Employment Judge FreshwaterMr D Stephenson (instructed by counsel) for claimantMr T Perry (instructed by counsel) for respondentDate 9 October 2025
JUDGMENT
[1]The claimant’s claim for unfair (constructive) dismissal is not wellfounded and is dismissed.[2]The claimant’s claim for direct discrimination based on sex is not wellfounded and is dismissed.[3]The claimant’s claim for harassment based on sex is not well-founded and is dismissed.[4]The claimant’s claim for indirect discrimination based on race is not well founded and is dismissed.
REASONS
[1]The Claimant was employed as a store manager by the respondent from 12 November 2019 to 6 July 2023.[2]The respondent says that the claimant resigned, but the claimant says she was unfairly (constructively) dismissed. The claimant also says she was harassed and discriminated against because of her race and her sex. Hearing and procedure[3]The hearing took place in person over the course of nine days (two of which were deliberations in chambers).[4]The claimant applied for an anonymity order at the end of the hearing. This was granted in respect of the claimant, the respondent and all the respondent’s witnesses. Those orders are sent out separately to this judgment, with fuller reasons. In summary, the view of the tribunal was that there was an allegation of sexual harassment and that, although it did not amount to an allegation where there is a real chance a criminal charge will follow (so the automatic reporting and anonymity provisions do not apply) the conduct alleged could be capable of amounting to a criminal offence. Therefore, it is appropriate to make an anonymity order. The names of the claimant and witnesses are anonymized by the use of letters. People who were not witnesses but who are referred to in the pleadings have been referred to by job title or removed by name in this judgment where the context is sufficiently clear. Where the identification of a person will not identify the claimant or a witness in the case, the name is referred to. This is sufficient protection. An order prohibiting reporting generally was not made.[5]The tribunal was referred to a bundle of documentary evidence of 875 pages, CCTV footage that was viewed during the hearing, and read witness statements from: AB, EF, CD, GH, FF, JK, LM, NP, RS and[6]VW.[7]The tribunal determined that the evidence of Mr Phillips was not admissible because it was clear from the way that his statement is written that he considers himself to be an expert in forensic analysis. No permission was sought to adduce expert evidence at an earlier stage. The tribunal was told that the claimant does not seek to rely on the statement for Mr Phillips’ expertise. Instead, it is said to be relevant to the fact that the claimant was not given a copy of the CCTV before these proceedings and if she had then she would have been able to advance a positive case during the disciplinary process. The fact that she was not given a copy of the CCTV Is not disputed by the respondent. In any event, even if there was dispute then Mr Phillips has no direct knowledge of this point. His evidence is therefore of no assistance to the tribunal in determining the issues in the case. All evidence must be relevant to be admissible.[8]The tribunal heard oral evidence from AB, CD, GH, JK, LM, NP, and VW.[9]The tribunal took frequent breaks to enable the claimant to participate as much as possible. CD gave his evidence in two parts. During the first part, he left the tribunal during his cross-examination explaining that he had mental health issues and did not feel able to continue as he found it difficult to discuss what happened. However, he did return and there was no objection to him continuing his evidence (having taken the oath again). Claim and issues[10]The Claimant is making the following complaints: 10.1. Constructive unfair dismissal; 10.2. Direct sex discrimination; 10.3. Harassment related to sex; 10.4. Indirect race discrimination.[11]The issues in the case were agreed between the parties at a case management hearing on 1 July 2024 as set out in this judgment below.[12]Unfair dismissal 12.1. Was the Claimant dismissed? 12.2. Did the Respondent do the following things: 12.2.1. the matters relied upon as direct sex discrimination; 12.2.2. harassment related to sex below; 12.2.3. The matters relied upon as indirect race discrimination below; 12.2.4. The Area Manager ignored the Claimant’s grievance complaints of 24 January and 2 February 2023; 12.2.5. Not telling the Claimant the reason for her suspension on 8 February 2023; 12.2.6. HR failed to provide the Claimant with support and failed to contact her for a period of almost two months following her suspension from 8 February to 2 April 2023, and only engaged with the Claimant after she initiated contact; 12.2.7. Not providing the Claimant with a copy of the CCTV footage (or access to it) which allegedly shows the conduct she was accused of; 12.2.8. During the disciplinary interview on 22 February 2023 repeatedly asking the Claimant the same questions for up to three hours causing her to feel under duress; 12.2.9. Failing to deal with the Claimant’s grievances of 24 January and 2 February 2023 before concluding the disciplinary process; 12.2.10. The same people investigated and heard the Claimant’s disciplinary as her grievance, leaving the Claimant with the feeling that the outcome of the disciplinary was unfair and pre-judged. 12.2.11. Those conducting the disciplinary hearing of 17 April 2023 failed to take into account, or chose to disregard, the Claimant’s defence including that she was a demonstrative or touchy feeling Portuguese lady; the complaint against her was contrived by staff to get her out of the store; and placed undue reliance upon CCTV footage without exploring or taking into account the Claimant’s version of events and grievance complaints including about being bullied; 12.2.12. Issuing the Claimant with a first written warning for 12 months for sexual harassment in April 2023; 12.2.13. The appeal hearing of 6 June 2023 also failed to take into account, or chose to disregard, the Claimant’s defence including that she was a demonstrative or touchy feeling Portuguese lady; the complaint against her was contrived by staff to get her out of the store; and placed undue reliance upon CCTV footage without exploring or taking into account the Claimant’s version of events and grievance complaints including about being bullied. 12.3. Did that breach the implied term of trust and confidence? 12.4. The Tribunal will need to decide: 12.4.1. whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and 12.4.2. whether it had reasonable and proper cause for doing so. 12.5. Did the Claimant resign in response to the breach? 12.6. The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation. 12.7. Did the Claimant affirm the contract before resigning? 12.7.1. The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach. 12.8. If the Claimant was dismissed, what was the reason or principal reason for dismissal? 12.9. Was it a potentially fair reason? 12.10. Did the Respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant?[13]Direct sex discrimination (Equality Act 2010 section 13) 13.1. Did the Respondent do the following things: 13.1.1. On numerous occasions during January 2023 staff told the Claimant, or said about her, that she was rude and aggressive. These individuals were CD, JK and LM. These comments were also stated by CD during the sexual harassment investigation meeting around that time. 13.1.2. During her five weeks in the store, from around January 2023 onwards, some of the staff (CD, JK, LM and GH), conspired to get the Claimant out of the store by ignoring her and her instructions and also her efforts to improve store compliance, and deliberately working slowly. On one occasion some of those encouraged staff not to attend work (and to go sick) on the same date to leave the store understaffed on purpose. The Claimant says this behaviour did not happen to the previous store manager, EF. 13.1.3. The Respondent accepted the approach adopted by male colleagues of fist pumps, handshakes and hugs, however it rejected the touchy feely approach which the Claimant displayed and which she describes as a female approach. 13.1.4. Between January and February 2023, LM would scream at the Claimant at work including in the warehouse on one occasion where he said “you shouldn’t be here, this is all your fault” and on another occasion he screamed “get away from here.” On 24 January 2023 the Claimant says that LM said “I don’t want you here, get away” and this was witnessed by the security guard. 13.1.5. In early February 2023 the Area Manager accused the Claimant of not managing her emotions. The words used were “In my opinion the further escalation of this issues could have been avoided if AB as a Store Manager would have managed her emotions and was able to deal with conflict effectively without being too emotional about the situation.” This was witnessed by NP (Investigation Manager) and a note taker. 13.1.6. In early February 2023 the Area Manager accused the Claimant of being too emotional. This was witnessed by NP (Investigation Manager) and a note taker. 13.1.7. In February 2023 NP disclosed to staff that allegations of sexual harassment had been made against the Claimant. The Claimant says that this information was confidential and should not have been shared. 13.1.8. On 1 March 2023 LM told the disciplinary investigator “I want AB to be gone and for me to be happy with my job” and “no she doesn’t deserve to be part of the store” and “basically no longer in store would be an ideal world.” 13.2. Was that less favourable treatment? 13.3. The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. 13.4. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether the Claimant was treated worse than someone else would have been treated. 13.5. The Claimant says she was treated worse than EF (previous store manager) for the complaints relating to the conduct of the store staff, and she also relies generally on a male hypothetical comparator in the same position as her (store manager). 13.6. If so, was it because of sex?[14]Harassment related to sex (Equality Act 2010 section 26) 14.1. Did the Respondent do the following things: 14.1.1. On numerous occasions during January 2023 staff told the Claimant, or said about her, that she was rude and aggressive. These individuals were CD, JK and LM. These comments were also stated by CD during the sexual harassment investigation meeting around that time. 14.1.2. During her five weeks in the store, from around January 2023 onwards, some of the staff (CD, JK, LM, and GH), conspired to get the Claimant out of the store by ignoring her and her instructions and also her efforts to improve store compliance, and deliberately working slowly. On one occasion some of those encouraged staff not to attend work (and to go sick) on the same date to leave the store understaffed on purpose. The Claimant says this behaviour did not happen to the previous store manager, EF. 14.1.3. The Respondent accepted the approach adopted by male colleagues of fist pumps, handshakes and hugs, however it rejected the touchy feely approach which the Claimant displayed and which she describes as a female approach. 14.1.4. Between January and February 2023, LM would scream at the Claimant at work including in the warehouse on one occasion where he said “you shouldn’t be here, this is all your fault” and on another occasion he screamed “get away from here.” On 24 January 2023 the Claimant says that LM said “I don’t want you here, get away” and this was witnessed by the security guard. 14.1.5. In early February 2023 the Area Manager accused the Claimant of not managing her emotions. The words used were “In my opinion the further escalation of this issues could have been avoided if AB as a Store Manager would have managed her emotions and was able to deal with conflict effectively without being too emotional about the situation.” This was witnessed by NP (Investigation Manager) and a note taker. 14.1.6. In early February 2023 the Area Manager accused the Claimant of being too emotional. This was witnessed by NP (Investigation Manager) and a note taker. 14.1.7. In February 2023 NP disclosed to staff that allegations of sexual harassment had been made against the Claimant. The Claimant says that this information was confidential and should not have been shared. 14.1.8. On 1 March 2023 LM told the disciplinary investigator “I want AB to be gone and for me to be happy with my job” and “no she doesn’t deserve to be part of the store” and “basically no longer in store would be an ideal world.” 14.2. If so, was that unwanted conduct? 14.3. Did it relate to sex? 14.4. 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? 14.5. If not, did it have that effect? 14.6. 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.[15]Indirect discrimination (Equality Act 2010 section 19) 15.1. A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP: 15.2. A requirement for staff not to engage in unwanted touching of other colleagues. 15.3. Did the Respondent apply the PCP to the Claimant? 15.4. Did the Respondent apply the PCP to persons with whom the Claimant does not share the characteristic, e.g. non-Portuguese people or would it have done so? 15.5. Did the PCP put Portuguese people at a particular disadvantage when compared with persons not from Portugal in that the Claimant says that due to her race it is customary to be demonstrative with hands and that may include touching other people when speaking. The Claimant says that in touching the knee of a colleague, this was misinterpreted by the Respondent as sexual harassment which was not her intention, as a result of which she was issued with a first written warning. 15.6. Did the PCP put the Claimant at that disadvantage? 15.7. Was the PCP a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 15.7.1. To prevent staff from receiving unwanted touching at work. 15.8. The Tribunal will decide in particular: 15.8.1. was the PCP an appropriate and reasonably necessary way to achieve those aims; 15.8.2. could something less discriminatory have been done instead; 15.8.3. how should the needs of the Claimant and the Respondent be balanced?
The law
[16]Section 4 of the Equality Act 2010 lists protected characteristics for the purposes of that Act. Sex is listed as a protected characteristic.[17]Section 13(1) Equality Act 2010 states: “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”.[18]In Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 HL it was said that the claimant must establish that she was objectively treated in a ‘less favourable’ way. It is not sufficient for the treatment to simply be ‘different’. The person(s) with whom the comparison is made must have “no material difference in circumstances relating to each case” to the person bringing the claim (section 23(1) Equality Act 2010).[19]Under section 136(2) of the Equality Act 2010, the claimant needs to show facts, found on the balance of probabilities, which could lead the Tribunal to properly conclude that the discrimination has occurred before any other explanation is taken into account. If the claimant succeeds with this, then it is for the respondent to show that the contravention has not occurred (section 136(3) Equality Act 2010). The Tribunal must first consider whether the burden does shift to the respondent. The claimant must show more than simply there is a protected characteristic and a difference in treatment (Madarassy v Nomura International Plc [2007] IRLR 246).[20]Section 19 of the Equality Act 2010 states: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim. (3) The relevant protected characteristics are—...race...”[21]Section 26 Equality Act 2010 states: “(1) A person(a) (A) harasses another(b) if – (a) A engages with unwanted conduct related to a protected characteristic, and (b) The conduct has the purpose or effect of – (i) Violating B’s dignity or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) The perception of B; (b) The other circumstances of the case; and(c) Whether it is reasonable for the conduct to have that effect.”[22]Section 95(1)(c) of the Employment Rights Act 1996 (ERA) says that “an employee is dismissed by his employer if…the employee terminates the contract under which he is employed (with or without notice), in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” This is commonly known as constructive dismissal.[23]In the case of Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, the Court of Appeal ruled that, for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract. As Lord Denning MR put it: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed”.[24]In the case of Malik v BCCI; Mahmud v BCCI 1997 1 IRLR 462, guidance is provided for deciding if there has been a breach of the implied term of trust and confidence. Lord Steyn said that an employer shall not: “…without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”[25]In assessing whether there has been a breach of the implied term of trust and confidence, the test is not whether an employee has subjectively lost confidence in the employer, but whether, objectively, the employer’s conduct was calculated or likely to destroy or seriously damage trust and confidence without reasonable and proper cause: Leeds Dental Team Ltd v Rose [2014] ICR 94, EAT [20-21, 23-26].
Findings of fact
[26]On 1 January 2023, the claimant commenced work at the store in question. She was to take over from EF, who was the previous store manager. After a short handover, the claimant took over from EF on 9 January 2023.[27]On 11 January 2023, the area manager informed the claimant that a monthly ISM audit was imminent.[28]On 14 January 2023, CD (Deputy Store Manager) raised a concern with the area manager that the claimant had touched him a manner that he perceived to be sexual.[29]On 15 January 2023, the claimant, CD and JK (another Deputy Store Manager) had a meeting in what is known as the cash office in the store. On two occasions during the meeting, evidenced by CCTV and witnessed by JK, the claimant reached over and touched CD on his left knee.[30]The area manager spoke to the claimant on 16 January and told her to take CD out for a coffee and that she should apologise for her behaviour. The claimant was shocked but decided to follow this advice. She did not believe she had done anything wrong and was deeply upset at having an allegation of sexual harassment made against her. Indeed, that allegation has continued to have an immense impact on her. It was clear that she was, and still is, genuinely shocked and distressed at the allegations.[31]On 16 January, the claimant followed the area manager’s advice and took CD to a coffee shop. She felt uncomfortable as she did not believe she had done anything wrong, but did apologise. Indeed, it was a deeply uncomfortable meeting for both the claimant and CD.[32]On 23 January 2023, CD made a grievance against the claimant for sexual harassment.[33]On 24 January 2024, LM (Shift Manager) had a panic attack at the end of a shift. There is a disagreement as to what exactly happened, but having considered the evidence the tribunal finds that LM did shout at the claimant. There was a disagreement between them about the content of the incident form that was completed by the claimant (see paragraph 11 below). This was witnessed by a security guard who said at the time that LM’s behaviour to the claimant was unacceptable.[34]On 2 February 2023, three further incidents occurred. First, LM shouted at the claimant during a dispute about rotas. Second, the claimant saw LM using a Portable Pallet Truck (PPT) and asked him to stop as he had not received the appropriate training. LM ignored her instruction. Third, the claimant spoke to LM about the need to remove delivery pallets. LM shouted at her saying that she was destroying the store. These incidents were reported to the area manager by the claimant.[35]A shift manager sent a text message to the area manager on 2 February 2023, saying that he had witnessed how LM spoke to the claimant. It was noted that LM had had conflicts with other duty managers in the past, including the shift manager who sent the text message. It was also stated that LM was spreading negative vibes to the rest of the staff. See page 505.[36]On 24 January and 2 February 2023, the claimant completed two forms. These were Lidl Accident Report Forms and were accompanied by Lidl Witness Statement Forms. These do not amount to grievance complaints. Even though a grievance complaint can be raised informally and does not need to be in a prescribed form, it is clear that the claimant was aware of how to raise a grievance if she wanted to do so. This is evidenced by the fact that she had raised a grievance previously (on 16 May 2022, which is at pages 161-162 in the bundle). The claimant admitted during crossexamination that these were not grievance complaints which suggests that at the time she did not intend them to be.[37]On 4 February 2023, LM made a grievance complaint against the claimant.[38]On 8 February 2023, the claimant was suspended from work by the area manager. This was conveyed to her orally first, and then by a letter of the same date. During the oral conversation, the claimant was not informed of the reason for her suspension. In the letter she was told that the suspension was until further notice pending an investigation into two separate allegations. The allegations were set out as:(1) sexual harassment of a colleague and(2) bullying and sexual discrimination of a colleague.[39]On 20 February 2023, the claimant was sent a letter requesting her to attend an investigation meeting on 22 February in respect of the alleged misconduct referred to as sexual harassment.[40]On 22 February 2023, a meeting took place chaired by NP. The meeting commenced at 12.03 and ended at 15.40. Breaks took place from 14.05 until 14.15 and between 15.05 and 15.20. During that meeting, CCTV footage was shown to the claimant of the meeting of 15 January 2023 between the claimant, CD and JK in the cash office. The CCTV was shown during the course of the hearing, and it could be seen that the claimant reached over to CD on two occasions and touched his knee. The first time that the claimant saw the CCTV was during the meeting of 22 February, and she was not provided a copy of the CCTV until she had issued proceedings in the Employment Tribunal.[41]No further contact from the respondent took place during the claimant’s period of suspension, until 3 April 2023. This followed a letter from the claimant (sent by email and recorded post) to the respondent dated 2 April 2023. In her letter, the claimant wrote to express her concern about the lack of contact and the time it was taking to resolve the matter. It appears that her letter prompted a reply from the respondent, which apologised for the fact that nobody had been in touch.[42]By way of a letter sent by email and dated 3 April 2023, the claimant was invited to attend a disciplinary hearing on 6 April 2023. The hearing was to be chaired by the Regional Head of Logistics. The claimant was informed in the letter that the allegations being investigated were:(1) sexual harassment against CD, specifically making unwanted physical contact throughout the month of January 2023; and(2) behaving inappropriately to colleagues, specifically using pet names such as ‘babe’ and ‘baby’.[43]On 5 April 2023, the claimant requested that the disciplinary hearing be postponed. On 6 April, the respondent sent the claimant a letter to say that the hearing would take place on17 April 2023.[44]On 10 April 2023, the claimant wrote a letter setting out a number of concerns about the investigations taking place. In that letter, she said (among other things) that CD’s complaints were without foundation and had been made maliciously and spitefully. Further, she said that there was collusion and coercion between members of staff at the Lidl store. The claimant said that the investigation should be re-opened given the collusion in the store and that the complaints should be dealt with together. In her view, the disciplinary hearing should be postponed until the additional information she sought had been compiled.[45]On 12 April 2023, a letter was sent to the claimant from the respondent stating that as the issues raised by her in her grievance were so closely linked to the disciplinary process, it would be fair to deal with them both in the course of the disciplinary hearing.[46]On 14 April 2023, the claimant was informed that the grievance raised by LM would not proceed to a disciplinary hearing. The reason why this decision was taken is unclear. All that is known is that towards the end of March 2023, the Regional Head of Logistics decided to take no further action from the investigation into LM’s grievance (page 249).[47]On 17 April 2023, the claimant wrote a letter to the Regional Head of Logistics. It is unclear whether he read it before the disciplinary meeting. In that letter, the claimant states that “no consideration was given to others to my Portuguese cultural characteristics which although is ‘more touchy’ has never previously been the source of any issues.”[48]On 17 April 2023, the disciplinary meeting chaired by the Regional Head of Logistics took place. The meeting commenced at 13.30 and concluded at 15.20. The claimant was accompanied by Mr Smith. During the meeting, Mr Smith stated that the claimant was Portuguese and that her communication is very different (see page 332). The CCTV was discussed but not viewed during the meeting, although it is clear that the Regional Head of Logistics had seen it beforehand. At the end of the meeting, the Regional Head of Logistics said that he did not find the allegations constituted gross misconduct. He felt that training was needed and that the claimant should return to work but in a different store. The Regional Head of Logistics said that he intended to deal with the claimant’s grievance separately although the reason for this is unclear from the meeting notes.[49]On 20 April 2023, the Regional Head of Logistics wrote to the claimant to invite her to a grievance meeting on 27 April 2023. He was to chair that meeting.[50]On 21 April 2023, a reconvened outcome meeting took place between the claimant and the Regional Head of Logistics It was said that no further action would be taken about using words such as ‘babe’ and ‘baby’ to a colleague. In respect of the allegation of inappropriate touching, there would be a “1st stage warning” based on the fact that there was a policy in place about touching people. It was confirmed that the claimant was not able to return to work at the store.[51]On 27 April 2023, the grievance meeting between the claimant and the Regional Head of Logistics went ahead.[52]On 12 May 2023, the Regional Head of Logistics sent a letter explaining the outcome of the disciplinary hearing. The letter records that the claimant believed that in her culture using pet names like ‘babe’ and ‘baby’ was more appropriate than using words like “mate” as her communication was different. No sanction was issued about this allegation. It was found that the claimant had made unwanted physical contact with CD which was evidenced by the CCTV footage. The Regional Head of Logistics noted that the claimant had explained this was not done in a sexual way. He also noted that CD had not told the claimant how he felt about it, but that not everyone found it easy to discuss such matters with their line manager. The Regional Head of Logistics said that the advice to take CD for a coffee was not best practice and could have exacerbated the situation. The Regional Head of Logistics clearly stated that he did not find the claimant’s behaviour to be of a sexual nature. He was concerned that senior members of the management team had not addressed this behaviour earlier. He found it appropriate for the claimant to be issued with a first warning. It is unfortunate that the letter concludes by saying that “with regards the allegation of sexual harassment, you are issued with a first warning.” but we are satisfied that the warning was not for sexual harassment because the claimant’s behaviour had found not to be sexual in nature.
Conclusions
[53]It is correct that CD, JK and LM all said that the claimant was rude and aggressive. In our view, the claimant robustly took on the role of the store manager. She took compliance and targets very seriously, far more seriously than her predecessor (EF). She tried to implement changes immediately, and for good reason because of the imminent audit. We find that the claimant did have a more difficult relationship with these members of staff than EF did. This is because EF did not insist on everything being done properly and let the staff work in their own way. Change is always difficult to implement. There is also evidence in the claimant’s appraisal reports that she had a tendency to not communicate well, which would not have assisted her in implementing change.[54]It was clear that LM, in particular, had a very difficult relationship with the claimant. He did use the PPT when he had been told not to by the claimant. There is also evidence that he shouted at the claimant at work and said that he did not want her there. It was also clear that he wanted AB to be gone from the store. This was said to the disciplinary investigator on 1 March 2023. In our view, LM was a difficult employee to manage. This was noted by the shift manager in his text message to the area manager and also during the investigations into the appeal meeting (see page 585) where it says that LM did not have a good attitude. He was said to be obstructive and argumentative. There is no doubt that he was incredibly rude to the claimant. He wanted to make her life difficult. However, there is also evidence that he had, historically, had conflicts with his managers and that the sex of the claimant was not a factor in this.[55]The tribunal accepts that it is the claimant’s honestly held belief that collusion took place. However, there is no evidence of collusion between CD, JK, LM and GH. This was also the view of VW during the disciplinary appeal meeting, who re-interviewed a number of people in order to ascertain if there was any evidence of collusion. There is evidence that GH used the PPT when he should not have done. He explained that this was because it was the way things had been done before the claimant was appointed as the store manager. There is no evidence that he continued to use it when the claimant confronted him about it. There is also no evidence that staff were encouraged to go off sick on the same day. There appears to have been a culture of sick leave in the store. Indeed, CD said himself in his evidence that his own record was terrible. The view of the shift manager (page 585) was that staff were vocal against the claimant because she was direct and bad at communicating. There is evidence to support that the claimant was given feedback on more than one occasion by staff in the store about the need to consider the way she was going about implementing the change.[56]There is no correlation between colleagues making consensual physical contact through actions such as a fist pumps, handshake or hugs between males and unwanted physical contact from the claimant. The list of issues in the case says that the claimant displayed what she described as a female approach. This was not, in fact, her evidence. Her evidence was that physical contact is a common part of communication in Portuguese culture. As a matter of common sense, a fist pump or handshake involves two people equally participating whereas unwanted physical contact involves one person touching another without any desire for reciprocity.[57]The claimant did not make grievance complaints on 24 January and 2 February 2023, and so these were not grievances that were ignored by the respondent.[58]The claimant was given a reason for her suspension on 8 February 2023 in the letter that followed the oral conversation with the area manager. In the view of the tribunal, the explanation given could have been more helpful if more detail had been provided. However, it is not the case that no reason was provided. In any event, the ACAS code of conduct does not require a reason to be given.[59]The area manager said that the claimant should have managed her emotions to avoid further escalation of the issues in the store. He said that she was too emotional about the situation. This was not less favourable treatment. The context is important as he was explaining to an investigating manager his view of the way the claimant had reacted to colleagues when they questioned or resisted her requests.[60]NP did disclose to staff that allegations of sexual harassment had been made against the claimant. He said this in the course of the investigation meetings and the information was passed to the note taker, Paul Miller, EF, JK, LM the trainee area manager and the area manager. Whilst stating to each person of the need for confidentiality, we find that more open style of questioning might have been helpful along the lines of that of VW. That said, we do not find that the fact of the disclosure of the nature of the allegation was prejudicial.[61]It is correct that nobody from HR contacted the claimant during her period of suspension. However, in the view of the tribunal this was not unreasonable or unusual. The disciplinary policy does not provide for HR to contact somebody who has been suspended. In our experience, it is much more common for a line manager or other nominated individual to contact a suspended employee and is not a typical HR function.[62]We do not find that the claimant was repeatedly asked the same questions during the disciplinary interview on 22 February 2023. There was nothing remarkable about the length of the interview being 3 hours. The fact was that the respondent was faced with serious allegations from CD and had to deal with them accordingly. In our view, the note of meeting (which, whilst not verbatim, was not challenged in evidence by the claimant) demonstrates appropriate questioning. Breaks were taken. Whilst the claimant may have felt under duress, that is, in our view, not the fault of the person conducting the interview.[63]It was not the case that undue reliance was placed on the CCTV footage during the disciplinary meeting on 17 April 2023. The CCTV clearly shows that the claimant reached over some distance to touch CD on the knee on two occasions. The contact is entirely different to accidentally touching somebody, for example by standing next to them or walking past them in a hallway. The claimant and CD were not sitting right next to each other. The claimant had to stretch out her arm to make contact. In the view of the tribunal, the respondent correctly interpreted the CCTV footage in finding that there was unwanted physical contact but that the contact was not sexual in nature.[64]The finding about the unwanted physical contact was in line with the respondent’s policy. The views of CD were taken into account, but so was the claimant’s explanation. This is why the respondent found that the contact was not sexual in nature. It is unfortunate that there was an error in the outcome letter sent by the Regional Head of Logistics, however it is clear from the content of the letter that he found that sexual harassment had not taken place. This fact was clarified by VW in the outcome of the appeal hearing.[65]The complaint of constructive unfair dismissal is not well-founded and is dismissed. None of the actions taken by the respondent breached the implied term of trust and confidence. The respondent did not behave in such a way that was calculated or likely to destroy or damage the trust and confidence between the claimant and the respondent. In our view, there were elements of the process that the respondent could have dealt with better. For example, somebody (even if not HR) should have contacted the claimant during her period of suspension rather than waiting until she contacted them in order to progress the investigation. However, the period in question was around 6 weeks. This is not unduly lengthy in the view of the tribunal. The claimant’s culture was taken into account as far as it could be. The fact is that unwanted touching can, and does, cause offence. There is a need to be mindful of this in the workplace. The evidence that the claimant has provided about Latin culture is based on her own academic research and her first hand knowledge of her culture. It was not challenged by the respondent. However, no evidence was provided that physical touching is common or acceptable in the Portuguese workplace. In any event, the respondent’s policy was a fair one in the context of a workplace in the UK. There is nothing unusual or untoward about setting out an expectation that colleagues should be protected from unwanted touching, whatever the nature of that touching. The policy itself applies to all Lidl employees.[66]The complaint of direct sex discrimination is not well-founded and is dismissed. As we have set out in our conclusions above, to the extent that the claimant was treated differently to EF it was due to the difference in management style and clashing of personalities rather than because the claimant was female. We find that the claimant was treated in exactly the same way as a male store manager would have been in the same circumstances.[67]The complaint of harassment related to sex is not well founded and is dismissed. To the extent that there was unwanted conduct towards the claimant, it was not related to her sex. Again, it was related to her management style.[68]The complaint of indirect discrimination is not well founded and is dismissed. The respondent did have a PCP requiring staff not to engage in unwanted touching of other colleagues. It did apply that PCP to the claimant. The tribunal is satisfied that it would have applied it to nonPortuguese people. However, the PCP did not put Portuguese people at a particular disadvantage when compared with persons not from Portugal. The respondent did not misinterpret the claimant’s touching of CD’s knee as sexual harassment. It was specifically found not to be sexual by the respondent. However, as we have stated – there is no evidence that Portuguese people do, generally, touch others in the workplace in the way that the claimant was shown to have done in the CCTV footage. It may be the case that people in Latin cultures (and the claimant includes Portuguese culture in this description) typically are closer in terms of personal space in business settings, however there is a difference between standing close and reaching out to touch. In addition, it may be common for Latino women to “touch or grab each other’s arms while talking” (page 55 in the witness statement bundle). However, the claimant and CD were not friends. The unwanted touching in question was over distance and was not on the arm. Approved by: