept that is a high enough bar to meet the statutory test for harassment. Furthermore it is not reasonable for offering the claimant a lift on the second or subsequent days to have the harassing effect when the claimant had accepted a lift the previous day. Mr Sharma would not have known the offer was unwanted and was not pressing an offer which had been rejected.e. The majority consider that the claimant’s present position probably does not reflect what she felt at the time. Such contemporaneous documentation as there is (such as RB page 175) does not support a finding that the claimant felt as deeply at the time that Mr Sharma was personally intrusive and seeking every opportunity to be close to her. The majority therefore reject her oral evidence that that was how she felt then. Nothing was raised at the time, there is no contemporaneous supporting evidence that it was problematic for her. The majority conclude the offer of a lift, even it unwanted, did not have the harassing effect.f. Objectively, for Mr Sharma to offer the claimant a lift in the context of the friendly nature of their relationship, so far as he was aware, was unremarkable and cannot reasonably be regarded as having the harassing effect.[139]This allegation fails by majority decision that offering the lift was not related to sex, was not conduct of a sexual nature and did not have the effect of harassment, taking into account the claimant’s perception and whether it was reasonable for that conduct to have the harassing effect.[140]As to List of Issues paragraph 50.e), the allegation is that in July and August 2023 Mr Sharma assigned the claimant the task of providing him with special massages. Our finding is that the claimant was only ever asked to perform the Classic massage; that was her evidence. The difference between the two types of massage was in timing not in any special type of massage. A summary of what we found was that the documentary evidence supports one or two occasions on which Mr Sharma seems to have asked for a massage because he wanted it – although the evidence does not support that a massage was actually undertaken other than for feedback, timing practice and training. However, it is an example of Mr Sharma blurring the message and it made it unclear to the claimant whether all of his requests for massages were connected with a training programme or whether some were requests for massages as a perk of being manager. The lack of formal record of training would only add to this confusion.[141]The claimant puts her case as being that there was a request because of Mr Sharma’s sexual gratification.[142]The majority (Mr Vaghela and Judge George ) see no evidence from which it is right to infer that the reason why Mr Sharma was asking for a massage was his sexual gratification rather than non-sexual personal reasons to need a massage (such as muscle fatigue). Giving a massage or asking for a massage does not become related to sex or sexual in nature simply because the act of massage involves skin on skin and one participant in a state of undress. The evidence that Mr Sharma on one or two occasions appeared to ask for a massage for a reason that was not a proper reason for training purposes (but were to do with his own muscle pain) does not cause the majority to infer that they were instead for sexual reasons.[143]Furthermore, the Panel unanimously thinks that the claimant has exaggerated the number of occasions on which she was asked to provide a massage. There is supporting evidence of one or two occasions on which she was asked to massage Mr Sharma between about the second week of August and when he went on holiday on 21 August which is period when she began to feel particularly uncomfortable. Our finding was that there were no more than 5 occasions in about 5 weeks of overlapping employment. That may have felt too many to the claimant. However, there were genuine training reasons for the massages and the number alone does not support an inference that Mr Sharma abused his position.[144]The claimant says that he started to ask for massages again on his return and that was when she became unfit to work. She was certified unfit to work and complained to the GP about the matter she now describes to us.[145]Despite some reservations on the part of Judge George because of the lack of prompt contemporaneous complaint of sexual harassment, the complaints to the GP and the effect on the claimant’s health cause Judge George and Ms Gunnell to accept that she was unhappy about the massages themselves and felt uncomfortable about them not simply because she was deprived of a target meeting opportunity.[146]NLM Vaghela infers from the documents that the claimant’s unhappiness was predominantly the loss of the business opportunity and earnings potential that unexpectedly being removed from the office represented.[147]Ms Gunnell describe the claimant’s unhappiness as being that she did not know whether the requests were legitimate and nobody seemed able to tell her. She did not know whether Mr Sharma was just seeking personal massages and there is an unfortunate informality in the way that they were arranged to judge by the messages dating between 5 and 17 August. She finds the claimant credible when she states that she considered the requests to be persistent, unnecessarily frequent and unjustified.[148]Judge George sees objective evidence of only one or two requests that were unconnected with training. (on 6 August 2023 “I’m gutted I didn’t come in for the 80 min with you today TBH my body is in pieces” (RB page 251) and “I need to get another massage” “Both my legs are tight I think” (RB page 252 on 8 August 2023). It’s not clear that one happened in response to either message; Mr Sharma conceded one minute after the second comment that he just needs to drink more water and stretch and the evidence tends to suggest that the claimant was not working between those two messages. Therefore, there is no clear evidence about there being multiple occasions in which the claimant was asked to provide a massage for reasons other than training.[149]The panel unanimously accept that whether or not the request to provide massages was legitimate there came a time when it was unwanted – although we are not unanimous about why the claimant did not want them to continue. The panel agreed that the claimant did not want to be providing massages to Mr Sharma: first she spoke to the Assistant Manager, then there is evidence that she came up with reasons why she could not massage Mr Sharma and her first letters to the directors suggest that these requests were an abuse of a position of power and took her away from her true role of selling[150]The panel are not agreed on whether the requests for the massages in any one occasion was conduct of a sexual nature.[151]The minority (Ms Gunnell) accepts that on one occasion Mr Sharma informed the claimant during a massage that he had an erection and this gave sexual undertones not only to that one event but to any massages thereafter. The fact it happened once creates the fear that it might happen again. Therefore she accepts that subsequent requests did have sexual undertones. Although there were probably fewer than five occasions in total these were related to sex and it was reasonable for requests for massages even if ostensibly for training purposes to have the harassing effect because the one occasion on which Mr Sharma became aroused cast an inappropriately sexual slant over the whole enterprise. Ms Gunnell also gives weight to the informality of the WhatsApp exchanges which show Mr Sharma asking for a massage for personal reasons and the absence of the requests being in the context of training. There is no evidence after she started work at the Centre of anything structured by way of continuing training programme.[152]The majority (Judge George and Mr Vaghela) are not satisfied that the claimant has shown that Mr Sharma informed her on one occasion that he had an erection and laughed. The majority factual finding is that that alleged act (list of issues paragraph 50.b)3)) did not occur. There is therefore a situation where, although on one or two occasions Mr Sharma asked for a massage for personal benefit and there must have been one or two occasions where it can justifiably be said the request for a massage was unwanted conduct the request itself was not related to sex or conduct of a sexual nature on any specific occasion. The majority would dismissed LOI 50.e) because the conduct was not related to sex or conduct of a sexual nature. The majority also think that, even if the requests for massages were genuinely perceived by the claimant to create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant, it was not reasonable in all the circumstances for it to do so (see our reasoning in relation to LOI 50.a) at para.124 above.[153]In relation to LOI 50.f., a majority (NLM Gunnell and Judge George on this occasion) have found that the incident happened. Nevertheless, the conclusion of the majority (NLM Vaghela and Judge George) is that this allegation fails. The minority, NLM Gunnell, would find that the requirement to massage Mr Sharma under threat of dismissal was sex related harassment by the same reasoning that she applied to her conclusion that the requirements for massages in August generally was sex related harassment.[154]NLM Vaghela and Judge George apply their reasoning from LOI 50.e. to this act (NLM Vaghela doing so on the assumption that the incident happened – which he does not accept). Although the threat to her employment increases the intimidation and means the majority accept that the claimant genuinely perceived this as intimidating, where the request for massages does not relate to sex (and is not sexual conduct) the threat of a director’s displeasure if she does not comply with the manager’s request for a massage is not itself related to sex. The threat related simply to the exercise of authority and not to sex. In particular, as explained in para.78 & 79 above, Mr Vaghela finds that the threat to her employment was concerned not with her refusing to massage Mr Sharma but with her refusing to attend a weekend event.[155]A summary of our conclusions on the individual allegations of harassment are:a. LOI 50.a) & e) should be taken together as they overlap. The majority view (Judge George and NLM Vaghela) is that this fails because the unwanted conduct on the couple of occasions when Mr Sharma asked the claimant for massages and those requests were unwanted was not conduct related to sex or conduct of a sexual nature; Furthermore, the majority view is that it was not reasonable to regard the requests as having the harassing effect in all the circumstances.b. LOI 50.b.1 unanimously fails because referring to underwear and saying the claimant should not get oil on it is not related to sex or conduct of a sexual nature in the particular context of a training massage.c. LOI 50.b.2) unanimously fails because the only references to Mr Sharma’s physique were in the WhatsApp messages and the unanimous view of the panel is that the statutory test is not satisfied in relation to those messages.d. LOI 50.b.3) the majority view (Judge George and NLM Vaghela) is that this allegation fails because the claimant has not shown that Mr Sharma made the comment alleged;e. LOI 50.c. the panel unanimously consider that this comment was said and amounts to sexual harassment. The comment happened before 21 August 2023 so the tribunal will go on to consider whether it is just & equitable to extend time for presentation of that complaint.f. LOI 50.d. by a majority (Judge George and NLM Vaghela), this complaint is dismissed. The majority conclude that offering the claimant a lift in the circumstances we have found in our primary fact finding was not related to sex. In addition, the majority view is that it is not reasonable for the offer of a lift – made on the second of two successive days when the claimant’s car had broken down – to be regarded as having the harassing effect when the claimant had accepted a lift the previous day in the context of the relationship between her and the Centre Manager as a whole.g. LOI 50.e. is covered in LOI 50.a).h. LOI 50.f. A majority of the panel (Judge George and NLM Gunnell) consider that the incident happened. However, by a different majority (Judge George and NLM Vaghela), the complaint is dismissed. Judge George does not think the incident was related to sex. Mr Vaghela neither thinks the incident happened nor that any requested massages were related to sex or sexual conduct so the allegation fails. Time Limits[156]We need to consider whether it is just & equitable to extend time in relation to the single successful complaint: LOI 50.c). The incident pre-dates 21 August 2023 when Mr Sharma went on holiday. Any incident which occurred before 24 August 2023 is, on the face of it, out of time. Although we can’t date the incident precisely, it probably happened in early August. Therefore the claimant does not benefit from the extension of time due to early conciliation and the claim was presented about 2 months late.[157]The claimant’s explanation for any delay in presenting the claim needs to be considered. What happened in the period August 2023 to November 2023, when the primary time limit for this complaint was running? The claimant resigned. She had also been signed off work with poor mental health which would contribute to someone not finding it easy to focus on bring a complaint to the employment tribunal. Furthermore, from 31 October 2023 onwards she was prioritising recovering the deduction of the training costs and then engaged in meaningful discussions about reinstatement. It was when the prospective resumption of the employment relationship fell apart that it was reasonable for her to reflect on her actions and then bring an employment tribunal claim. We consider that the explanation for the relatively short delay is entirely reasonable.[158]We also take account of potential prejudice to the respondent. Mr Sharma did not know about the proceedings until weeks before the hearing – long after the respondent knew about the proceedings and the allegations concerning him. They appear to have entered a response without having taken instructions from Mr Sharma, which is odd and risky conduct of the litigation. Nevertheless, he was able to give evidence about the incident and it is partly because of his account that we have found that had happened. Therefore the respondent has not been disadvantaged by the short delay. Had they been then the delay in Mr Sharma knowing about the allegation is largely of the respondent’s own making by not contacting their witness sooner.[159]In summary, the delay is short, the reason for her delay is reasonable, her focus would reasonably have been elsewhere – she experienced some mental ill health and had family responsibilities and there is no prejudice to the respondent. There would be considerable prejudice to the claimant to be unable to obtain redress in respect of a successful complaint. It is just & equitable to extend time. Reasons for resignation[160]It was agreed that we would, in the first instance, consider issues which are properly part of remedy namely whether any successful complaint of harassment caused the claimant’s resignation (and therefore caused any financial loss flowing from the loss of employment) and whether the respondent would have dismissed her in any event.[161]The resignation was not caused by the successful complaint. The reasons given by the claimant at the time are set out in p.168. They are that, due to ill health, she cannot fulfil the task set out in her job description. There were a series of cumulative events which caused her to resign. The majority (NLM Gunnell and Judge George) accept that the claimant’s reason for resigning was work related stress which she attributed to Mr Sharma’s demands for massages. They accept that that was the principle reason for causes of resignation and that conduct, by a majority (NLM Vaghela and Judge George), has been found not to be unlawful.[162]Mr Vaghela does not accept that that was the principle reason for the claimant’s resignation and concludes that she was more concerned about the impact of the requirement to do training massages on her ability to earn additional income, as evidenced by the correspondence at RB pages 175-179.[163]The panel unanimously find that the proven harassment in LOI 50.c) was in no meaningful sense a cause of the claimant’s resignation. She has not shown financial loss caused by the harassment.[164]However she should be compensated for injury to feelings caused by that act and if the parties are unable to agree terms on that it will be decided at a remedy hearing.[165]Since the resignation was not caused by the unlawful act, we do not have to go on to decide whether the respondent would have dismissed her in any event. We comment that the respondent was very unlikely to prove that, given that they tried so hard to renegotiate her contract of employment so that she could return to work. Unauthorised deduction from wages[166]The unauthorised deduction from wages complaint fails as a free standing complaint. See the claimant’s terms and conditions at CB1 page 26. The contract clearly provides that if the contract is terminated for reasons other than redundancy and the claimant has not been employed beyond the end of her probation period then the training fee is deductible. Therefore the deduction was in accordance with contract. If the claimant had succeeded in her harassment complaint and had been able to show that she resigned because of the harassment found proven, then she could have argued that the £400 deduction flowed from her being forced to leave prematurely. However, she has not shown that her resignation was caused by any unlawful act and therefore this scenario does not arise for consideration. Approved by: