Ms F Janjua v Harvey Jones Ltd (in administration) and Others: 3303048/2023

EMPLOYMENT TRIBUNALS

Case No 3303048/2023

Between

Ms F JanjuaClaimant

Harvey Jones Ltd (in administration) and OthersRespondent

Before

Employment Judge Shastri-Hurst, Mr J Appleton, Ms S

In person for claimant

Date 9 December 2025

JUDGMENT

[1]The claim of direct age discrimination is not well-founded and fails;

[2]The claim of direct race discrimination is not well-founded and fails;

[3]The claim of direct sex discrimination is not well-founded and fails;

[4]The claim of sexual harassment is not well-founded and fails;

[5]The claim of harassment related to sex is not well-founded and fails;

[6]The claim of victimisation is not well-founded and fails.

REASONS

[1]The First Respondent (“HJL”) was a company that produced, designed, supplied and fitted handmade kitchens. At the start of this litigation, it took an active part. However, on 23 February 2024 the administration of HJL commenced. According to Companies House, that administration ended on 5 August 2025. For the majority of the life of this litigation, HJL has been represented by its administrators, Interpath Ltd, who have not taken an active role in these proceedings. They did however give their permission for the claim to proceed.

[2]The Third Respondent (“MM”) was the National Sales Manager (“NSM”) of HJL at the relevant time, and the Second Respondent (“JD”) was the Regional Sales Manager (“RSM”) for the West Region of HJL and the Claimant’s line manager from August 2022.

[3]The Claimant (“FJ”) commenced her employment on 4 July 2022 as a Sales Designer. She was dismissed from HJL on 1 December 2022. She therefore worked for HJL for a little under 6 months. It is the respondents’ case that she was dismissed due to underperformance, meaning she did not pass her probation period. FJ disputes the suggestion she underperformed, and therefore challenges the reason for her dismissal: her claims relevant to dismissal are ones of race discrimination and victimisation.

[4]During FJ’s employment, she says that she was discriminated against on the basis of her age, race and sex, and was the victim of sexual harassment and harassment related sex, as well as being victimised for doing protected acts.

[5]FJ commenced the ACAS early conciliation process against HJL on 19 January 2023. That process concluded on 2 March 2023. As against MM and JD, she commenced the early conciliation process on 27 February 2023: that process concluded on 24 March 2023.

[6]FJ then presented her ET1 claim form on 1 April 2023 against all three respondents. Originally, all three respondents were represented by Sydney Mitchell LLP. As we have mentioned above, during the course of this litigation, HJL went into administration: we have in the bundle notes from a board meeting on 31 January 2024, at which it was resolved that the company was insolvent and would enter early administration, receiving advice from Interpath Ltd - [91].

[7]As a result of the administration, the representation of respondents has altered during the course of this case. This led to some confusion during the case management stage, but eventually all parties were made fully aware of what was required of them and attended the relevant preliminary hearings.

[8]During this final hearing, FJ and JD represented themselves, and MM was represented by Mr Ogunshakin of counsel.

[9]In order to assist us, the Tribunal has before it an agreed bundle of 1227 pages as well as a witness statement bundle of 147 pages. References to page X of the bundle are denoted as [X]. References to witness statements are denoted as (for example) [FJ/X] for paragraph X, or [JD/pY] for page Y in the absence of paragraph numbers.

[10]The Tribunal has had the benefit of hearing evidence from the following witnesses (in order of giving evidence): 10.1. The Claimant (“FJ”) – Sales Designer (Marlow, West) 10.2. The Second Respondent (“JD”) – RSM (West) 10.3. Louisa Soulsby (“LS”) – Sales Designer (Worcester, North) 10.4. Grace Murray (“GM”) – Sales Designer (Birmingham, North) 10.5. Rhian Williams (“RW”) – Senior Designer (North) 10.6. The Third Respondent (“MM”) – NSM 10.7. Scott Bennett (“SB”) – RSM (North) 10.8. Darren Woolsgrove (“DW”) – Chief Executive Officer

[11]During this hearing, it came to light that MM required some reasonable adjustments in order to adapt the process to assist her in managing her mental health, particularly her anxiety levels. We asked her barrister what she needed from us, and accommodated the requests for more regular breaks, the slowing down and repeating or rewording of questions, and the request to have a pen and paper with her in the witness box to assist in processing the questions being asked of her.

[12]We are grateful to FJ and JD, who have been representing themselves throughout the majority of this process at least. They have acquitted themselves well in the manner in which they have approached this case and conducted themselves during the course of this hearing. We are grateful also for the assistance of Mr Ogunshakin on behalf of MM.

Issues

[13]The issues were finalised over the course of several preliminary hearings, following various applications from the claimant and the respondents, to amend and to strike out respectively. The final list of issues which we have referenced throughout the course of this litigation appears at [1000]. It is copied below for ease of reference. 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 20 October 2022 against the first respondent and 28 November 2022 against the second and third respondent may not have been brought in time.

1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2. First respondent’s defence (Equality Act 2010 section 109) 2.1 The first respondent seeks to rely upon s109 EqA, and argue that it took all reasonable steps to prevent its employees from discriminating, harassing or victimising the claimant. 3. Direct age discrimination (Equality Act 2010 section 13)

3.1 The claimant says that, at 39, she was considered to be “old”.

3.2 Did the respondent do the following things:3.2.1 27 July 2022 – Nawaz Salauddin said “I wouldn’t do it that way” in relation to the claimant performing a task. He leaned over the claimant without warning, took control of the mouse and showed her how to add attachments to a document. The claimant said “I did not know you could do that”, to which he replied “coz you’re old”;

3.2.2 25 August 2022 and 1 September 2022 - the second respondent said to the claimant that he would guess she was 25 years old;

3.2.3 25 August 2022 – after being told the claimant was 39, the second respondent reacted as if shocked and disgusted;

3.2.4 25 August 2022 – the second respondent got up and left abruptly;

3.2.5 21 September 2022 – 30 September 2022 – the second respondent referred to the claimant as “crap” and used the words “fault” and “bullshit” a lot towards her;

3.2.6 Specific examples are as follows:3.2.6.1 Whilst discussing the fact that a customer had yawned at the claimant, the second respondent said “coz you’re crap, it’s your fault”;

3.2.6.2 In discussing a photo being added to a virtual demo, the second respondent said “what difference does a photo make, there’s nothing wrong with the demo, you’re crap, designers sell from the demo all the time”;

3.2.6.3 When discussing a discount of £2,500/£3,000, and the claimant saying that this was a small discount, that she had been asked for discounts of more than £10,000 before in this area, that she knew people who spent £20,000 on a meal, and that she had had customers who spent £17,000 in John Lewis, the second respondent said “bullshit”.

3.3 Was that less favourable treatment?3.3.1 The Tribunal will decide whether the claimant was treated

3.3.2 The claimant relies on a hypothetical comparator.

3.4 If so, was it because of age?

3.5 Did the respondent’s treatment amount to a detriment?

3.6 Was the treatment a proportionate means of achieving a legitimate aim?

3.7 The Tribunal will decide in particular:3.7.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

3.7.2 could something less discriminatory have been done instead;

3.7.3 how should the needs of the claimant and the respondent be balanced? 4. Direct race discrimination (Equality Act 2010 section 13)

4.1 The claimant identifies as British Asian

4.2 Did the respondent do the following things:4.2.1 11 July 2022 – Nawaz Salauddin asked the claimant where she was from. After she had told him he walked away with a smile on his face (reference to the Asian caste system);

4.2.2 [removed]

4.2.3 [removed]

4.2.4 16 August 2022 – Nawaz Salauddin called Rohim Ali a peasant;

4.2.5 16 August 2022 – Nawaz Salauddin said that he (Ali) was below him (Salauddin)”;

4.2.6 25 August 2022 – the second respondent asked the claimant where she was from;

4.2.7 [removed]

4.2.8 1 December 2022 – the claimant failed her probation period and her employment was terminated.

4.3 Was that less favourable treatment?4.3.1 The Tribunal will decide whether the claimant was treated

4.3.2 If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated.

4.3.3 The claimant says she was treated worse than the following individuals:4.3.3.1 Issues 4.2.8 - Louisa Soulsby and Grace Murray (they are white)

4.3.3.2 Conduct by Nawaz Salauddin – Georgina Hall (designer), “Jen” (designer), Greg Davies (query surname?), the second and third respondent.

4.3.4 For all issues, the Tribunal will need to consider a hypothetical person.

4.4 If so, was it because of race?

4.5 Did the respondent’s treatment amount to a detriment? 5. Direct sex discrimination (Equality Act 2010 section 13)

5.1 Did the respondent do the following things:5.1.1 28 April 2022 – Rohim Ali interviewed the claimant for a longer period than her comparators;

5.1.2 28 April 2022 – Rohim Ali asked her questions at the end of the interview about her marital status and if she had children;

5.1.3 11 July 2022 – 30 September 2022 – Nawaz Salauddin told the claimant her black dress was not professional;

5.1.4 11 July 2022 – 30 September 2022 – Nawaz Salauddin asked why she was wearing flip flops;

5.1.5 [removed]

5.1.6 [removed]

5.1.7 25 August 2022 – the second respondent said the following:5.1.7.1 asked the claimant if she was single on three separate occasions;

5.1.7.2 asked when she had last been with someone;

5.1.7.3 suggested she should go on Tinder;

5.1.7.4 suggested she would meet someone in pubs;

5.1.7.5 [removed]

5.1.7.6 mentioned going out and giving a guy the right signal;

5.1.7.7 saying that the claimant should go on Love Island.

5.2 Was that less favourable treatment?5.2.1 The Tribunal will decide whether the claimant was treated

5.2.2 If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated.

5.2.3 The claimant says she was treated worse than the following individuals:5.2.3.1 Issues 5.1.2. - three males interviewed on 15 August 2022, 5 September 2022 and 27 October 2022;

5.2.3.2 For all issues, the Tribunal will need to consider a hypothetical person.

5.3 If so, was it because of sex?

5.4 Did the respondent’s treatment amount to a detriment? 6. Sexual harassment (Equality Act 2010 section 26)

6.1 Did the respondent do the following things:6.1.1 [removed]

6.1.2 26 July 2022 - Rohim Ali touched his crotch during a training session;

6.1.3 [removed]

6.1.4 25 August 2022 – the second respondent looked at the claimant’s breasts are too long and leered at her body;

6.1.5 25 August 2022, 5, 8, 22, 23 September 2022, 27 October 22 and 1 December 2022 – the second respondent would leer towards the claimant, staring at her breasts, looking the claimant up and down, and from behind;

6.1.6 18 October 2022 – the second respondent said I should take him out, then said “next time you go on a date you can pay and keep the receipt to expense it or treat me to lunch when I'm next in Marlow”;

6.1.7 [removed].

6.1.8 1 September 2022 – the second respondent said “you look like you need a hug”, and then gave her a hug.

6.2 If so, was that unwanted conduct?

6.3 Was it of a sexual nature?

6.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

6.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 7. Harassment related to sex (Equality Act 2010 section 26)

7.1 Did the respondent do the following things:7.1.1 11 July 2022 – 30 September 2022 – Nawaz Salauddin told the claimant her black dress was not professional;

7.1.2 11 July 2022 – 30 September 2022 – Nawaz Salauddin asked why she was wearing flip flops;

7.1.3 [removed]

7.1.4 [removed]

7.1.5 [removed]

7.1.6 5 August 2022 – the second respondent said the following:7.1.6.1 asked the claimant if she was single on three separate occasions;

7.1.6.2 asked when she had last been with someone;

7.1.6.3 suggested she should go on Tinder;

7.1.6.4 suggested she would meet someone in pubs;

7.1.6.5 [removed]

7.1.6.6 mentioned going out and giving a guy the right signal;

7.1.6.7 saying that the claimant should go on Love Island;

7.1.7 [removed].

7.2 If so, was that unwanted conduct?

7.3 Did it relate to sex?

7.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

7.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 8. Victimisation (Equality Act 2010 section 27)

8.1 Did the claimant do a protected act as follows:8.1.1 16 August 2022 - the claimant raised a grievance to the second respondent about the conduct of Nawaz Salauddin to include racist comments and sexual harassment;

8.1.2 [removed]

8.1.3 1 September 2022 – the claimant discussed her grievance about Nawaz Salauddin with Ryan Tuckwell;

8.1.4 [removed]

8.1.5 10 October 2022 – the claimant emailed Matt Dagworthy to discuss her grievance about Nawaz Salauddin;

8.1.6 18 October 2022 – Matt Dagworthy called the claimant to discuss the grievance further;

8.1.7 [struck out]

8.1.8 15 November 2022 – the claimant complained of sexual harassment from the second respondent to Ryan Tuckwell and the third respondent.

8.2 Did the respondent believe that the claimant had done a protected act?

8.3 Did the respondent do the following things:8.3.1 20 September 2022 – the second respondent said the business were not taking into account all the points she had raised in her grievance, and that they were only considering the incidents which have witnesses. He told her she would need to make a formal complaint if she wanted a different outcome and that she needed to be seen to make an effort as Nawaz Salauddin was reporting her behaviour;

8.3.2 21 September 2022 – 30 September 2022 – the second respondent referred to the claimant as “crap” and used the words “fault” and “bullshit” a lot towards her;

8.3.3 [removed]

8.3.4 27 October 2022 – the second respondent undertook the claimant’s probationary review 19 days early and spoke over her;

8.3.5 27 October 2022 – the second respondent set unachievable targets in the probationary review meeting;

8.3.6 1 December 2022 - the claimant failed her probationary period and was dismissed;

8.3.7 15 December 2022 – the claimant did not receive a reply to her email asking for the reason for her dismissal.

8.4 By doing so, did it subject the claimant to detriment?

8.5 If so, was it because the claimant did a protected act?

8.6 Was it because the respondent believed the claimant had done a protected act? 9. Remedy for discrimination or victimisation

9.1 What financial losses has the discrimination caused the claimant?

9.2 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

9.3 If not, for what period of loss should the claimant be compensated?

9.4 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

9.5 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

9.6 Should interest be awarded? How much? Findings of fact Facts regarding time limits

Findings of fact

[14]In relation to claims against HJL, any allegations that arose before 20 October 2022 were presented outside of the primary time limit of three months less one day – s123 Equality Act 2010 (“EqA”).

[15]In relation to claims against JD and MM, any allegations that arose before 28 November 2022 were presented outside of that primary time limit.

[16]This means that the following claims were presented outside of the primary time limit and therefore are, on the face of it, out of time: 16.1. Direct age discrimination; 16.2. Direct sex discrimination; 16.3. Sexual harassment; 16.4. Harassment related to sex.

[17]In terms of the direct race discrimination, there is one allegation which is in time which is that at issue 4.2.8, namely “the claimant failed her probation period and her employment was terminated”. That is an allegation that is faced by all three respondents. The remaining allegations of direct race discrimination are out of time unless we conclude that there is a course of conduct extending over a period ending with the claimant’s termination – s123(3)(a) EqA.

[18]Regarding the claimant’s victimisation claim, several of the detriments allegedly suffered were raised to the Tribunal within the correct timeframe. There are two allegations that were presented out of the primary time limit namely issue 8.3.1 and 8.3.2, unless we consider that all allegations amount to a course of conduct extending over a period. The first respondent’s situation and the statutory defence

[19]The precise position regarding HJL’s status has troubled the Tribunal throughout this litigation. During the course of the various preliminary hearings, the Tribunal has heard that, essentially, HJL has resurrected itself in a different name (Harvey Jones Home Limited), but to all intents and purposes is the same company, with several of the same staff: it appears to be a phoenix company. Although this can be an entirely legal process, it has added complications to these proceedings in terms of the parties attempting to obtain disclosure, for example.

[20]The case has been one which has been understandably filled with emotion from all of the individual parties. The subject matter and the proceedings themselves have evidently caused FJ, JD and MM a great deal of anguish, stress and anxiety. This has not been helped by HJL’s administration and the confusion and lack of transparency that it created.

[21]At the commencement of this process, HJL was an active company with representation. It pleaded the “statutory defence” under s109(4) EqA: “(4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A—(a) from doing that thing, or

(b) from doing anything of that description.”

[22]Evidently, given that HJL has not presented any evidence at this final hearing, this defence cannot and does not succeed. The burden of proof is on HJL, and it has wholesale failed to proffer any evidence from which we could possibly find in favour of it on this point. Recordings and transcripts

[23]Within the bundle, we have several transcripts of recordings which have also been provided to the Tribunal. These recordings were taken by FJ and record conversations primarily between herself and JD, upon which she now seeks to rely. The transcripts are transcripts produced by FJ (as opposed to an independent third party). None of the respondents have taken issue with these transcripts. The Tribunal has listened to the recordings. Although the Tribunal has not compared each and every transcript to the relevant recordings, on closer analysis of one particular recording, the Tribunal noted that there were some minor inaccuracies in the transcript, however not sufficient to change the meaning of the recorded conversation.

[24]The Tribunal finds it concerning that the claimant felt the need to record certain conversations, particularly given she did not make a blanket decision to record all conversations. The fact that FJ felt a need to record some conversations particularly with her and JD suggests a mistrust of the company and the individual concerned. It also suggests that the claimant was thinking of a time when she would need the recordings as evidence to demonstrate an account of those conversations. General findings as to the witnesses

[25]The Tribunal has set out detailed findings about the facts of this matter below, however we consider it helpful to set out some overarching findings at this stage of our Judgment.

[26]FJ has, throughout this hearing, demonstrated a tendency to misinterpret or misremember; she has a tendency to see things differently to others. For example, when quoting back someone’s previous answer or previous question during the course of oral evidence, she has tended to be mistaken: when the Tribunal has been asked to check its notes, the claimant’s recollection has been inaccurate.

[27]Indeed, FJ herself has, on at least one occasion, recognised the possibility that she misinterprets. This example relates to an exchange that took place between JD and FJ in a telephone conversation on 18 October 2022. Chronologically, this is after FJ had raised some complaints about the Marlow Sales Administrator, Nawaz Salauddin (“NS”). FJ raised a concern that “Jen” had asked whether she was ok, understanding this to mean that Jen had heard about her complaints about NS. The Tribunal highlights the following exchange in the claimant’s transcript of the recorded call: JD: “Um you might be might be [sic] reading too much into that potentially I don’t know…” – [225] JD: “…I’m sure Jen was checking your [sic] ok or could just be [sic] we could just be reading too much into it and she [was] just seeing if you’re ok because your [sic] by yourself in the showroom”. FJ: “Maybe maybe and I’ve just taken it a different way…”.

[28]We also consider that the claimant has a tendency to draw links where there is not necessarily sufficient evidence to do so. The most obvious example of this was her interaction with a recruiter with whom she interviewed following her dismissal from HJL. FJ was and remains convinced that the recruiter knows JD, and that JD informed her (the recruiter) of FJ’s dismissal.

[29]This conclusion is based solely on JD’s Facebook profile stating that he is from Teeside County Borough, and the recruiter’s LinkedIn profile stating she went to Teeside University. From that, the claimant has deduced that, not only were they at Teeside University at the same time, but that they knew each other and have kept in touch. In order for FJ’s belief to work, either JD must have known somehow that FJ was interviewing with the recruiter and interfered, which begs the question of how he would know of the interview: or, the recruiter must have sought out JD, knowing that he worked at HJL, on seeing that FJ had worked at HJL too.

[30]FJ was so convinced of this link, and that R2 informed the recruiter of FJ’s dismissal, that she entered a complaint about the recruiter.

[31]This is a flimsy connection (at best) to make on the evidence before her. Although FJ said she thought she had seen, maybe on JD’s LinkedIn profile, that he went to Teeside University, JD told us (and we accept that) he has never been to university.

[32]FJ’s adamance, not only that JD and the recruiter know each other, but that JD told the recruiter of her dismissal, to us appears baseless. A further example of FJ misinterpreting is that she believed that the recruiter had asked her “were you dismissed from your previous job?”. The recruiter explained that a standard question she asks in interviews is “have you been dismissed from a previous role?”.

[33]It appears to us that, whether due to experiences in HJL or other historical experiences, FJ is pre-disposed to see conspiracy and plots where there is no good evidence for the same. Another example of this is FJ’s suggestion to DW in cross-examination that he left HJL because of her commencing the ACAS early conciliation process. It is fair to say that DW resigned as a director of HJL on 25 January 2023, and FJ’s ACAS early conciliation against HJL commenced on 19 January 2023.

[34]DW’s answer to this suggestion from FJ was to laugh. He explained that he was laughing “at the ridiculousness of that statement”. He explained, and we have no reason to reject this evidence, that he left day to day operations at the beginning of January 2023 and his formal resignation was on 23 January 2023 as that was when he reached a settlement with HJL. We consider that the suggestion that a CEO of a company would(a) hear about the ACAS early conciliation process so swiftly, and

(b) would resign within 4 days of learning of that process in a state of panic is baseless and highly implausible.

[35]The claimant also at times was evasive. For example, when discussing whether a kitchen sale should have been attributed to her or her colleague “Hagar”, she did not answer the Tribunal’s questions directly. This is detailed further at the relevant part of our findings regarding kitchen sales at paragraphs 236 and 237. Another example is found at paragraph 111 below regarding a text conversation about David Beckham between FJ and JD.

[36]Turning to the other parties. In terms of MM’s evidence to us, both in her witness statement and orally, she did not appear to remember much from the relevant time. However, the detail she did remember was, perhaps unsurprisingly, beneficial to her case. MM’s lack of memory is, we find, understandable, given the trauma she was going through. MM’s sister was terminally ill abroad and passed away towards the end of 2022. Overall, we did not find MM’s evidence particularly helpful or enlightening.

[37]Regarding JD, we considered him to be transparent in his evidence, offering concessions on occasion. He was confident and clear in his answers, not hesitant or evasive. JD appeared genuinely upset and angry to be accused of the claims, and particularly in response to FJ’s closing submissions, in which she likened JD to a criminal. In relation to those submissions, we make it clear that we considered FJ’s suggestion that he was a “sexual harassment subject” and that his (alleged) behaviour “could possibly put him in jail” to be deeply inappropriate, given that there has never been any suggestion to us of police involvement in this matter.

[38]In terms of the other witnesses from whom we heard evidence, we found that they all attended with the intent of helping the Tribunal understand the facts of this case. We find that, particularly given that HJL is no more, they have no particular loyalty to any of the respondents, and could quite easily have refused to get involved in this matter. Those individuals are not invested in the process, and came across as dispassionate bystanders wishing to assist the Tribunal.

[39]FJ suggested to LS that she had a keen sense of loyalty towards JD because she had a crush on him. LS was visibly taken aback by the suggestion, stating “No way! He’s old enough to be my son. I’m in a long-term relationship”. We reject the implicit suggestion that LS has given us false evidence on the basis of having a crush on JD. HJL structure

[40]HJL had numerous showrooms across the country, divided into regions such as West, North and so on. Sometimes showrooms would be reallocated to different regions and therefore different RSMs. RSMs would have the line management duties for each sales designer within their region’s showrooms. The NSM is line manager to all the RSMs, although this appears to have been more of a pastoral role.

[41]Within the showrooms, on a daily basis, there are employees with two job titles, Sales Designer and Sales Administrator. Each showroom has its own order book, as does each designer. These order books contain the details of orders made for kitchens assigned to either an individual showroom, or an individual sales designer. It is the sales administrator’s role to administer the orders, assist the designers, and keep the order books up-to-date.

[42]FJ was assigned to the Sales Designer role in the Marlow showroom. She was the only designer employed there: this is unusual, the normal average is two designers per showroom. The Sales Administrator was NS, and the RSM at the time of the claimant’s commencement was Rohim Ali (“RA”).

[43]As of the beginning of August, JD took over as RSM to the West region, following RA being made redundant over the summer.

[44]In her claim of race discrimination, FJ has used LS and GM as actual comparators. They were both Sales Designers as well, but they had a different RSM, SB, and worked in different showrooms within the North region (LS in Worcester and GM in Birmingham). Key Performance indicators – leads

[45]We have heard that leads for sales could come to Sales Designers by two main routes: 45.1. Walk-ins: these relate to customers who walk into a showroom, thus providing a lead for a Sales Designer within that showroom; 45.2. Web-leads: these leads are formed when a potential customer goes on to the HJL website and requests a brochure. By doing so they become a web lead connected to a particular showroom. The Sales Designers in that showroom have 24 hours to chase up that lead. If they fail to do so, the lead goes onto a list of web-leads that is available to all Sales Designers to chase, regardless of their location.

[46]Part of FJ’s case is that the respondents’ suggestion that she was underperforming is inaccurate and not reflected by the figures.

[47]We have various documents, tables, and figures within the bundle, however the one that was referred to with most frequency was that at [742]. On that page there are two tables demonstrating performance of various showrooms and designers in the period of 1 August to 30 November 2022. Those tables were attached to an email sent by JD to MM and RT prior to the meeting at which it was determined to end the claimant’s employment on 30 November 2022.

[48]FJ has not in fact disputed the accuracy of the figures on [742]. She explicitly accepted in answer to the Tribunal’s question that her figures on that page (63 leads and 2 sales) were accurate, albeit caveated with “but then it says current month 3 sales”. On this point, this refers to FJ’s interpretation of one of the columns in the bottom table, entitled “current month”. We heard from MM that in fact this refers to the length of time the designer has been employed. This is consistent with our reading of the table: the maximum figure in that “current month” column is 12, because the figures are done for a rolling 12-month period. We were told that Tim Hurn and Joe Coombs had been employed for under a year: this too is consistent with their respective figures under that “current month” column (7 and 6 respectively). Further, working across the table at the bottom of [742], using “total sales” divided by “current month” to calculate the average sales per month did equate to the figures within the “average sales per month” column for each respective designer.

[49]We will return to FJ’s sales figure, and whether it should be two or three sales recorded in the “total sales” column, later in our decision. However, we come back to the point that FJ accepted these figures when expressly asked, and her caveat was a misunderstanding of the column “current month”. She does however interpret them differently to the respondents.

[50]The relevance of leads is really peripheral to the key issues in this case, however it is FJ’s case that she was deliberately given less leads than her comparators, meaning that she had less opportunity to sell. She says that this was JD’s intention, that a lack of leads would lead to her underperforming and being dismissed.

[51]The figures on [742] tell us that the total number of leads received by each showroom in the West region was as follows Showroom Total leads Bath 111 Bristol 202 Cardiff 183 Marlow 85 Oxford 96

[52]We heard unchallenged evidence, and accept, that the most accurate picture for the West Region showrooms is that there were two designers at each. This applies to all bar the Marlow showroom, at which the claimant was the sole designer.

[53]We note it is not quite as simple as dividing the total number of leads by 2 to obtain an average number of leads per designer. This is because designers from one showroom are on occasion given, or obtain, leads from other showrooms across the regions. This can be seen by the breakdown of the Marlow showroom on [742], under which seven designers other than FJ are listed as having had a handful of leads from Marlow. So it may well be the case, for example, that if we were to open up the breakdown of designers under Oxford, the claimant could possibly have a few leads under that showroom. However, we take a broadbrush approach and, by dividing the total leads for Bath, Bristol, Cardiff and Oxford, we reach the following rough averages for each designer in those respective showrooms: Showroom Average total leads per designer Bath 55.5 Bristol 101 Cardiff 91.5 Marlow 85 Oxford 48

[54]We therefore find, on that broadbrush approach, that FJ in Marlow cannot be said to have received significantly more leads than other designers in other showrooms, as was suggested by JD. However, neither can it be said that she received significantly less leads, as FJ herself has suggested to us.

[55]Even taking FJ’s actual number of total leads that have come under Marlow’s umbrella (63) as opposed to the total leads in Marlow of 85, it still remains the case that her figure would be the median of the range of figures set out above for total leads per designer. The same logic and conclusions apply if one undertakes the same exercise for the number of web-leads per designer in each showroom: Showroom Web leads per designer Bath 40 Bristol 89 Cardiff 83 Marlow 76 Oxford 41.5

[56]Again, we reach the same conclusion, that FJ’s total number of web leads do not demonstrate that she was an outlier. She was once again the median in terms of web-leads per designer. That applies even if we take only the claimant’s Marlow leads of 54 (as opposed to all the Marlow leads of 76): that would be the median figure within the West region.

[57]FJ further complains that she received no leads from Oxford. We have assumed as much in the figures above, by just using the leads she obtained via Marlow. Still her figures are the median figures across the West region.

[58]We have mainly addressed the issue of leads as it was a point that FJ spent much time discussing in her evidence and in her cross-examination. However, it was in fact common ground that the ultimate KPI was the number of sales. It is also common ground that FJ made no sales in the first (nearly) 4 months of her employment, until (earliest) 31 October 2022. April 2022 – interview with RA

[59]FJ attended for interview at HJL on 28 April 2022. As the RSM of the West region, RA undertook that interview. 28 April 2022 – allegation5.1.1 – RA interviewed FJ for a longer period than her comparators 28 April 2022 – allegation

5.1.2 – RA asked her questions at the end of the interview about her marital status and if she had child

[60]FJ has raised two complaints of direct sex discrimination regarding her interview, for which RA is the alleged perpetrator.

[61]We have not been taken any document in the bundle which demonstrates that FJ made a complaint about her interview at any stage before her ET1 claim form. It may be understandable initially, on obtaining a job, that one would not raise a complaint. However, we note even when she was an established employee and started raising other complaints, she did not ever raise matters of concern about RA and the conduct of her interview. We have limited evidence on these complaints; other than the claimant’s witness statement and the documents she has prepared for this claim, such as her ET1 and the ensuing preliminary hearings. We have not been taken to any contemporaneous evidence within the bundle that supports these claims.

[62]Furthermore, we have no evidence to which we have been taken that anyone else within HJL made any complaint about RA. In fact, in other areas of her complaint, FJ sites RA as the victim of discrimination by NS.

[63]Although FJ has given us her account of these allegations, we are not satisfied that the interview took place as she alleges: we repeat the observations we have made about her evidence set out above at paragraphs 25-35. When taken with the lack of any other supporting evidence that we have seen or heard regarding these matters, we find that FJ has failed to prove the facts of these allegations, and so reject these two allegations on that basis. July 2022 – commencement of employment

[64]FJ has made several complaints about NS’s behaviour towards her in the early days of her employment. As we have set out above, NS was the Sales Administrator for the Marlow showroom, and therefore was in the showroom with the claimant for the majority of their working time together. They were the only two individuals routinely in the Marlow showroom. 11 July 2022 – allegation 4.2.1 – NS asked FJ where she was from. After she had told him he walked away with a smile on his face (reference to the Asian caste system)

[65]As with the allegations dealt with above against RA, the only evidence we have on this point in terms of witness evidence is that of FJ. We have not been taken to any contemporaneous note of this allegation within the bundle.

[66]We therefore turn to consider what evidence we do have as to the claimant raising a complaint about NS generally. On 16 August 2022, FJ spoke to JD on the telephone, making complaints about NS. In fact, there were two phone calls between the two individuals on that date; the transcripts for those recorded calls are at [166] and [176]. There is nothing regarding complaints about NS in the second call transcribed at [176]. In the first call, it can be seen from the transcript that there is discussion around NS commencing on [168], with FJ saying: “So first of all what I would like clarification from you is Naz my manager?”

[67]She goes on to explain to JD that: “1. It’s managerial and 2. It’s kind of beyond that”.

[68]FJ goes on in this phone call to complain about NS’s handling of customers. She then moves on at [170] to complain that, in summary, NS is acting outside of his authority, acting as if he were FJ’s manager. She describes this conduct by NS as being “like [a] constant theme” – [170].

[69]The specific points about which she complains are as follows: 69.1. NS “[leaning] into me and like shouts in my face “all girls are psychos who need therapy” – [170]; and 69.2. one occasion on which FJ was talking to LS on the telephone, and FJ explained that NS “leans in, so leaning over me close to my face he’s like “who [are] you talking to”, and went on to quiz her about who she was having a conversation with. This exchange was overheard by LS on the other end of the telephone – [170-171].

[70]Towards the end of that part of the conversation she summarises saying at [171] this: “Those are the two worst things he’s done”.

[71]Latterly in the conversation, at [172], FJ made the following complaint: “… I came in last week wearing sandals. He said why you wearing flip-flops and I was like I’ve actually discussed it with James already. I was kind of like I don’t need your authority.”

[72]She also complained to JD that NS would suggest that FJ should pay for things for him, that every designer he’s given a lead to pays him cash, in other words asking for cash for leads – [173-174].

[73]At the end of their call, JD tells FJ that if there is anything else she can ring or message him. FJ replied – [174]: “No that it’s fine thank you and I appreciate your time and also really pleased that you can see what needs to be seen really”.

[74]That is the entirety of the complaints raised by FJ in a call which she later relies on as being a protected act in which she complained about the conduct of NS.

[75]Returning to this allegation, given that, by 16 August 2022, FJ is not afraid to make complaints about NS, we consider that the complaint as to the question “where are you from?” is conspicuous by its absence.

[76]Given the lack of corroborating evidence, and the distinct lack of this complaint within the telephone call of 16 August, we consider that the claimant has not proven the facts of this allegation. As such we reject the allegation on its facts. 11 July 2022 – 30 September 2022 – allegation 5.1.3 and 7.1.1 - NS told FJ her black dress was not professional

[77]As with allegation 4.2.1, we note that this complaint does not appear in the telephone call with JD on 16 August. Neither have we been taken to any document within the bundle in which FJ makes this complaint regarding the comment around a black dress. The first time it appears is within this litigation.

[78]The lack of supporting evidence, combined with our general observations as to FJ’s evidence set out above at paragraphs 25 to 35, lead us to conclude that FJ has not proven the facts to which these allegations relate. We are not satisfied that these allegations took place as alleged and as such we reject them on the facts. 11 July 2022 – 30 September 2022 – allegation 5.1.4 and 7.1.2 - NS asked FJ why she was wearing flip-flops

[79]As we have set out above at paragraph 71, FJ did complain to JD about this comment by NS. We therefore accept that factually NS did make this remark. However we take into account the context within which FJ refers to NS asking why she is wearing flip-flops. Reading the transcript as a whole, it is clear that FJ’s complaint stems from a frustration that NS is attempting to manage her despite him not being in a position of authority over her within HJL.

[80]On FJ’s own account to JD, shortly after this incident occurred, it appears that NS’s behaviour was designed to exert managerial control. FJ did not report this incident to JD as being related to or because of her sex.

[81]In terms of FJ’s reaction to NS’s comment regarding flip-flops, we find that she was angered, frustrated and annoyed at his attempt to exert managerial authority over her. There is no good evidence on the facts before us that a male sales designer in the Marlow showroom working alongside NS would have been treated any differently. We note particularly that the allegation relates to a comment about flip-flops. These are a style of shoe that are gender neutral.

[82]Furthermore, we note the context of the complaint in which this issue was raised: that, at the time of making the complaint, the claimant herself did not appear to consider this to be a form of discrimination or indeed harassment based on her wording.

[83]Finally, upon the facts presented to us by the claimant, we consider the reason for NS’s behaviour towards her to be an attempt to exert managerial authority. Taking this wider purpose, there is once more nothing before us to suggest that he would have acted in any way differently with a male colleague in materially the same circumstances as the claimant. 26 July 2022 – allegation 6.1.2 – RA touched his crotch during a training session

[84]This allegation is set out at [FJ/32], in which FJ states: “the entire time, over two hours, he spent touching his crotch area consistently. Standing up, sitting down, moving this way, moving that way. He seemed unaware of my discomfort and me trying not to face him and move away, he kept calling back my attention”.

[85]FJ relies upon a contemporaneous text message at [303], in which she told LS and GM, on the day following this training session: “I have to tell somebody because it’s making me cringe…… Yesterday my RSM repeatedly was touching his crotch area. It made me so uncomfortable. Think his trousers were to tight or something but it was full on!”

[86]On the basis that there is a contemporaneous complaint to her colleagues about this behaviour, we accept factually that RA had been touching his crotch area during the training session. However, in light of FJ’s text, we find that RA was unaware of anyone noticing or being perturbed by this conduct. Secondly, there is no evidence to suggest that this conduct was done in a way aimed at FJ. In fact, FJ’s own text message suggests, and we find that, RA’s trousers were simply uncomfortable, requiring him to adjust himself accordingly. 27 July 2022 – allegation 3.2.1 – NS said “ I wouldn’t do it that way” in relation to FJ performing a task. He leaned over the claimant without warning, took control of the mouse and showed her how to add attachments to a document. The claimant said “ I did not know you could do that”, to which he replied “coz you’re old”

[87]The only evidence we have on this issue is within FJ’s witness statement at [FJ/42]. We have no evidence from NS or anyone else to help us on this point. We consider that this conduct would be consistent with the type of behaviour from NS that FJ complained about: namely that he was seeking to manage her or exert his authority over. Furthermore, we find that a lack of technical knowledge is not infrequently deemed (rightly or wrongly) to be connected to age.

[88]On the balance of probabilities, we therefore accept that this conversation took place as suggested by FJ.

[89]In light of the evidence we have as to NS’s character and behaviour, in terms of his desire to assert his authority, we find that NS would have said this to anyone older than him. JD told us that NS was around his age which we understand at the time to be late 20s. We therefore find that NS would have said this to anyone who is older than him, and therefore older than their late 20s. August 2022

[90]At the beginning of August, JD took over as FJ’s RSM following RA being made redundant.

[91]At this stage, GM was based in the Birmingham showroom with SB as her RSM. LS was stationed in the Worcester showroom, which had to date been allocated to the West region with JD as her RSM. Around this time, Worcester was reallocated to the North region and so LS’s line management moved to SB. 16 August 2022 – allegation 8.1.1 – FJ raised a grievance to JD about the conduct of NS to include racist comments and sexual harassment

[92]We have set out the details of the specific complaints FJ made about NS in her phone call to JD on 16 August 2022 at paragraphs 67 to 75.

[93]We find that nothing within that telephone call or the specific complaints made about NS by FJ amounted to doing anything for the purposes of or in connection with the Equality Act, or making an allegation that NS had contravened the Equality Act. 16 August 2022 – allegation 4.2.4 – NS called RA a peasant 16 August 2022 – allegation 4.2.5 – NS said that he (RA) was below him (NS)

[94]These allegations are said to have occurred after work on 16 August 2022, when FJ, Georgina and NS went for a drink – [C/83].

[95]There are no WhatsApp messages to LS and GM complaining of this incident. This is despite the fact that FJ was happy (early on in her employment) to complain about NS on the three colleagues’ WhatsApp group they shared known as the ”HJ dream squad" - for example: 95.1. 5 August 2022 “Naz is busy arse licking [crying with laughter emoji]" - [308]; 95.2. 6 August 2022 “I didn’t even get a work in edge ways yesterday in 6 hours with James after Naz’s peacock display...” - [311].

[96]However, FJ’s evidence at [FJ/101] is that she did raise this in her telephone call with JD on 25 August 2022. This was confirmed by JD in his oral evidence to us. However, within her evidence on this complaint at [FJ/101], FJ does not report that she told JD that NS had also said that RA was below him. Neither did JD recall that additional phrase being raised with him by FJ.

[97]We therefore accept that NS did use the word “peasant” to describe RA. However we are not satisfied that he went on to say that RA was below him.

[98]The comment of “peasant” was not made about FJ, but simply made in her presence. It was also said in the presence of Georgina who we understand is not British Asian: NS treated Georgina in the same way as he treated FJ, by making this comment in front of them both. 25 August 2022

[99]On 25 August 2022, JD attended the Marlow showroom in order that he and FJ could discuss her complaints about NS – [FJ/98]. We note that we do not have a recording of this conversation.

[100]JD's evidence as to the content of this discussion was that it focused more on the dynamics in the showroom. We find that this is consistent with the tone and content of FJ’s complaint made to JD on the telephone on 16 August 2022. JD told FJ in answer to a question in cross-examination: “You didn’t like how Naz was speaking to you – I remember that, I don’t remember specific words.”

[101]JD did recall two specific examples of words used; firstly he recalled FJ complaining of NS calling RA a peasant. Secondly, JD remembered FJ telling him of another incident when FJ was talking to LS on the telephone and “Naz spoke to you in not a nice way”. This is the conversation referred to at paragraph 69.2 above.

[102]FJ’s account of this conversation is set out at [FJ/98-105]. One specific example FJ recalls in these paragraphs is that she told JD that NS constantly made remarks around women, including “telling me I am like his sisters who he called skanks” – [FJ/100].

[103]The Tribunal finds that, given JD, at this point in time three years later, remembers her complaint of the word peasant, then it is more likely than not that he too would have remembered her complaining of use of the word skank. As such, we find that FJ did not record to JD that NS had said the skank phrase. 25 August 2022 – allegation 4.2.6 – JD asked FJ where she was from

[104]It is FJ’s case that after the conversation between her and JD covering her complaints about NS, JD said to her “so where are you from?” – [FJ/107]. FJ’s evidence is that this was asked by JD on the back of it being part of her complaint to him about NS. In other words, she had just complained to JD that NS had asked her “where are you from?”.

[105]We accept on the balance of probabilities that JD did say this: JD's own evidence to us was that he did not recall or remember this expressly (whereas on other occasions he categorically denied saying certain phrases).

[106]However, we find that the manner in which this was said, starting the question with “So, …”, demonstrates that this question was asked as a direct result of the facts that FJ had just made to JD. In other words, the reason for JD asking this question is that it was a question that had just been discussed in the earlier conversation between JD and FJ. 25 August 2022 – allegation 5.1.7 and 7.1.6 - JD said the following

[107]At this stage, we make some general remarks about the level of personal conversations and casual conversations within the workplace at HJL. We accept the evidence that we have heard from various of the respondents’ witnesses that there were casual conversations about TV programmes, pod casts, and dating, as one might expect in this working climate.

[108]We find that FJ was content to have some personal conversations with her colleagues. For example, she raised with JD the possibility of doing a psychology test with colleagues. Although we understand that there are various interpretations of the test, we consider that FJ’s own interpretation still requires from participants a level of openness and personal disclosure: [FJ/117] explains the test: “1. Name your favourite colour 2, your favourite animal and 3 your favourite body of water: and for each you are meant to give 3 reasons why. The reasons reveal your subconscious. 1 means how you feel about yourself. 2 reveals what you want in an ideal partner. 3 reveals how you feel about life”.

[109]FJ’s own willingness to perform this test on colleagues suggests that she is willing to have, and extract from others, some conversations about matters that could be deeply personal including matters about one’s dating life given the reference to an ideal partner.

[110]Furthermore, we have seen text messages sent by the claimant on 8 September 2022, in which she raises a discussion with JD after work later in the evening about David Beckham’s historic affair. In that conversation, in one specific message, FJ writes as follows: “I remember it very very clearly….It was huge news. Apparently he’s got a distinctive mark down there and it was confirmed by other football players. And there’s only one way she would know something like that…”

[111]When asked what the expression “down there” meant by JD, FJ’s answer was “I don’t recall what I meant”. When asked what that phrase looked like, FJ answered “it looks like how the judge just said it” (the Judge had read out the message in full). These answers appear to the Tribunal to be evasive, and avoiding the obvious explanation and insinuation that the words “down there” refer to, in this context, David Beckham’s genitalia. We find that the claimant did not wish to accept the obvious meaning of her own words as she did not want to admit that she did willingly participate in such casual conversations. The claimant attempted to explain the specific conversation of texts by saying that it was fawning behaviour as recognised by psychologists as being a reaction to trauma. We do not have sufficient evidence to be satisfied that these text messages from the claimant were brought about by her reaction to a traumatic event and as such we reject that suggestion.

[112]Returning to the six specific allegations under allegation 5.1.7 and 7.1.6, we note how JD’s evidence differed when going through the various specific statements. In relation to the majority of them he answered in a way that made it clear he did not consider that they are things he would say. However, in relation to the allegation regarding Love Island and Tinder, his answers were more equivocal. In answer to the Love Island comment being put to him he said: “I don’t think I did, but we did have conversations on TV shows and pod casts. Hypothetically, if I said that why would that be a bad thing.”

[113]JD also mentioned Love Island as an example of TV shows that would be discussed with FJ at work – [JD/p91].

[114]In terms of the comment regarding Tinder, JD’s answer was “I don’t think I did [say that]”.

[115]Tinder is referred to by JD in a telephone conversation he had with FJ on 18 October 2022. We return to this conversation later in its correct chronological order, however it is of import at this stage to highlight the following comment from JD at [227]: “Yeah so say you went out for a meal, went out on a Tinder date, went out for a meal, expense it.”

[116]We therefore find that conversations around Tinder and Love Island had taken place and did take place on 25 August 2022.

[117]We find that these types of conversation are ones that were willingly participated in by colleagues at HJL including FJ. We understand that FJ has never watched Love Island, however this does not prevent her being part of the conversation in which that program is discussed. We also find that Tinder and Love Island are not subject matters that relate solely to women, but to both sexes.

[118]We find that JD made the comments of suggesting that FJ go on Tinder and Love Island. We find that these are types of conversations in which the claimant was a willing participant. We are satisfied that, given the casual conversations that we accept happened in the workplace, this type of conversation happened between colleagues of both sexes.

[119]We found the exchange between FJ and JD regarding Love Island an enlightening one. The exchange was as follows: “FJ: Why did you say “you should go on Love Island? JD: "I don’t think I did, but we did have conversations on TV shows and podcasts. Hypothetically, if I said that why would that be a bad thing? FJ: It is a TV show of people prancing around naked. JD: OR you could see it as a show that finds love. We had casual conversations, but I can’t recall these conversations on these specific dates as you have described them”.

[120]This exchange demonstrates FJ and JD’s differing views or perspectives on the same issue. 25 August 2022 – allegation 6.1.4 – JD looked at FJ’s breasts for too long and leered at her body

[121]We are not satisfied on the evidence that we have heard that JD ever leered at FJ. We find that there are various points in FJ’s own evidence and argument that undermine this broad allegation of leering: 121.1. FJ’s complaints of age discrimination and sexual harassment undermine one another. Chronologically, FJ alleges that JD sexually harassed her, then was disgusted by her once he discovered her age, and yet then sexually harassed her again. When the Tribunal put this inconsistency to the claimant, she was not able to provide an explanation or answer for this. 121.2. One of her complaints about leering is implausible given the surrounding facts. The claimant alleges at allegation 6.1.5 that JD was leering at her and staring at her breasts in the meeting of 1 December 2022 at which her employment was terminated. We have set out our detailed findings on this meeting and the lead up to it below in the appropriate chronological place. However, there were three people in attendance at that meeting, MM, FJ and JD. It appears to be common ground that MM was there at the request of both JD and FJ; both wanting her to protect them from the other and act as a witness to events. We therefore find that it is implausible that, JD having requested MM’s presence to be a witness to events, and by that time having concerns that FJ was going to make a complaint of harassment/discrimination against him, JD would risk leering at the claimant in front of MM. 121.3. We have heard from several of JD’s female colleagues during the course of this hearing. They were all supportive of JD, with nothing to gain from being supportive. None of those individuals suggested that they had ever witnessed any inappropriate behaviour by JD.

[122]We therefore reject this allegation, and all other allegations relating to leering or staring by JD on their facts. 25 August 2022 and 1 September 2022 – allegation 3.2.2 – JD said to FJ that he would guess she was 25 years old

[123]FJ’s allegation is that JD on two occasions guessed that she was 25 years old. JD denies that this occurred.

[124]It is common ground between the parties that, from early on in their working relationship, FJ would refer to having “decades of experience”. In fact, we have a clear example of such a statement in the transcript of the telephone call of 18 August 2022, in which FJ stated: “Like, I’ve been a manager for 20 years”.

[125]Therefore, it follows that JD from an early stage of his management of FJ knew that she had been working for 20 years. It follows that he understood her to be older than him; even assuming she started working at a young age such as 16, this would still make FJ older than JD who, at this stage, was in his late 20s.

[126]It is therefore implausible and nonsensical that he would believe FJ to be 25 and make a serious guess to that effect. We therefore reject the facts of this allegation.

[127]In any event, FJ during the Tribunal’s questions of her conceded that she did not consider the guessing of age to be an act of age discrimination in and of itself. As such we understood that she did not seek to pursue this particular allegation further. 25 August 2022, 5, 8, 22, 23 September 2022, 27 October 2022 and 1 December 2022 – allegations 6.1.5 – JD would leer towards FJ, staring at her breasts, looking the claimant up and down, and from behind

[128]We reject this allegation on its facts, as set out at paragraphs 121 and 122 above. September 2022 1 September 2022 – allegation 8.1.3 – FJ discussed her grievance about NS with RT

[129]FJ’s case is that this conversation on 1 September 2022 amounted to a protected act under s27(2) EqA. At [FJ/129], FJ’s evidence is that RT and JD attended the Marlow showroom to discuss her complaint regarding NS. FJ’s evidence is that she expanded upon her allegations originally made on 25 August 2022.

[130]We have made our findings as to the 25 August conversation about NS above at paragraphs 100-105. On the basis of those findings, we accept that the information FJ conveyed to JD could be a complaint that NS had contravened the EqA, even if solely on the basis of her complaining about NS saying “peasant” and asking “where are you from?”. Although we have not upheld the allegations within this claim relating to “peasant” and “where are you from?", we accept that, in making these complaints regarding NS’s comments, the claimant’s words were her making implicit allegations of discrimination.

[131]We therefore accept that FJ did a protected act on 1 September 2022. 1 September 2022 – allegation 6.1.8 - JD said “you look like you need a hug” and then gave her a hug

[132]FJ’s case is that, following her discussion with RT and JD to explore her complaints about NS, JD said something like “well done”, followed by “you look like you need a hug”. Despite FJ saying “No, I’m ok”, FJ says that JD then said “I feel to give you a hug”, to which FJ again responded with “No, I’m ok”. FJ’s case is that JD then forcibly hugged FJ – [FJ/139-145].

[133]JD denies this allegation. His evidence was that he may have said, if observing that FJ was upset “you look like you need a hug” as it is in his nature to check if people are ok in such a circumstance. His evidence was that he would not hug anyone who had indicated that they did not want a hug. He further responded in cross-examination to FJ that “I don’t think I have ever had any physical contact with you”. JD went on to say that “I am aware of FJ’s boundaries”. We find this to have been credible evidence as JD went into some detail on the cultural norms and his awareness of them as set out in this answer in cross-examination: “I am just aware when I first met people, I observe how they are. In Spain, they hug and kiss on the cheek, but with FJ and NS, on the first time meeting them, I am waiting for them to show me how they greet me so I know how to be moving forward. With FJ, I was aware we didn’t shake hands and I hadn’t seen her hug anyone, so I would have had an understanding”.

[134]FJ made various complaints about JD later on in the chronology, namely in emails on 2/3 November 2022, and in meetings with MM on 7 and 15 November 2022 – evidence at [236-239] (emails), [692] (emails), [732] (MM’s notes of 7 November), [242] (FJ’s notes in advance of 7 November), [739] (MM’s notes of 15 November). None of these contain reference to this alleged hug incident.

[135]In relation to MM’s notes of 15 November 2022, we understand that FJ disputes these as being accurate. However, her own account of the 15 November 2022 discussion at [FJ/371-389] does not contain reference to the hug allegation being raised on 15 November 2022.

[136]Therefore, the first time that FJ raised the hug allegation to the respondents was following her dismissal. On 2 December 2022, the day after her dismissal - [1024].

[137]Furthermore, FJ’s account in her witness statement is that JD said “I feel to hug” – [FJ/139]. This phrase is a strange, unnatural phrase to a native English speaker. A more natural phrase would be “I feel you need a hug”. FJ in her witness statement goes on to say that she has an adverse reaction whenever she hears a man say “I feel”.

[138]However, the Tribunal has seen that “I feel to…” is a phrase that FJ used in a text on 7 September 2022 at [345]: “I feel to speak to Matt”. FJ told us that English is her fifth language. Of importance is the timing of this text: it is sent a matter of days after the alleged hug, and at a time when FJ has told us she was (and remains) triggered by the phrase “I feel”.

[139]We find that the phrase “I feel to hug” is not a phrase said by JD. We find it more likely than not that this is a phrase that FJ would use.

[140]Finally, following this alleged incident, there were several occasions when FJ had lengthy and friendly conversations with JD, and attended a cooking class with him (along with other colleagues) – see transcripts of conversations on 8 September 2022 [185], 20 September 2022 [204], 17 October 2022 [221], 18 October 2022 [224].

[141]FJ has explained in general her friendliness towards JD as being her amygdala response to the trauma he inflicted on her. We have no expert evidence, and no evidence within the bundle as to the amygdala’s initial survival reaction in the moment of trauma, and how long after the trauma the amygdala response dominates one’s rationale and reasoning.

[142]In light of the above, we find that FJ was upset following the discussion with RT and JD about NS, and that JD asked something along the lines of “do you need a hug?”, an offer which she declined. However, we reject the allegation that he went on to forcibly hug FJ as she alleges. We therefore reject this allegation on the facts. 8 September 2022 – allegation 3.2.3 – after being told SJ was 39, JD reacted as if shocked and disgusted 8 September 2022 – allegation 3.2.4 – JD got up and left abruptly

[143]It is FJ’s case that JD said again that she looked 25, and when FJ said no, he started counting up from 25. Her statement reads as follows: “190. He was surprised that I was older than him and even commented on it saying “you can’t be older than me”. He was 27 years old at this time. “28, 29, 30”. His eyes were popping out of his head at 30. Then “31” and he stopped at “32” with a mortified expression, his jaw dropped and his eyes bulged out. … I volunteered “I am 39”… 194. I couldn’t believe his obvious disgust and visceral reaction to my age”.

[144]JD denied this exchange in its entirety, saying in evidence to us “this never happened”.

[145]We return to our findings at paragraphs 123 to 126 and specifically our finding that JD knew that FJ had been working for 20 years, and so must have been older than him. We therefore find it implausible that this allegation would have occurred as FJ suggests.

[146]We also return to our earlier assessment that FJ’s age discrimination and sexual harassment complaints are inconsistent – see paragraph 121 above. That inconsistency undermines both claims. The suggestion that JD sexually harassed FJ after this incident is entirely inconsistent with the suggestion that he found her age disgusting.

[147]Following this alleged exchange about her age during the working day, the Tribunal has seen a text exchange on WhatsApp, instigated by FJ at 2043hrs. This is an exchange about an article regarding the alleged affair between David Beckham and Rebecca Loos – [557-559]. This had apparently been the topic of a discussion between FJ And JD at work.

[148]Within the text exchange, FJ herself raised the issue of JD’s age, starting the conversation by attaching the article, stating “[h]ow little were you in 2004? [emoji face with tongue sticking out]”.

[149]The Tribunal considers it implausible that, had this allegation taken place as FJ alleges, she would have voluntarily reopened a casual, light-hearted conversation from work during the day via WhatsApp at 2043hrs the same evening.

[150]As above at paragraph 111, FJ relies upon the “fawning” response as an explanation for the text exchange. For the reasons we have already set out, we reject this explanation.

[151]We therefore reject this allegation on its facts. 20 September 2022 – allegation 8.3.1 – JD said the business were not taking into account all the points she had raised in her grievance, and that they were only considering the incidents which have witnesses. He told her she would need to make a formal complaint if she wanted a different outcome and that she needed to be seen to make an effort as NS was reporting her behaviour

[152]This allegation relates to a telephone call that FJ had with JD following up on the complaints that she had previously made about NS. We have a transcript of the record of this conversation on [204]. The relevant parts are at [206] and [208]: “JD: …I’m trying to remain [as] unbiased in this as possible but also trying. It can. The difficulty is we need I suppose proof. I don’t want it to be a he said she said situation and um it looks like he is possibly fuelling your sort of the email looks your bickering in the email I was cc’d on um and…” “JD: So I know, you don’t have to be friends but do you think you could make an effort in terms of trying to start a conversation. Genuinely try and start a conversation or like try and get on with him. So you can effectively say that you tried to make an effort”. “JD: But if you’re not happy with how things have. If you want to go down a formal route of a full HR investigation and all of that or a case of speaking to [RT], but were tryna [sic] avoid that because it will just end up being on who was there. It’s going to end up being on the 2 evidences. ...”.

[153]We therefore find that something analogous to the alleged wording of allegation 8.3.1 was said. The issue then becomes why it was said.

[154]At this stage in the chronology, FJ had raised concerns to JD about NS, as set out above. Likewise, we find that NS had, in response to being alerted to FJ’s complaints, also made complaints to JD about FJ’s conduct towards him (NS). For example, FJ sets out one such example in the 20 September conversation at [207] when FJ went to NS’s desk to pick up a customer form, to which NS responded “stop touching my things” and “this is my paperwork, get [sic] print off your own”.

[155]JD goes on in the transcript to say: “I do think you’re looking at the negatives a bit too much but I don’t believe [NS] is completely innocent in all this as well”.

[156]We accept that this statement accurately reflects JD’s understanding of the office environment at Marlow: in other words, that both individuals were contributing to the tension and friction in the workplace. Whether this was indeed an accurate reflection or not, we find that this was JD’s genuine interpretation of the situation in light of his words in this conversation. This was the reason he was attempting to seek an informal resolution and arguably discouraging FJ from making a formal complaint. 21 September 2022 - 30 September 2022 – allegation 3.2.5 and 8.3.2 - JD referred to the claimant as “crap" and used the words “fault" and “bullshit” a lot towards her Specific examples are as follows: - allegation 3.2.6:3.2.6.1 Whilst discussing the fact that a customer had yawned at FJ, JD said “coz you’re crap, it’s your fault”;

3.2.6.2 In discussing a photo being added to a virtual demo, JD said “what difference does a photo make, there’s nothing wrong with the demo, you’re crap, designers sell from the demo all the time";

3.2.6.3 When discussing a discount of £2,500/£3,000, and FJ saying that this was a small discount, that she had been asked for discounts of more than £10,000 before in this area, that she knew people who spent £20,000 on a meal, and that she had had customers who spent £17,000 in John Lewis, JD said “bullshit”

[157]FJ sets out her evidence on this allegation at [FJ/221-231/252] and [FJ/362/380/511-512]. All three specific allegations 3.2.6.1 - 3.2.6.3 are covered in her witness statement.

[158]Within the bundle, we have one example of JD using the word “fault". That is at [684] and relates to sales technique. This document is an email sent from JD to FJ on 28 September 2022, in which he states: “Hi Farah, This goes to anyone working with clients/in sales and the harsh or sweet reality of what we do; You are accountable and responsible for everything, good and bad. If a client isn’t engaged, that’s our fault, responsibility and we are accountable for that. The word fault is negative but used to make us see that we train our clients to react and respond in a certain way. I got taught this from my previous manager, when I approached the customer and they responded with “just looking” again, that was my fault because whatever I said, asked, did, wasn’t good enough. Some designers are great at staying in control, in a polite way, and others get caught telling/selling. The pro’s get really good at asking questions and listening, it’ll help make things a lot easier and you have more information to use to help close more sales".

[159]In terms of the contemporaneous evidence, the claimant references in her witness statement various text messages to her colleagues in which she alleges that JD called her crap and said certain things were her fault: 159.1. 22 September 2022 - [365] - “crap"; 159.2. 23 September 2022 - [366] - there is in fact no reference to the use of “crap” or “fault” in this message; 159.3. 28 September 2022 - [368] - “crap and fault”; 159.4. 5 October 2022 - [566] - “crap" regarding virtual demo and logged on EQ (duplicated at [375]);

[160]FJ also alleges that she told the following people about JD’s use of the words “crap, fault, bullshit": 160.1. MD in a discussion on 18 October 2022 - [FJ/252]; 160.2. MM in a meeting on 7 November 2022 - [FJ/362].

[161]We have no evidence from anyone else, whether in documentary evidence or oral evidence, to support the claimant’s case on these allegations.

[162]We accept that it is more likely than not that JD used the words “crap” and “fault” when discussing work with FJ, but we are not satisfied that they were said in the context put forward by FJ. On the one documentary piece of evidence that demonstrates JD’s use of the word “fault”, we are satisfied that his use of the word relates to the sales team taking responsibility for missed sales or missed opportunities to sell. We do not accept that JD used the word “bullshit" in relation to FJ: there is simply no good supporting evidence so support FJ’s assertion.

[163]The claimant says that this is an act of age discrimination and victimisation. We will return to the relevant causal link between JD’s use of the words ”crap” and “fault” and FJ’s age and/or protected acts in our Conclusions below. October 2022 10 October 2022 – allegation 8.1.5 – FJ emailed MD to discuss her grievance about NS

[164]FJ sent MD an email regarding her grievance about NS. The relevant email is at [219] and states as follows: “Hi Matt, How are you? I’m on annual leave at the moment and will be back on 17th Oct. I have training on [sic] London on the 19th in Hampstead. The training finishes at 4pm, is there any chance I could meet you after this? I would like to talk about a few things. If your [sic] available. Regards Farah"

[165]There is nothing within that email that gives any information, whether express or implied, that could in interpreted as alleging that someone has contravened the Equality Act 2010. There is no information in the email at all about the fact that FJ wanted to talk about NS, let alone what it was about NS’s conduct that she wanted to discuss. 18 October 2022 – allegation 8.1.6 – MD called FJ to discuss the grievance further

[166]It is FJ’s case that MD called her on 18 October in order to discuss the complaint about NS further. We have not got a recording or transcript of this conversation. It strikes us as odd that either the claimant did not record this conversation or she did not disclose it, given she had on that same day recorded a conversation with JD.

[167]FJ’s evidence on this conversation is set out at [FJ/248-253]: she says that the conversation on the showroom phone lasted about 40 minutes. Considering what FJ says she conveyed to MD in that call regarding NS, she does not stipulate in her witness statement any complaint she made against NS in that call. Her statement mainly addresses the exchange between FJ and MD regarding the aftermath of FJ’s complaint about NS. We can see nothing in the conversation regarding NS that could be understood to be an allegation of a breach of the EqA by NS.

[168]Turning then to what FJ told MD about JD, FJ recalls as follows - [FJ/250]: “I said that isn't why I wanted to speak to you, it was because since that period the second respondent has been different towards me. He asked how, I spoke about how his tone has changed and the language he was using." “I said no this is not banter but name calling. He asked for examples and I gave some; the same as stated above but not all. There was another gap as he seemed to consider this information. He said that JD should not be calling people crap, “it shouldn’t be happening".”.

[169]Notably, from the claimant‘s own volunteered recollection of that conversation with MD in her witness statement, she does not say that any name calling was because of her age, or any other form of discrimination or harassment. 18 October 2022 – allegation 6.1.6 – JD said I should take him out then said “next time you go on a date you can pay and keep the receipt to expense it or treat me to lunch when I’m next in Marlow”

[170]A conversation took place on the telephone between JD and FJ on 18 October 2022: JD called FJ. FJ recorded this call and we have the transcript at [224]-[228]. We have listened to the recording again, and find that the tone of the call is friendly as between the two individuals.

[171]The part of the exchange relevant to this allegation is at [227]. The conversation turned to a bonus payment from HJL to the Marlow showroom as a reward for good TripAdvisor reviews. JD conveyed that this would be split between NS and FJ, and FJ queried how she could spend it. The conversation went as follows: “FJ: Yeah so with regards to that, how can I spend it? JD: So you can have it transferred into your account just be mindful that you will be taxed on that. Or you could just expense it so either you can go out for drinks or something and then just send the receipt into accounts and then expense it. FJ: Yeah you still have exclude VAT as well on that don’t you. I thought. JD: You have to what sorry, on expenses you don’t pay tax on it. FJ: Oh so I could get more so I can go on Saturday get myself some nice food and the company will pay for it. Is that right? JD: Yeah so if you FJ: I’m tryna [sic] figure out how I can spend it. JD: Yeah so say you went out for a meal, went out on a tinder date, went out for a meal, expense it FJ: Where did that come from JD: But yeah FJ: First of all I’ve never paid for a meal with a man so, don’t know how that’s gonna go. JD: Fair point. Fair point. Um well I mean you could uh FJ: Or I could just treat myself James. JD: You could wait until I’m in the showroom and you could buy me lunch and you can expense it that would be amazing. FJ: Ok sounds cool. I don’t. I’m only happy with taking my 5 star review money anyway. So if I’ve got half of it that’s fine. Happy to blow. ..."

[172]We heard evidence from GM that members of staff went for lunch together and would expense it. We also know that Georgina expensed the drinks when she, FJ and NS went out for drinks after work as described earlier in this Judgment.

[173]We also repeat our earlier findings regarding FJ’s willingness to participate in casual conversations including about personal matters with her colleagues.

[174]FJ once again sought to suggest that her apparent willingness to take part in this conversation was her amygdala response to the trauma she had experienced by JD’s hug. We have found that the hug allegation did not occur as FJ alleged. In any event, we have already set out that we have no expert evidence to explain to the Tribunal the scope of the nature of the amygdala’s response to trauma – see paragraph 141 above.

[175]We note that FJ appeared somewhat surprised by the Tinder comment, her response being “where did that come from”. However, surprise is not akin to considering the conduct to be unwanted. Following this call on 18 October, the claimant made various complaints about JD as follows: 175.1. FJ email to MD on 2 November 2022 – raising concerns about her probationary review - [236]; 175.2. FJ email to MD, MM and RT on 2 November 2022 – raising concerns about the probationary review again – [238/239]; 175.3. FJ’s “note to self” of matters she wished to discuss with MM in a meeting on 7 November 2022 - [242]; 175.4. MM’s note of the 7 November 2022 meeting - [732]; 175.5. The note of the meeting on 15 November 2022 between FJ, MM and RT – [739].

[176]On the above evidence, we find that FJ did not complain about the contents of the telephone call of 18 October 2022 between JD and her.

[177]We are not satisfied that JD’s comments in that call amount to unwanted conduct. Despite the note of surprise in FJ’s response to JD’s Tinder comment, she went on in the conversation to reference (even if obliquely) dating by saying that she had never paid for a meal with a man. This appears to us to be taking part in a conversation, and does not convey that JD’s comments were unwanted.

[178]We will turn to the question of whether this conduct by JD was of a sexual nature, and the effect of the conduct in our Conclusions. 27 October 2022 – allegation 8.3.4 - JD undertook the claimant’s probationary review 19 days early and spoke over her

[179]FJ alleges that her probationary review should have been on 14 November 2022, which is the date that appears on her review form at [229]. This form was completed on 27 October 2022. In terms of reference to dates, the form at [229] records 27 October 2022 as being “date of review” and 14 November 2022 as being “date probation review due". It is factually correct therefore that the review took place 19 days earlier than scheduled.

[180]JD’s evidence to us was that he always undertook his reportee’s probationary reviews between 3 and 4.5 months of employment with HJL. Furthermore, he explained that as a general rule he did his reviews with the sales designers at the end of the month, and those with the administrative staff at the beginning of the month. This timing in relation to designers’ reviews enabled him to work with them to see if they could achieve any last minute sales at the end of each month. We accept this evidence, it provides a credible reason that is not contradicted by any other evidence.

[181]We also had evidence from SB that he undertakes his probationary reviews at any time, and when he remembers. This indicates that it was not unusual for RSMs to stray from the strict timetable of 4.5 months for a probationary review.

[182]In terms of other documentary evidence, the claimant’s offer letter at [146] stipulates that the claimant’s probation period would be 4.5 months.

[183]Factually, the review meeting took place some calendar days earlier than scheduled. However, this is an allegation of victimisation and therefore we need to consider the reason why this was done. The claimant’s case is that JD brought forward her probation in response to her complaint about him, that being her conversation with MD on 18 October (issue 8.1.6). There is no good evidence to suggest that this was the reason. We find that the reason for JD holding the meeting when he did was that his habit was to hold his meetings with his designers at the end of the month; this was therefore a natural time for him to hold the meeting with FJ, in order that he could see whether they could work on closing any last minute sales for October.

[184]There is a secondary part to this allegation, that JD “spoke over” the claimant. This was not particularly explored in the evidence, the focus being on the targets set. FJ’s evidence on the probation meeting is at [FJ/285-306]: FJ’s recollection of the discussion between her and JD demonstrates that she was able to answer and respond to the points JD raised for discussion. There is nothing in FJ’s witness statement to suggest that JD talked over her during this meeting. We reject this allegation on the facts. 27 October – allegation 8.3.5 - JD set unachievable targets in the probationary review meeting

[185]FJ clarified that the alleged unachievable target set in the probationary review meeting on 27 October 2022 was the “expectation” of 3 kitchen sales as referenced on [233]. The review paperwork follows the reference to “3 Kitchen Sales” with “including October sales”, and places the date of the next probation review as being 28 November 2022. We find that therefore the target was to complete three sales between 1 October 2022 and 28 November 2022.

[186]FJ’s view on this target is that “[she] can’t time travel” and so she was expected to obtain three sales in one month. In other words, as at 27 October when she was given this target, she could not go back to the beginning of October and push for more sales. However, we accept that it would have been possible for some sales to come in within the last few days of October, following up on demos that had taken place earlier in the month. This logic is proven by the fact that FJ closed a sale on or around the last day in October – see her email at [236] ”I sold my first kitchen yesterday".

[187]In any event, we consider that FJ from the beginning of her employment put everything she had into obtaining sales: that was the job and that is what drove the sales designers generally, given their pay is very much commission heavy. It is therefore far from clear that, had she been told of this target at the beginning of October, she would have taken steps additional to those she already had taken to secure sales. In other words, we find that there would have been no difference in her performance had she been told of the target at the beginning instead of near the end of October.

[188]We therefore find that the target set was three sales over two months (minus a day or two). This is 1.5 sales per month. At this point, HJL’s company average for monthly sales was 1.57 per month – see the RSM training slides at [727], training delivered to RSMs in October 2022. As such, the claimant was in fact asked to perform to just below the company average as at October 2022.

[189]We therefore reject this allegation on its facts. The claimant was not set unachievable targets in her probationary review meeting.

[190]We make a related observation at this juncture. It is common ground that, as at the date of her probationary review, FJ had not closed any sales. We find that sales are what drive the sales designers, the RSMs and HJL more generally: it must be so. We are therefore confused about what the claimant expected from this review meeting: she cannot have reasonably expected high praise given she had zero sales at this point. November 2022

[191]On 2 November 2022, FJ emailed MD to complain about JD and the probation review that had taken place on 27 October 2022 - [236]. She also records in that email “I sold my first kitchen yesterday". Later that day, MD responded, copying in RT and MM, firstly congratulating FJ on her sale and secondly signposting her to discuss any concerns with MM as JD’s line manager.

[192]FJ then replied to all three recipients, stating she would get in touch with MM. She duly did this on 3 November 2022 at [692], asking MM for a meeting “to discuss some things".

[193]On 7 November 2022, FJ met with MM to discuss her concerns about the probation review. FJ made a note in advance of that meeting to organise her thoughts as to what she wanted to discuss. That note is at [242]. MM’s note of the meeting is at [732]. Both documents demonstrate that the main topic of discussion was FJ’s probationary review meeting, JD’s conduct in that meeting and FJ’s view that she was not getting any Oxford leads.

[194]On 11 November 2022, RW stopped off at the Worcester showroom - [RW/p113]. LS told RW that she feared FJ was trying to frame JD for sexual harassment – [LS/p108]. As RW had never met FJ, she asked LS to expand on this concern. RW records in [RW/p113] the following: “ Louisa explained that Farah had joined the company at the same time as her, and that she was in frequent contact with her. Farah would also regularly call Louisa via Teams. She explained that Farah would regularly make what Louisa felt to be “odd comments”, but she had just taken them with a pinch of salt until now. She went on to tell me that she was feeling increasingly uncomfortable with her relationship with Farah and felt that Farah was trying to involve her in a situation that she did not want to be any part of. To my horror she then told me that she believed Farah was trying to frame James for sexual harassment. She had concluded this from statements and threats that Farah had made to her, at the detriment of James....”.

[195]LS documents her concerns in her witness statement as follows - [LS/p108]: “By October-November 2022, Farah;s negative commentary began to centre on James. She frequently criticised his management, undermined his leadership, and implied he lacked competence. Her remarks in the WhatsApp group grew in frequency and severity as her probation progressed, to the extent that it felt like she was deliberately documenting a trail of messages and emails to be used in the future. It gave the impression she was planning to raise formal allegations to discredit James or the company. Farah explicitly stated in the group chat that and on personal phone calls, should James end her probation, she would accuse him of sexual harassment/discrimination".

[196]LS then goes on in her witness statement to refer to various WhatsApp messages that we have seen in the bundle: 196.1. “I’m going to use that in my sack meeting”; 196.2. “I should fuck James over”; 196.3. “Scare some discrimination shit into them”; 196.4. “I should and could have played the victim card".

[197]We also note a WhatsApp message sent the day after FJ’s probation meeting, on 28 October, in the WhatsApp group - [406]: “I’ve woken up so fucking angry! If they don’t have the same convo with you guys as well, I’m going to scream discrimination!”

[198]By this time in the chronology, FJ’s communications to her two colleagues in that WhatsApp group were aggressive and insulting towards the company generally too. For example – [412]: “I don’t know, maybe it’s always been a shit place. Maybe that’s actually why they had soooo many vacancies. ...”

[199]We accept that LS held genuine concerns about FJ’s conduct, and that those genuine concerns then passed to RW.

[200]As a result, RW then telephoned JD – [RW/p113]. After that call, RW texted MD to ask for a call with him as soon as possible. MD then called her back and she explained her concerns and those of LS.

[201]We accept that RW’s perspective was reasonable, regarding the severity with which she took LS’s concerns and duly passed them on to MD. We accept that there were telephone calls that took place between LS and FJ in which FJ complained about JD and HJL more broadly: however on the WhatsApp messages alone, we find that there was evidence of the claimant having an intention to retaliate against JD following the probation review he had with her. We find that FJ made an active decision following the probationary review, to pursue allegations against JD labelled as sexual harassment/discrimination. As RW said in evidence to us, “that is exactly what she [FJ] did”, demonstrated by the very fact that she brought a claim for sexual harassment.

[202]Once JD was made aware from RW about the concerns she had, he emailed MM and RT on the same day (11 November 2022) - [693]. The tone of this email demonstrates to us that RW’s genuine concerns had been passed on to JD; that he was apprehensive about the information he had obtained from RW regarding FJ’s behaviour. This is highlighted by his last sentence, which is a recollection of a conversation he had with MM just prior to sending this email: “...I called [MM] ...I wanted to let her know as I am in Marlow on Monday 14th November for interviews felt uncomfortable being in the showroom by myself”.

[203]We take from this that JD was genuinely nervous about being in the showroom with FJ on his own.

[204]On 14 November 2022, SB held LS’s probationary review with her, and extended her probation. It was initially extended to 19 December 2022, then extended for a second time to the end of January 2023/start of February 2023 – [1090].

[205]On 15 November 2022, LS emailed MD, frustrated that her confidence had been breached by RW, and not wanting to get involved - [695].

[206]Later, on 15 November 2022, a meeting took place in the Marlow showroom between FJ, MM and RT. A record of that meeting is at [739] (duplicated at [1091]). We accept the content of that record as being accurate on the balance of probabilities. The claimant has not provided her own note, and she did not record the meeting. She has not specified any particular part of the notes that she disagrees with. 15 November 2022 – allegation 8.1.8 – FJ complained of sexual harassment from JD to RT and MM

[207]Looking at the record of the meeting, we accept that this amounts to the claimant complaining of JD breaching the Equality Act 2010. In fact, Mr Ogunshakin accepted this when specifically asked by us. The factual allegations set out at bullet numbers 1-5 on [739], taken together and particularly highlighting 2 and 5, are enough to amount to a protected act for the purposes of s27 EqA: “1. that JD said she should “go on Love Island” 2. That JD asked her if she was single 3. That JD asked her about her age... 4. That a situation arose regarding a psychological quiz... 5. That JD was “checking me out””.

[208]The note of the meeting records that “FJ at first appeared surprised at the reason for the conversation. The term FJ used when describing the following was “borderline” - [739]. This demonstrates to us that the conduct of discussing Love Island (factually the only point we have upheld) was not considered by FJ at the time to be particularly serious, given she referred to it as “borderline”.

[209]In fact, the content of the notes reads as being consistent with the respondents’ position that the claimant only really began raising complaints about JD in response to the probation review outcome not being as positive as she wished. For example - [739]: “FJ then spent a long time discussing her dissatisfaction with the outcome of her probationary review meeting...and how she believed JD was unfair in his expectations of her regarding sales during the extended probationary review”.

[210]On 16 November 2022, MD emailed MM and others to hold a meeting at 0945hrs regarding the issue between FJ and JD - [695]. He forwarded LS’s email of the day before, stating: “...I’m mindful there are layers of hearsay being added in all the time but, if what [RW] says is to be believed, [FJ] has had a pretty disingenuous conversation with [LS] and is entirely inappropriate for the impression it creates about how the company has dealt with the situation and [JD’s] conduct”.

[211]On 18 November 2022, FJ and MM spoke on the telephone. In her evidence, FJ said she found this call helpful and reassuring, as she understood from it that MM thought the same as FJ in terms of sales tactics about her customers attending for appointments.

[212]On 25 November 2022, RT attended the Marlow showroom – [FJ/409]. FJ’s account is that they discussed some things she had forgotten in their meeting on 15 November 2022, however she does not set out in her witness statement what those things were.

[213]On 30 November 2022, JD emailed MM and RT FJ’s performance figures – [741-742]. Those are the figures we have analysed above at paragraphs 47 to 57. 30 November 2022 – meeting at which the decision was made to dismiss the claimant

[214]On 30 November 2022, JD, MM, DW, MD and RT held a meeting at which it was determined that FJ would be dismissed for failing her probation/underperformance. First, we need to determine the identity of the decision-maker.

[215]Generally, we find that a probation decision would be taken by the RSM. However, we find that JD by this stage simply did not want to make any decision about FJ’s job, given what he had heard from RW. He told us in evidence that: “I didn’t feel comfortable at all making a decision on that. so I already asked Maria to come with me to the show room in Marlow that month but Darren made the decision and I was the messenger with Maria, and Maria led the final meeting.” ... “I didn’t want to make a decision as I knew about the gossip and rumours that, if I ended probation, a claim of sex harassment would be put on me”.

[216]We heard from MM that she did not know what to do. Effectively, JD had deferred to MM, and MM was equally disinclined to make the decision as to FJ’s future. This was due to RW’s warning to JD, but also due to MM’s own personal concerns regarding her sister’s health and welfare. JD was consistent in his evidence in his two witness statements and oral evidence about his involvement and his feelings regarding the final dismissal decision.

[217]DW told us in evidence that he is called in to make decisions when no-one else is able or wants to. He sets out at [DW/8]: “In this instance, I cannot be certain if I made the final decision or not, but if there was ever any doubt as to what to do and the regional manager needed support or guidance to make that decision, then more often than not, I would make that decision by looking at what the data was telling me and I would make the final decision on the business’s behalf. In this instance, due to the passage or time I cannot say with 100% certainty that it was me that made the final decision, but, the meeting took place as described and if there was a question as to what to do, I would have made the final decision to terminate and [RW] would have drafted the letter to be given to the employee. ...”

[218]We accept this evidence, that ultimately DW was the decision-maker. We consider that DW has no reason to lie, to cover up for someone else’s decision making. He is no longer employed by HJL and has no loyalty to any of the respondents. Furthermore, if DW has lied in his statement and evidence to us about making the decision, he would have had to also have lied about attending the meeting on 30 November 2022 in the first place. That would mean his whole statement was fabricated: we find that implausible, that he would so overtly lie when there is nothing for him to gain and no particular loyalty to so motivate him.

[219]Furthermore, given that the claimant was not part of the meeting on 30 November 2022, she cannot provide any positive evidence in order to challenge the respondents’ case.

[220]We accept that DW was the decision maker and made the decision to dismiss the claimant. The next question for us is the reason why DW made that decision.

[221]We find it more likely than not that, either before the meeting or at the beginning of the meeting, DW would have sought an explanation as to why his presence was required at the meeting, given that probation of Sales Designers was generally far below his pay grade unless the RSM cannot or will not make such a decision. It therefore follows that, on the balance of probabilities, there must have a level of conversation about the concern that FJ was going to raise a sexual harassment or discrimination complaint about JD. We therefore find that DW knew of the respondents’ concerns around potential complaints, and therefore their concern around making a decision over FJ’s probation.

[222]However, in terms of specific knowledge of any of the claimant’s protected acts, we are not satisfied that he knew of the specific protected acts that we have upheld. We do accept that, on the balance of probabilities, DW was told that there were concerns that FJ was going to raise a complaint or claim of harassment and/or discrimination against JD and or HJL.

[223]DW could not remember exactly what information he had before him in the meeting of 30 November 2022. He told us that in such a circumstance he is generally provided with KPI information by the RSM or RT. Although he could not remember specifically, DW explained that it was unlikely that he would have looked at other Sales Designers’ figures when considering FJ’s performance. His viewpoint was much broader than FJ’s: he explained that he generally had access to information regarding 60 Sales Designers, and did not just have a couple in mind, like FJ did.

[224]We find it more likely than not that the figures on [741-742] were either put before him or summarised to him: he must have based the decision on something, and we accept that both JD and MM were very careful not to offer any opinion on the claimant, in light of the information that had been heard from RW.

[225]We find that DW determined that FJ was not performing to the standard expected of Sales Designers. On the figures we have found were presented to him, FJ was in the bottom 20%, and at the bottom of the designers in the West. It was agreed that DW had never met FJ before he took part in the 30 November meeting.

[226]We are satisfied that FJ’s performance was the reason DW decided to dismiss her. We are further satisfied that any knowledge he had of potential complaints about JD and HJL did not influence him at all. There is no good evidence at all before us to suggest that FJ’s race had any influence on DW’s decision-making.

[227]FJ has raised LS and GM as comparators in relation to her dismissal being an act of race discrimination. We therefore consider whether their performance was considered by DW as the decision maker. First, their data is not included on the information sent at [741/742]; they are not in the West region, and so are not part of the data capture in that documentation. The claimant’s position is that her performance should have been compared to LS and GM, as they all started at the same time. However, we have heard no good evidence to suggest that performance was measured in a relative manner: there was a set target for designers, and that was the objective target. There has been no suggestion that designers were rated against each other.

[228]Further, LS and GM were under a different region, and therefore under a different RSM, namely SB as opposed to JD. Therefore, LS and GM were in materially different circumstances to FJ.

[229]In any event, all three designers had their probation periods extended for different reasons (and by different RSMs).

[230]We consider that, factually, DW did not compare the claimant to LS and GM. Furthermore, we find that there was no good reason why he would so compare the three individuals, given the fact that performance was objective, not relative, and in any event FJ was in different circumstances to LS and GM.

[231]FJ further challenged the respondents’ position that her performance was sufficiently poor so as to dismiss her. Specifically, she commenced the case by asserting that, by the time of her dismissal, she had made three sales and so met her target.

[232]The figures that DW relied upon in dismissing the claimant are those at [741/742]. Those figures show she made two sales in 3 months, giving her average monthly sales of 0.67. The claimant accepted in her evidence that this average was accurate. In fact, the claimant was employed for a total of 4.5 months, and made 2 sales, meaning that her average monthly sales was in fact the lower figure of 0.44. We will return to the actual number of sales that the claimant made shortly; however, even if the claimant was right and she made 3 sales during her employment, her average monthly sales still fell below the required target. Three sales in 4.5 months of employment gives an average of 0.67 sales per month.

[233]In terms of the number of sales that the claimant made, there are three sales for which the claimant initially took credit. We explored with the claimant what she considered constituted a confirmed sale: her evidence on this topic evolved during the course of her evidence. Initially, she said that one would count a transaction as a sale when the deposit had been taken. However, she then said that there was some paperwork that needed to go with taking the deposit, but she was unclear as to what the paperwork was. When it was put to the claimant that colleagues would take payment of deposits for each other, but did not then claim the sale, the claimant said “I put in lots of work”. It therefore seemed that the claimant was, by this point, suggesting that whether an employee claimed a sale would come down to something more nebulous and subjective that just paying the deposit and/or doing some paperwork.

[234]The respondents’ evidence on when a sale is confirmed came from JD, who explained that it was confirmed on the taking of the deposit and the completion of the Order Confirmation form. We accept that this is the definition of making a sale. If it were just the payment of deposit, with no confirmation (which is essentially a contract for the provision of a kitchen), there would be no enforceable agreement for either the customer or the HJL. If, as the claimant suggests, a sale was determined by the deposit being taken and then on a measure of how much work an individual had put into the sale, this leaves the ownership of a sale open to interpretation and a subjective element that is not capable of being judged fairly or independently. We find that it is more likely than not that a sale occurs on the point of payment of deposit and completion of an Order Confirmation.

[235]The first sale chronologically that the claimant initially claimed is subject to some debate. This sale is the sale that is the subject matter of the Order Confirmation at [582]. The sale is recorded as taking place on31 October 2022, the customer’s initials are DS, and the deposit of £1500 has been recorded as received. The designer’s name is recorded as Hagar Hassan in the Milton Keynes showroom. That Order Confirmation bares the signature of the customer, dated 1 November 2022. The claimant’s case is that this Order Confirmation has been altered deliberately by the respondents to cover up the fact that this was her sale. However, we consider the contemporaneous evidence we have, namely a text exchange between JD and FJ at [615] as follows: JD: Hagar has just gave some really great feedback about how you looked after her clients. Well done! FJ: Yeah just gutted its not for me. But good to know I can sell, had to demo bits through to close! JD: I’ve respondent with Matt and Maria in to see the feedback. Of course, just keep building up a pipeline. It’ll click and then a boat load of sales will come your way.

[236]On being asked about this exchange, the claimant attempted to suggest that the “it’s not for me” referred to the claimant not having the ongoing project management of the sale. However, we find that this would be a contrived meaning to give to the words used. The natural reading of the claimant’s message set out above is that she understood that the clients were Hagar’s and that the sale was not hers to own.

[237]In her evidence, the claimant explained that she had talked to Hagar about the client named on the Order Confirmation at [582]. In short, Hagar was not available to take a deposit, and so the claimant agreed to do the same. The agreement between the two Sales Designers was that they would split the commission 50/50. The claimant kept returning to this conversation as support for her proposition that she could then claim the sale. We find that discussion around the commission is far removed from a promise by Hagar to “give” (our word) FJ the sale. On this point, we considered the claimant’s evidence to be more evasive and changeable than on other points in her evidence. She also had a tendency not to give a straight answer to a question when on this topic of claiming ownership of this sale. We are satisfied that this sale to DS was owned by Hagar, and that FJ had simply taken the deposit for her: we heard uncontested evidence that this was done between colleagues. We are further satisfied that the claimant understood at the time, and subsequently, that this sale was not hers, but Hagars: however, she continued to claim it as her own in an attempt to bolster her performance figures.

[238]Returning to the point of this analysis, and DW’s reason for dismissal. We find that the claimant’s figures placed before DW were, if anything, generous towards her and that, had the figures been accurate, her performance figures would have been even lower. The figures in front of DW were not manipulated and demonstrated that FJ feel significantly below the company average set for number of kitchen sales per month.

[239]We are satisfied that DW’s reason for dismissing the claimant was indeed her performance, and failing her probation period. 1 December 2022 – allegation 4.2.8 and 8.3.6 - the claimant failed her probationary period and was dismissed

[240]Following the 30 November 2022 meeting, RT sent to MM, JD and MD a dismissal letter for the claimant - [712].

[241]On 1 December 2022, JD and MM attended the Marlow showroom to hold a meeting with the claimant in which she was dismissed. JD told us that: “the only reason Maria was there was I asked her and it turned out Farah had asked her too. I didn’t want to be on my own in Marlow: she was there for my support and protection to go to the final probation meeting.”

[242]MM explained to us that she was not really in a fit state to be at work at that time. She was asked to assist with FJ’s final probation meeting, and she agree but retrospectively she told us she was no really mentally in the right place to be working. We accept this, as we understand that MM was going through a particularly challenging time regarding her sister.

[243]A letter was drafted by RT and sent to MM and JD prior to the 1 December meeting. We heard from JD that usually in this situation, RT will draft a letter and send it to the RSM holding the probation review. The RSM would print out the letter, sign it and hand it to the employee in question. They would then scan a copy of the final letter and send it back to RT with any notes. We accept this is the usual process: firstly, that evidence was not really challenged and, secondly, this system of sending by email and resending the letter back to HR makes sense when HJL had RSMs in different geographic locations, and an HR representative in another location again.

[244]In the meeting, MM handed the claimant the termination letter at [245]. It is FJ’s case that there was an exchange along the following lines - [FJ/421]: MM: You’ve not passed your probation. FJ: Why MM: We don’t have to give you a reason (pause). You’ve been making comments about Naz and your manager James. You made comments to Louisa, Rhian and Catherine. Although there’s been an improvement in your sales...(trailed off).

[245]She gave a slightly different account at [290] in her diary: MM: you have not passed probation. FJ: Why? MM: We don’t have to give you a reason since you stated you had made comments about Naz and James your manager. You have made comments to Louisa and Rhian and Catherine. You don’t fit out values.

[246]When MM was asked about this in her evidence, she said: “I remember you were very angry. I would have said that you have not passed your probation as that is what they told me to say. You asked why and you said “performance”. I said “it feels like you have not been happy throughout your time here, you’ve not been happy”.

[247]We find that it is more likely than not that MM said something about FJ not being happy, given that she had made complaints to her colleagues. However, we do not accept FJ’s account that this was in response directly to the question of “why” FJ was dismissed. FJ herself set out in her evidence that there was a long pause before MM made a statement about the claimant making comments. We consider that any such comment was not in direct response to the question as to why the claimant was dismissed, but was a comment based on MM’s own opinion as opposed to a reflection of DW’s reasoning for dismissing FJ.

[248]We consider that this meeting between FJ, JD and MM was not run in the professional manner one would hope for. However, we also accept that at the time MM was not in the right frame of mind to be at work, let alone conducting a meeting of this importance.

[249]Following the 1 December meeting, JD sent by email to RT, copying in MM and MD, the relevant paperwork for the claimant’s review process – [715]. 15 December 2022 – allegation 8.3.7 - the claimant did not receive a reply to her email asking for the reason for her dismissal

[250]FJ’s case is that she did not receive a reply to her email asking for a reason for her dismissal. Factually, this is correct, there was no reply. The claimant alleges that this was an act of victimisation by RT, to whom her email was sent.

[251]The Tribunal asked FJ what she relied upon to link the lack of email to any protected acts. The claimant replied that: “If I was genuinely dismissed for my poor performance, it would have been stated, and they ignored my request for a formal reason. If that was the case, it would have been very easy for RT to give me a reason with the evidence attached to show poor performance”.

[252]We are not satisfied that this assertion is based upon any good evidence. It is speculation only. There are plenty of potential reasons why RT did not reply, including that he just forgot, or did not think it necessary or appropriate. Legal framework Direct discrimination – s13 EqA

Legal framework

[253]S13 of the EqA provides: “(1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

[254]S13 requires a comparison exercise to be done, comparing the respondent’s treatment of the claimant with the treatment of a “comparator”. The Tribunal can use actual comparators or, if there is no real person who fits the definition of a comparator, hypothetical comparators.

[255]The appropriate comparison exercise is set out at s23 EqA as follows: “(1) On a comparison of cases for the purposes of section 13, ... there must be no material difference between the circumstances relating to each case. (2) The circumstances relating to a case include a person’s abilities if - (a) On a comparison for the purposes of section 13, the protected characteristic is disability...”

[256]There are two parts of direct discrimination:(a) the less favourable treatment and

(b) the reason for that treatment. Sometimes, however, it is difficult to separate these two issues so neatly. The Tribunal can decide what the reason for any treatment was first: if the reason is the protected characteristic, then it is likely that the claim will succeed – Shamoon v Constable of the Royal Ulster Constabulary

[2003] UKHL 11

. Reason for less favourable treatment

[257]In terms of the required link between the claimant’s disability and the less favourable treatment she alleges, the two must be “inextricably linked” - Jyske Finands A/S v Ligebehandlingsnaevnet acting on behalf of Huskic: ECLI:EU:C:2017:278.

[258]The correct approach is to determine whether the protected characteristic had a “significant influence” on the treatment – Nagarajan v London Regional Transport

[1999] IRLR 572

. The ultimate question to ask is “what was the reason why the alleged perpetrator acted as they did? What, consciously or unconsciously, was the reason?” - Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

. This is a question of fact for the Tribunal to determine, and is a different question to the question of motivation, which is irrelevant. The Tribunal can draw inferences from the behaviour of the alleged perpetrator as well as taking surrounding circumstances into account.

[259]If there is more than one reason for the treatment complained of, the question is whether the protected characteristic (in this case, race) was an effective cause of the treatment – O’Neill v Governors of ST Thomas More Roman Catholic Voluntary Aided Upper School

[1996] IRLR 372

. Burden of proof

[260]The burden of proof for discrimination claims is set out in s136 EqA: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.

[261]In Laing v Manchester City Council and anor

[2006] ICR 1519

, Mr Justice Elias held that: “the onus lies on the employee to show potentially less favourably treatment from which an inference of discrimination could properly be drawn”.

[262]This requires the Tribunal to consider all the material facts without considering the respondent’s explanation at this stage (“stage one”). However, this does not mean that evidence from the respondent undermining the claimant’s case can be ignored at stage one – Efobi v Royal Mail Group Ltd

2021 ICR 1263

[263]It is not enough for the claimant to show that there has been a difference in treatment between her and a comparator, there must be “something more”. In Madarassy v Nomura International plc

2007 ICR 867

, Lord Justice Mummery held: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.

[264]In Virgin Active Ltd v Hughes

2023 EAT 130

, it was highlighted by the Employment Appeal Tribunal that the consideration of whether there are material differences in the circumstances of an actual comparator compared to those of the claimant needs to take place before applying the shift in the burden of proof. Regarding a hypothetical comparator, the claimant must show that the comparator would have been treated more favourably. This requires the Tribunal to be able to draw inferences of likely treatment of a hypothetical comparator from the evidence before it.

[265]It is only if the initial burden of proof is reached that the burden shifts to the respondent to prove to the Tribunal that the conduct in question was in no sense whatsoever based on the protected characteristic – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

2005 ICR 931

. Harassment – s26 EqA

[266]The definition of harassment is set out at s26 EqA: “(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, mediating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;

[267]It is for the individual to set the parameters as to what they find acceptable, and what is unwanted: “it is for each person to define their own levels of acceptable” – Reed v Stedman

[1999] IRLR 299

, and more recently Smith v Ideal Shopping Direct Ltd

UKEAT/0590/12

. Purpose or effect

[268]S26 makes it clear that it is sufficient for the unwanted conduct to have the effect set out in s26(1)(b): it is not necessary for that to be the purpose of the alleged perpetrator. For example, harassment may still be made out where there is teasing, also called banter, without any malicious intent.

[269]In terms of effect, the alleged perpetrator’s motive is again irrelevant. The test is both subjective and objective. First, it is necessary to consider what the effect of the conduct was from the claimant’s perspective (subjective element). If it is found that the claimant did suffer the necessary effect set out in s26(1)(b), the next stage is to consider whether it was reasonable for the claimant to feel that way.

[270]Furthermore, it is not necessary for the conduct to be aimed directly at the claimant. A claim can succeed if it was reasonable for the claimant to feel that their environment had been made intimidating, hostile, degrading, humiliating or offensive, whether or not any language or conduct is specifically aimed at them. Related to the protected characteristic

[271]The causal link required for harassment is much broader than that for direct discrimination. The requirement is that the conduct must be related to the protected characteristic. There is no protection from general bullying within the EqA; harassment will not be proven where someone is picked on or singled out, unless that treatment is related to a protected characteristic.

[272]There is limited guidance from the appellate courts as to what is meant by “related to”. Some guidance has been given by the Court of Appeal in the case of UNITE the Union v Nailard

[2018] EWCA Civ 1203

. The facts of this case were that the respondent had failed to deal with the claimant’s sexual harassment complaint. The Employment Tribunal found that, because the failure related to a grievance regarding harassment, that was sufficient to find that the failure was itself an act of sexual harassment. The Court of Appeal found the Tribunal had got it wrong. The Tribunal had not made findings as to the thought processes of the individuals who failed to deal with the grievance; therefore, it could not be found that the failure itself was an act of sexual harassment. A finding would have to be made that those who failed to deal with the grievance were guilty of sexual harassment. The Tribunal had, in effect, used the “but for” test; in other words, they found liability on the basis that, but for the grievance, there would have been no failure. This is not the correct legal test under section 26.

[273]In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, HHJ Auerbach reminded the tribunals that the claimant’s perception that conduct is related to a protected characteristic is relevant, albeit not determinative, of the issue. The tribunal must: “articulate distinctly, and with sufficient clarity, what feature or features of the evidence or facts found have led it to the conclusion that the conduct is related to the characteristic as alleged”.

[274]It therefore follows that a claimant’s understanding and a respondent’s intention are not strictly relevant to the issue of causation. The context in which the alleged harassment occurs is a key factor in determining whether the conduct was related to the relevant protected characteristic – Warby v Wunda Group plc EAT 0434/11. Sexual nature

[275]Generally, in the majority of cases, whether conduct is of a sexual nature will be clear. The ENRC Employment Code gives the following examples of conduct of a sexual nature, which can cover verbal, non-verbal or physical conduct – paragraph 7.13: 275.1. Unwelcome sexual advances; 275.2. Touching; 275.3. Forms of sexual assault, 275.4. Sexual jokes; 275.5. Displaying pornographic photographs or drawings; 275.6. Sending emails with material of a sexual nature

[276]In a scenario in which there are a series of acts that have occurred, they may be taken together and considered in context. For example, in Reed and anor v Stedman

1999 IRLR 299

, EAT, it was held that one over act of a sexual nature, such as a jokey attempt to look up the claimant’s skirt, would colour other acts which, isolated, may seem unobjectionable.

[277]The Tribunal must, however, not be too ready to read a sexual element into a situation in which none exists. For example, in British Telecommunications plc v Williams

1997 IRLR 668

, EAT, the claimant’s case was that her male manager had become aroused in a one-to-one meeting with her, starting at her legs, trapping her in a room. The Tribunal accepted the male colleague’s denial of these elements of the claim. However, it still concluded that the meeting was held in a manner that was sexually intimidating; one point made was a criticism by the Tribunal that there had been no other female present. This was a suggestion that had not been made by the claimant. The EAT held as follows: “My colleagues and I are sure that it is neither required by law nor desirable in practice that employers should have female supervisors for female staff or to see that male managers are chaperoned when dealing with female staff. The Tribunal’s suggestion is, we think, wholly misplaced, and could itself be regarded as an unjustified generalised assumption based on sex which the [1975 Sex Discrimination] Act is designed to make unlawful”. Victimisation – s27 EqA

[278]S27 EqA sets out: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because: (a) B does a protected act; or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) Bringing proceedings under this Act; (b) Giving evidence or information in connection with proceedings under this Act;

(d) Making an allegation (whether or not express) that A or another person has contravened this Act.” Protected act

[279]The relevant subsections in relation to “protected act” in the present claim are ss27(2)(c) & (d).

[280]Regarding “doing any other thing for the purposes or in connection with this Act”, this is the catch-all provision. Under pre-Equality Act legislation, it was held that the requirement that something be done “in reference to” the Race Relations Act would be met if it was done by reference to that Act “in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act” – Aziz v Trinity Street Taxis Ltd and ors

[1988] ICR 534

[281]In terms of “making an allegation…”, although it is not necessary for the Equality Act to be mentioned, it is vital that the facts as set out by the claimant would be capable of amounting to a breach of that Act. In other words, it must be conveyed that there has been conduct which interferes with a protected characteristic – Durrani v London Borough of Ealing [2012]

UKEAT/0454/2012

. In Beneviste v Kingston University

EAT/0393/05

the EAT held that – paragraph 29: “[a claim form] does not identify a protected act in the true legal sense merely by making a reference to a criticism, grievance or complaint without suggesting that the criticism, grievance or complaint was in some sense an allegation of discrimination or otherwise a contravention of the legislation”.

[282]In the recent case of Kokomane v Boots Management Services Ltd

2025 EAT 38

, the EAT held that a protected act need not necessarily expressly state that an act of discrimination had taken place – paragraph 23: “All that is required are that facts should be asserted which are capable in law of amounting to an act of discrimination”. Detriment

[283]In terms of the meaning of detriment, the Court of Appeal in Ministry of Defence v Jeremiah

[1980] ICR 13

held that a detriment exists: “if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment”.

[284]In other words, if the claimant has suffered a disadvantage compared to other employees (whether real or hypothetical), they will have suffered a detriment. Despite this, there is no strict need for a comparator in cases of detriment. Detriment because of protected act

[285]For a detriment to be because of a protected act, it is necessary that it had a significant influence on the perpetrator. It is not necessary for the Tribunal to identify conscious or subconscious motivation – Nagarajan v London Regional transport

[2000] 1 AC 501

at p512-513. The meaning of “significant” has been held to mean “more than trivial” – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

[2005] ICR 931

. Conclusions Direct age discrimination 27 July 2022 – allegation 3.2.1 – NS said “ I wouldn’t do it that way” in relation to FJ performing a task. He leaned over the claimant without warning, took control of the mouse and showed her how to add attachments to a document. The claimant said “ I did not know you could do that”, to which he replied “coz you’re old”

Conclusions

[286]We have found above at paragraphs 87 to 89 that factually this allegation occurred as FJ suggests. However, we have also concluded that NS would make the comment “coz you’re old” to anyone older than him which was, at the time, anyone older than their late 20s.

[287]In the List of Issues, the age group with which the claimant aligns herself is as follows: “at 39, she was considered to be old”. Therefore, the question for us is whether NS would have made the same comment to someone with a similar lack of technical knowledge below the age of 39. As we have said above, we have concluded that NS would make such a comment to anyone older than him, which would include people below the age of 39.

[288]As such, we reject this claim of age discrimination. 25 August 2022 and 1 September 2022 – allegation 3.2.2 – JD said to FJ that he would guess she was 25 years old

[289]Our findings on this allegation are set out at paragraphs 123 to 127 above. We reject this allegation on its facts. 8 September 2022 – allegation 3.2.3 – after being told SJ was 39, JD reacted as if shocked and disgusted 8 September 2022 – allegation 3.2.4 – JD got up and left abruptly

[290]We have rejected this allegation on the facts, as set out in our findings at paragraphs 143 to 151. 21 September 2022 - 30 September 2022 – allegation 3.2.5 - JD referred to the claimant as “crap" and used the words “fault" and “bullshit” a lot towards her Specific examples are as follows: - allegation 3.2.6:3.2.6.1 Whilst discussing the fact that a customer had yawned at FJ, JD said “coz you’re crap, it’s your fault”;

[291]We have set out our findings on these allegations at paragraphs 157 to 163 above. We have found that JD did use the words “crap” and “fault" on the balance of probabilities. We are not satisfied that he used the word “bullshit”.

[292]At this point, we consider the allegation as one of direct age discrimination. In relation to age, the claimant’s case appears to be that JD’s attitude towards her changed on finding out her age on 8 September 2022 – for example see [FJ/380]. Given that we have already found that JD was aware that the claimant had been working for 20 odd years from early in their working relationship (in August 2022), the suggestion of a change in treatment in September 2022 is nonsensical. There is nothing on the evidence from which we could draw an inference that someone who was not “39 and so considered to be old” would be treated any differently. As we have found, the context of the “fault" remark was about those on the sales team taking responsibility: that finding does not give rise to anything from which we could draw an inference that JD was significantly influenced by the claimant’s age.

[293]We are therefore not satisfied that the claimant has put before us sufficient evidence to shift the burden of proof to the respondent. We therefore reject the claim. Conclusion on direct age discrimination

[294]We reject the claim of age discrimination in its entirety. Direct race discrimination 11 July 2022 – allegation 4.2.1 – NS asked FJ where she was from. After she had told him he walked away with a smile on his face (reference to the Asian caste system)

[295]We repeat our findings at paragraphs 65 to 76. We conclude that the claimant has not satisfied us that this allegation factually occurred. As such we reject this claim. 16 August 2022 – allegation 4.2.4 – NS called RA a peasant 16 August 2022 – allegation 4.2.5 – NS said that he (RA) was below him (NS)

[296]We have rejected allegation 4.2.5 on its facts. However we have accepted that NS did call RA a peasant, as per allegation 4.2.4. See paragraphs 94 to 98.

[297]At paragraph 98, we have set out that on this occasion, NS’s conduct was the same towards both FJ and Georgina. Georgina does not share the same race as FJ. Although Georgina is not an alleged actual comparator for this claim, this does provide us with evidence as to how NS would treat someone who was not British Asian in materially the same circumstances as the claimant. It cannot therefore be the case that NS treated FJ less favourably on the grounds of her race given that someone of a different race was treated in the same way.

[298]As such we reject this allegation of direct race discrimination. 25 August 2022 – allegation 4.2.6 – JD asked FJ where she was from

[299]We have made our findings on this allegation at paragraphs 104 to 106 above. We are satisfied that the allegation did occur factually. We turn then to the question of whether there is any evidence from which we could draw an inference that JD is question was discriminatory.

[300]Given that we have found that JD’s question followed from the fact that they had just been discussing NS asking the same question, we conclude that the reason for the question was not the claimant’s race, but the fact that she had raised this as a complaint.

[301]We consider whether a hypothetical comparator would have been treated differently to FJ in materially the same circumstances. There is no good evidence to suggest that, had someone of a different race (non-British Asian) made the same complaint to JD, that NS had asked where they were from, that JD would have treated them any differently. In other words, the reason for the question was not the claimant’s race but the fact that the issue of where she was from had come up during the course of her complaint.

[302]As such we reject this allegation: the burden of proof has not shifted. If we are wrong on that, we are satisfied that there was a non-discriminatory reason for the treatment. 1 December 2022 – allegation 4.2.8 - the claimant failed her probation period and her employment was terminated

[303]We have set out above at paragraphs [218-220] and [225-226] respectively our findings that, firstly, DW made the decision to dismiss the claimant and secondly, the reason for dismissal was her performance. As such, it follows that the reason for dismissal was not the claimant’s race.

[304]We have found at paragraphs [227-228] that LS and GM are not appropriate comparators, given the material differences in their circumstances, namely their being based in a different region and with a different RSM. In order to be appropriate comparators, LS and GM would have to be Sales Designers based out of the Marlow showroom, with JD as their RSM, with no sales at the time of their first probation review, and 2 sales at the time of their final probation review.

[305]The only evidence the claimant relied upon to demonstrate that her dismissal was an act of race discrimination was that LS and GM were not subject to the same treatment or given the same targets in their probation reviews. As they are not appropriate comparators, such differences take the case no further. There is no good evidence that the claimant was dismissed because of her race. As such, the burden of proof does not shift to the respondent.

[306]In any event, if we are wrong, and the burden of proof has shifted, we have accepted the respondents’ non-discriminatory reason for dismissal.

[307]As such, this claim fails. Conclusion on direct race discrimination

[308]This claim fails in its entirety. Direct sex discrimination 28 April 2022 – allegation5.1.1 – RA interviewed FJ for a longer period than her comparators 28 April 2022 – allegation

5.1.2 – RA asked her questions at the end of the interview about her marital status and if she had child

[309]The Tribunal repeats its findings at paragraphs 60 to 63 above, and conclude that these allegations are rejected on their facts. 11 July 2022 – 30 September 2022 – allegation 5.1.3 - NS told FJ her black dress was not professional

[310]We repeat our findings at paragraphs 77 and 78 above, and repeat that we are not satisfied that this incident occurred as alleged. As such, we reject this claim on its facts. 11 July 2022 – 30 September 2022 – allegation 5.1.4 - NS asked FJ why she was wearing flip-flops

[311]In light of our findings at paragraphs 79-83 above, we are not satisfied that we have facts before us from which we could conclude that this conduct by NS was discriminatory. We have found that the reason for NS’s statement was to exert managerial authority over FJ, and there is nothing before us from which we could infer that NS would have acted any more favourably with a male sales designer.

[312]As such we conclude that the burden of proof has not shifted in this case and we reject this allegation of direct sex discrimination. 25 August 2022 – allegation 5.1.7 - JD said the following

[313]Our findings as to the facts of this allegation are found at paragraphs 107- 120 above. Factually, we have upheld only that JD suggested the claimant should go on Tinder and that she should go on Love Island. From our findings that such conversations were not unusual in the workplace, and that neither Love Island nor Tinder are female specific, we find that we have no evidence from which we could draw an inference that JD would not say the same things to a male colleague.

[314]As such we are not satisfied that the burden of proof is shifted, and therefore reject this allegation. Conclusion on direct sex discrimination

[315]We reject the claim of direct sex discrimination in its entirety. Sexual harassment 26 July 2022 – allegation 6.1.2 – RA touched his crotch during a training session

[316]Factually, we have found at paragraphs 84 to 86 that RA did touch his crotch during a training session. However, we have also found that there was nothing sexual in this conduct, and that it was simply because he was uncomfortable.

[317]From the claimant’s evidence, we are satisfied that this conduct by RA was unwanted. However, there was nothing of a sexual nature in his behaviour.

[318]Furthermore, we are not satisfied that the claimant perceived this behaviour as violating her dignity or creating the requisite environment under s26(4) EqA. Her own words were that she was made to feel “uncomfortable” by his behaviour; however discomfort is not sufficient to reach the high threshold set by s26(4).

[319]In any event, given our findings as to the context of this matter, namely that this occurred because RA was uncomfortable in his outfit and was unaware that his conduct had been noticed, we conclude that it would not be reasonable for his conduct to be perceived as creating the requisite environment under s26(4).

[320]We therefore reject this claim. 25 August 2022 – allegation 6.1.4 – JD looked at FJ’s breasts for too long and leered at her body

[321]The Tribunal has set out its findings at paragraphs 121 to 122. We have rejected this allegation on the facts. As such we reject this allegation of sexual harassment. 25 August 2022, 5, 8, 22, 23 September 2022, 27 October 2022 and 1 December 2022 – allegations 6.1.5 – JD would leer towards FJ, staring at her breasts, looking the claimant up and down, and from behind

[322]We have rejected this allegation on its facts, as set out at paragraphs 121 and 122 above. 1 September 2022 – allegation 6.1.8 - JD said “you look like you need a hug” and then gave her a hug

[323]The Tribunal has set out its findings on this allegation at paragraph 132 to 142. In light of those findings, we reject the allegation on its fact. 18 October 2022 – allegation 6.1.6 – JD said I should take him out then said “next time you go on a date you can pay and keep the receipt to expense it or treat me to lunch when I’m next in Marlow”

[324]We have set out our findings on this allegation at paragraphs 170 to 178 above. We have found that this was not unwanted conduct. As such, the claim fails at this point.

[325]If we are wrong and the conduct was unwanted, we are not satisfied that this conduct by JD was of a sexual nature. We have found that colleagues did go out for lunch and socialise on expenses; this was a normal part of working life and so we are not satisfied that to suggest a lunch was sexual in nature. The only aspect that the claimant could realistically suggest makes this sexual is the reference to Tinder, given that it is a dating app. However, given the personal casual conversations that we have found took place between colleagues, and the lack of any further context to infer a sexual element, we are not satisfied that the simple reference to a dating site is sufficient to make this conduct sexual in nature.

[326]Finally, and in any event, we are not satisfied that this conduct by JD created the necessary environment required by s26 EqA. FJ and JD continued in their conversation, and there was no complaint by FJ about this conversation to which we have been taken. Even if FJ was slightly taken aback by the Tinder comment, this is not sufficient a reaction to lead to a conclusion that this conduct reached the high threshold of creating the environment set out in s26.

[327]We therefore reject this claim. Conclusion of sexual harassment

[328]We reject the sexual harassment claim in its entirety. Harassment related to sex 11 July 2022 – 30 September 2022 – allegation 7.1.1 - NS told FJ her black dress was not professional

[329]We repeat our findings at paragraphs 77 and 78 above, and repeat that we are not satisfied that this incident occurred as alleged. As such, we reject this claim on its facts. 11 July 2022 – 30 September 2022 – allegation 7.1.2 - NS asked FJ why she was wearing flip-flops

[330]We repeat our findings at paragraphs 79 to 83 above.

[331]By virtue of FJ making a complaint about this comment to JD on 16 August 2022, it is clear to us that this was unwanted conduct by NS.

[332]However we do not consider that asking why someone is wearing flip-flops is related to sex, without some other context to it. As we have set out above at paragraphs 79 to 83, the context as seen by FJ herself is that this was an assertion of power or managerial authority by NS. As such, we are not satisfied that NS’s conduct on this occasion related to sex; as such, the burden of proof does not shift. If we are wrong on that and the burden has shifted, we are satisfied that there is a non-discriminatory reason for this conduct, namely that NS was asserting his authority.

[333]Furthermore, as we have found at paragraph 81 above, FJ’s reaction to NS’s behaviour was to be angered or irritated. However, there is nothing in the contemporaneous evidence to suggest that her perception of his behaviour was that it created an intimidating, hostile, degrading, humiliating or offensive environment, nor is there contemporaneous evidence that FJ considered that this conduct violated her dignity. In any event, looking at the facts and context objectively, we conclude that it would not be reasonable for such a comment to be perceived as creating such an environment or violating one’s dignity.

[334]For those reasons this allegation of harassment related to sex fails. 25 August 2022 – allegation 7.1.6 - JD said the following

[335]Our findings on these allegations are at paragraphs 107-120 above. Given our findings as to the claimant’s willingness to participate in casual and personal conversations, we are not satisfied that this was unwanted conduct. In any event given that both Tinder and Love Island are not female specific matters, we are not satisfied that it can be said these comments relate to sex.

[336]Finally, we consider the claimant’s perception of these comments and whether that perception was reasonable. The claimant complained about the Love Island comment in a meeting between herself, RT and MM on 15 November 2022: notably this is after her probation review meeting on 27 October 2022. There was an earlier meeting at which FJ discussed complaints about JD with MM; this meeting took place on 7 November 2022. We have FJ’s note of issues she wanted to raise with MM at [242]: the complaint about Love Island or Tinder is not present.

[337]We conclude that at the time the comments were made, and for several months after, the claimant took no offence to them. It was only retrospectively, following the probation meeting, that the claimant raised one of these comments as being of any concern. The comment related to Tinder she did not complain about to MM.

[338]Therefore, we find that the claimant did not perceive these comments to be such as would meet the threshold required by s26(4) EqA. In any event, in light of our findings as to the willingness of the claimant to participate in casual and personal conversations, we find that it would not be reasonable to perceive JD’s comments regarding Tinder and Love Island to create the requisite environment or to violate the claimant’s dignity in the way required under s26.

[339]As such, we reject this allegation of harassment. Conclusion on harassment related to sex

[340]We reject the claim of harassment related to sex in its entirety. Victimisation Protected acts 16 August 2022 – allegation 8.1.1 – FJ raised a grievance to JD about the conduct of NS to include racist comments and sexual harassment

[341]We have set out our findings on this at paragraphs 92 to 93 above. We are not satisfied therefore that the complaint raised on 16 August by FJ constituted a protected act under s27 of the Equality Act. There is nothing within the words used that could reasonably be interpreted as being a complaint about anything connected to the Equality Act 2010. 1 September 2022 – allegation 8.1.3 – FJ discussed her grievance about NS with RT

[342]We are satisfied that the conversation held on 1 September 2022 contained some complaints that amount to a protected act. Our findings on this are set out at paragraphs 129 to 131. 10 October 2022 – allegation 8.1.5 – FJ emailed MD to discuss her grievance about NS

[343]We have set out our findings at paragraph 164-165 above. Given that there is no information at all within the claimant’s email regarding the subject matter of the conversation she wanted to have with MD, the email at [219] cannot amount to a protected act. There is no information from which one could glean that the claimant was making an allegation that someone had contravened the Equality Act 2010, or that she was doing anything in connection to the Equality Act 2010. We therefore conclude that this email was not a protected act. 18 October 2022 – allegation 8.1.6 – MD called FJ to discuss the grievance further

[344]Our findings on this are at paragraphs 166 to 169. The allegation does not stipulate what the precise alleged protected act by the claimant is said to be. From the claimant’s own description, there was nothing within the information she conveyed regarding NS or JD from which it could be understood that she was making an allegation that one of them had contravened the Equality Act 2010. Further, there is nothing within the information she conveyed to MD that could be interpreted as doing anything in relation to the Equality Act 2010.

[345]As such we are not satisfied that this conversation contained a protected act. 15 November 2022 – allegation 8.1.8 - the claimant complained of sexual harassment from JD to RT and MM

[346]We have found that this was a protected act. In fact this was conceded by MM’s barrister. Conclusion on protected acts

[347]The Tribunal has upheld that the claimant did protected acts on: 347.1. 1 September 2022; and, 347.2. 15 November 2022. Detriments 20 September 2022 – allegation 8.3.1 – JD said the business were not taking into account all the points she had raised in her grievance, and that they were only considering the incidents which have witnesses. He told her she would need to make a formal complaint if she wanted a different outcome and that she needed to speak seen to make an effort as NS was reporting her behaviour

[348]We have found that JD did say something along the lines alleged under this allegation.

[349]In terms of causation, we have found at paragraphs 152-156 above that the reason for JD making such statements was in an attempt to resolve the issue between FJ and NS informally and amicably, rather than escalating matters.

[350]FJ’s case is that the reason for JD’s statements is her protected acts. By this time on 20 September 2022, there had only been one protected act on 1 September 2022 that we have upheld. There is no good evidence to suggest that JD’s statements were made because of that protected act. We consider that JD’s understanding of the issues between NS and FJ was not about any possible contravention of the Equality Act, but were just personality clashes. He said as much in a call on 8 September 2022 – [185/186]: “And we don’t think there’s any sort of intent against you or racist or sexist, sexism. … ”

[351]Therefore, we are not satisfied that the particular nature of FJ’s complaint of 1 September 2022 (namely it being a complaint of discrimination) had any influence, let alone a significant influence, on JD’s statements in the call of 20 September 2022.

[352]As such, we reject this allegation. 21 September 2022 - 30 September 2022 – allegation 8.3.2 - JD referred to the claimant as “crap" and used the words “fault" and “bullshit” a lot towards her

[353]We refer to our findings at paragraphs 157 to 163 above: we are satisfied that it is more likely than not that JD used the words “crap” and ”fault". The question then is whether the reason for the use of these words was any protected act done by FJ.

[354]There is no good evidence from which we could infer that any protected act in any way influenced JD’s use of language in those 10 days in September 2022. This is purely an assertion by the claimant, and one that was not particularly highlighted by her during the course of the hearing.

[355]We therefore reject the claim. 27 October 2022 – allegation 8.3.4 - JD undertook the claimant’s probationary review 19 days early and spoke over her

[356]Our findings on this are at paragraphs 179 to 184. We have found that the reason for JD holding FJ’s probation meeting 19 days early was that he held his designer meetings at the end of the month. There is no good evidence from which we could draw an inference that this meeting was moved forward because of any protected act. Specifically, the protected act that FJ places as being the reason for JD’s conduct we have found was not in fact a protected act in any event.

[357]In relation to the second part of this allegation, that JD spoke over FJ, we have dismissed that allegation on the facts.

[358]We therefore dismiss this claim. 27 October – allegation 8.3.5 - JD set unachievable targets in the probationary review meeting

[359]We have set out our findings at paragraph 185 to 190 regarding this allegation. We rejected it on its facts, in that we did not find that unachievable targets were set.

[360]In any event, there is no good evidence from which we could infer that the setting of a target of 3 sales in two months was at all influenced by any protected disclosure.

[361]We therefore reject this allegation. 1 December 2022 – allegation 8.3.6 - the claimant failed her probationary period and was dismissed

[362]We have set out our findings at paragraphs 218-220, namely that DW was the decision-maker regarding the claimant’s dismissal, and that the reason for that dismissal was the claimant’s performance.

[363]The evidence upon which the claimant sought to rely to draw an inference that the reason was her protected disclosures was the comment MM made on 1 December, set out at [FJ/421]. Our findings on this exchange are at paragraph 247 above. We are satisfied that any reference to the claimant’s comments or complaints were part of an opinion proffered by MM that FJ had not been happy at HJL. We have found that they were not a reflection of DW’s rationale.

[364]There is no good evidence to suggest that the claimant’s two protected acts influenced DW’s decision to dismissal at all.

[365]As such, we reject the claim of victimisation in this regard. 15 December 2022 – allegation 8.3.7 - the claimant did not receive a reply to her email asking for the reason for her dismissal

[366]We have set out our findings on this allegation at paragraphs 250-252 above.

[367]We are not satisfied that there is evidence from which we could conclude that the protected acts the FJ made could have been the reason for RT’s failure to respond to the claimant’s email.

[368]As such, we reject the claim. Conclusion on victimisation

[369]We reject the claims of victimisation in their entirety. Time limits

[370]Given that we have rejected the claims in their entirety, we do not consider it necessary to determine the issue of time limits set out at Issue 1 of the List of Issues. Approved by: