Ms A De Vere v W H Malcolm Ltd and Others: 4100373/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4100373/2025

Venue Dundee

Hearing 28 and 29 October 2025

Between

Ms A de VereClaimant

W H Malcolm Ltd and OthersRespondent

Before

Employment Judge I McFatridge

Mr Hardman (instructed by Advocate) for respondent

Instructed by for respondent

Messrs Brodies for respondent

Solicitors for respondent

Mr Peddie for respondent

Manager for respondent

Mr McNeil for respondent

Date 24 November 2025

JUDGMENT

[1]The claimant’s claim under the Agency Worker Regulations is out of time and the Tribunal does not have jurisdiction to hear it. The claim under the Agency Worker Regulations is dismissed.

[2]The claimant’s application to amend her claim so as to include a claim of victimisation under the Equality Act is refused.

[3]The Tribunal does not have jurisdiction to hear the claim of sex discrimination on the grounds that it is out of time with the exception of(i) The complaint against the first respondent relating to the incident referred to in section 5(g) of the note of the Employment Tribunal preliminary hearing which took place on 25 August 2025 and

(ii) the complaint of direct sex discrimination against the third respondent referred to in paragraph 3 of the Tribunal’s said note following the preliminary hearing which took place on 25 August 2025.

[4]The claimant’s remaining claims of sex discrimination are not well-founded and are dismissed.

REASONS

[1]The claimant submitted a claim to the Tribunal in which she claimed that she had been unlawfully discriminated against on grounds of sex and that she was due arrears of pay. In the box additional types of claim she stated “Only 1% of HGV drivers in the UK are women, highlighting the gender disparity in the industry Breach of Agency Worker Rights & Health Impact Claim.” In box 9.2 she noted that she was aware of the time limit for bringing a claim and stated that the delay had been due to ongoing attempts to resolve the issue informally. She also referred to health issues and uncertainty from conflicting responses. All three respondents submitted responses in which they denied the claims. The case was subject to considerable case management and there was a considerable amount of correspondence to and from the Tribunal. Attempts were made by the parties with the assistance of the Tribunal to agree a list of joint facts however it does not appear this was successful. In any event, on 25 August 2025 a further preliminary hearing was held which agreed that the final hearing fixed to take place in September should be postponed to dates in October. It also set out what it understood the claims to be. It also suggested that if the claimant wished to make a claim of victimisation (which the Employment Judge dealing with case management considered was clearly not within the pleadings at that date), then the claimant would require to make such an application. In due course the claimant made an application to amend which was resisted by the respondents. It was agreed that the issue of amendment be dealt with at the commencement of the preliminary hearing in October.

[2]It was left up to the Tribunal hearing the case to decide how to deal with the issue of time bar which had been raised by all three respondents. At the final hearing the parties and the Tribunal agreed at the outset that it would be appropriate to deal with the application to amend first. This would be dealt with on the basis of legal submissions. The agent for the first respondent then suggested that once the amendment process was completed one way or the other it would be appropriate for the Tribunal to deal with the issue of time bar as a preliminary issue. The claimant agreed that this was what she would prefer. The other two respondents also were in agreement with this process. It was therefore agreed that the Tribunal would deal with the amendment issue first and thereafter deal with the issue of time bar. The claimant would be permitted to give evidence relating solely to the issue of time bar and the Tribunal would then hear legal submissions from the parties before deciding the issue. The Tribunal then proceeded to deal with the issue of amendment and decided not to allow the claimant’s application to amend. Further detail of the discussion and the Tribunal’s reasons for their decision is set out below. The Tribunal then went on to deal with the issue of time bar. The claimant gave evidence in relation to time bar and was cross examined by the three respondents. Following retiral, the Tribunal advised the parties of its conclusion which was to the effect that the claim under the Agency Workers Regulations was entirely out of time and that only two parts of the sex discrimination claim were in time. The Tribunal rejected the claimant’s assertion that there had been a continuing course of conduct extending into the period of three months prior to early conciliation being commenced and rejected the claimant’s contention that it would be just and equitable to extend time. Following this process the agent for the second respondent left as they had been entirely dismissed from the proceedings. The Tribunal then proceeded to deal with the remaining sex discrimination claims involving the first respondent and third respondent. The claimant gave evidence on her own behalf. Evidence was then led on behalf of the first respondent from Lawrie Conway who had been a Shunter/Driver with the first respondent in March 2025 when an incident had taken place and evidence was then led on behalf of the third respondent from Helen Hunter a Senior Recruitment Consultant with the third respondent. All of the witnesses gave their evidence in chief by means of witness statements. A substantial number of documents were lodged. There was a bundle of documents in two volumes comprising 1325 pages. These documents are referred to below by page number preceded by the letter J.. There was an additional bundle which was numbered 1-624 which was stated at the front to be “Bundle of documents requested by claimant but not agreed with first respondent”. This is referred to in the judgment below by page number with the letter C in front of it. Application for amendment

Background

[3]In box 8.2 of her ET1 the claimant set out a brief history of her employment and set out her principal claim of being that she was a Class 1 Driver/Shunter requiring a Class 1 HGV licence but was paid at the FLT Driver rate of £12.71 per hour despite performing the same duties as a male colleague who started after her on an agency contract and other permanent workers who were said to be paid a higher rate of £13.91 per hour. In the summary of claims she stated that she was claiming equal pay, sex discrimination, breach of agency worker rights and a “health impact claim”. She then set out a timeline which referred to her equal pay claim. She also stated that on 7 March 2025 she had received an email from Christina advising her to take things with a pinch of salt. She said that in February 2025 the agency had directed her back to the end user to deal with her equal pay issue. She claimed that in February 2025 Express Recruitment had told her that her complaint bordered on asinine. On 17 February 2025 she stated that during a grievance meeting Christina and Mr Haldane were reading her email without her consent and that in February 2025 a formal grievance meeting was held during her shift despite her request to schedule outside working hours. There was no other detail provided of the sex discrimination claim other than a bland statement that “As of recent statistics only 1% of HGV drivers in the UK are women. This highlights the gender disparity in the industry and further illustrates the challenges I faced as one of the few women working in a male dominated environment.”

[4]The respondents submitted a response in which they denied the claims and as indicated above stated that the claims were time barred. A case management preliminary hearing took place on 16 May 2025 before Judge Hoey. Following this it was noted that the claims were under the Agency Worker Regulations 2010 and of direct discrimination under section 13 of the Equality Act and harassment under section 26 of the Equality Act. Extremely detailed case management orders were made calling upon the claimant to provide further specification. The claimant was advised to seek legal advice. During the course of the discussion it is noted that it was pointed out to the claimant that the equal pay claim would appear to have been submitted outwith the appropriate time limit and given that there was no provision in the equal pay legislation for such time limits to be extended this claim could not proceed. Following the preliminary hearing the claimant withdrew the equal pay claim.

[5]A further preliminary hearing for case management purposes took place on 25 August 2025 before Judge Wiseman (J67-69). In paragraph 1 she noted that “This was a second case management preliminary hearing following a significant exchange of information by the parties, some of which had not helped to clarify the claim.”

[6]It was noted that there was a claim under Regulation 5 of the Agency Workers Regulations. The claimant claimed she was not paid at the same rate as an employee of the first respondent. It was noted that this claim was directed against the second and third respondents on the basis that they were jointly and severally liable along with the first respondent. There was also a complaint of direct sex discrimination against the third respondent in respect of the “asinine” comment made in response to her grievance. With regard to the first respondent, in addition to the claim under regulation 5 the claimant was claiming direct sex discrimination in respect of seven incidents. These were “(a) A comment made by Mr David Nelson, Nightshift Manager, on 23 December 2023, that they don’t normally let females work nightshift; (b) Mr David Nelson confirmed, on the 17 February 2024, that his above comment related to a previous female deiver; (c) Mr Nelson sent a text message towards the end of March 2024 saying he ‘had to fight like fuck to get you into the job, especially a female shunting position’ (d) At the end of March 2024 Mr David Jordan, Forklift Driver, made a joke about period blood; (e) On 19 January 2024, at the start of nightshift, Mr Lee Waugh, asked the claimant if she liked ‘five guys’; (f) in the period March – July 2024, comments were made by Mr Alan Penman, Arthur Mackay and Dale Craig that she would have to prove herself in order to get a contract and (g) In March 2025, a note was left for the claimant saying she had to ‘clean your dirty footprints ya mank’.” It was noted that the claimant made claims of harassment on the basis of the same seven incidents.

[7]Employment Judge Wiseman went on to note that the claimant had also mentioned victimisation although the ET1 did not foreshadow this in any way. It was confirmed that if the claimant wished to make a claim of victimisation she would require to make an application to amend. It was noted that thereafter it was likely that the respondent would object and in this case the matter would be referred to an Employment Judge. The claimant submitted an application to amend which was lodged at J351- 353 by email dated 26 August 2025. On 8 September the respondents submitted a formal response in which they asked that the application to amend be refused.(J354-J358) An Employment Judge decided that rather than deal with the matter on the papers the issue would be determined at the commencement of the hearing. With the agreement of the parties it was decided to deal with the issue of amendment as a preliminary issue before the issue of time bar was dealt with in terms of the remaining parts of the claim. In the amendment the claimant stated “The protected acts in this case include:• Raising complaints of sex discrimination and harassment

• Submitting formal grievances

• Making disclosures during absence management and safeguarding processes” The factual basis for the amendment was stated to be

• “Probation extension on a ‘prove-it’ basis, despite documented knowledge of my domestic abuse and homelessness

• Dismissive and demeaning grievance responses, including language minimising my sex discrimination complaint”

• Reference to grievance outcome letter and email of 10 December 2024 by Nick Grant

• “Procedural obstruction, including: DSAR non-compliance Failure to provide comparator/pay data Attempts to neutralise or omit key facts from the Statement of Agreed Facts”

• Witness obstruction: Reference to the first respondent instructing the claimant not to contact potential witnesses during her sick leave.” Claimant’s submissions

[8]The claimant’s submissions were contained partly in her application to amend itself. In the application, she states that “The facts relied upon had been pleaded from the outset in her clarified particulars and witness statement. The respondent had been on notice of these matters since June 2025. No prejudice arises because disclosure on these points is already within the tribunal bundle The amendment does not introduce new factual allegations that clarifies the legal framework of existed pleaded conduct.”

[9]In her oral submissions however the claimant stated that her amendment was in relation to fresh acts of detriment which had occurred since she put her original claim form in.

[10]She referred to an email sent by Mr Peddie on 26 May 2025 (J1208). This appeared to be correspondence relating to the proceedings where Mr Peddie clarified the second respondent’s position and in particular why the claimant was made live again on their payroll in November 2024 so as to facilitate the payment of back holiday pay from the January 2024 period. In this email Mr Peddie also clarifies their position in relation to the claim under regulation 5. He indicated that he had said he would assist Ms de Vere by double checking the matter and W H Malcolm subsequently confirmed to him that the rates were accurate. He went on to say “It is unclear how this can be construed as a denial.” The claimant also referred to an email at J1195 dated 31 March 2025 which appears to be the email in relation to witnesses. This contains a section saying “In the meantime, I am conscious you have approached some witnesses in the case, one in relation to Sean Splitt’s statement and other with a view to confirm a statement regarding your treatment at the site. I travelled to site today to meet with you in person regarding the above points and to give you assurance that a full process will be followed. In addition, I was going to request that you refrain from conducting your own investigation on site, you have my assurance that a full and thorough investigation will take place following your Appeal meeting.” The claimant also makes reference to an email of 17 June from Mr McNeill to the Tribunal again sent in the course of these proceedings where the third respondent clarified their position in relation to the “asinine” comment which is pled as an act of sex discrimination. They stated “The claimant was assigned to the role of shunter/driver without any consideration of gender. When accused of sex discrimination as a seasoned recruiter engaged solely in the people business Express Recruitment Services Ltd (a hirer of as many female as male operators) initially found the accusations to be frivolous and without seriousness. Borderline asinine is a measure of how we interpreted the remark.” The claimant also refers to an email sent on 7 March 2025 by the first respondent. The first paragraph of this email clarifies a “rope process switch”. It was noted that there were issues and that this was being monitored. It was confirmed that the monitoring was not directed at any particular individual. The second paragraph contains the pinch of salt statement which the claimant objects to. The relevant sentence states “I am aware that the team do all chat and discuss things however please can you take these things with a pinch of salt unless I come and tell you directly.” It was the claimant’s position that the respondents had known about these matters for some time and there would be no prejudice to them in allowing the amendment to proceed. She also stated somewhat contradictorarily that these matters were included in her claim but she had not used the right legal terminology at the time and should be allowed to refer to the correct section of the Equality Act.

[11]The respondents’ representatives essentially amplified on the objections which were set out in their email of 8 September. It was their position that this was an entirely new cause of action. They also referred to a document sent to the second respondent by the claimant dated 14 June 2025 (J1220) where the claimant specifically stated that she was no longer pursuing a victimisation claim against respondent 2. This appears to be precisely the same claim relating to the respondents having reactivated her in order to deal with the holiday pay claim as was now being mentioned The first respondent made the point that it was still extremely unclear just precisely what the additional claim was about. There was absolutely no doubt that if the amendment were allowed then there would be no possibility of the hearing proceeding over the three days planned. Further witnesses may be required and those witnesses who had already given witness statements may require to be reinterviewed. Even before that however there would require to be a process of clarification to find out exactly what the claimant’s claims were about. They would need to find out exactly what the alleged protected acts/detriments were. They would need to know when they took place. They would need to know how the alleged protected acts interacted with the narrated detriments. They would also require to establish whether a continuing act could be pled given that there were absolutely no dates.

[12]One of the difficulties for the Tribunal in this case is the nature of the claimant’s documents relating to her pleadings. They are voluminous and in general terms allegations of law and fact are intermixed. There is also a complete lack of logic in some of the documents and many of the statements appear to be contradictory. The first respondents representative put it to her during the course of giving evidence that she had used chatgpt to put some of these documents together since they bor many of the hallmarks of AI produced documents which had not been properly checked. The claimant denied this and we have to take her at her word. In any event, we would echo Judge Wiseman’s comments at the second preliminary hearing that some of the documentation provided by the claimant has done absolutely nothing to clarify the claims. Unfortunately the application to amend comes into that category. The claimant has not clearly set out the relevant facts. She has contradicted herself as to whether these are new facts or whether they are existing facts. In respect of at least one of the allegations the claim is already before the Tribunal as a sex discrimination claim and nothing is really added to it by saying it is a claim of victimisation.

[13]At the end of the day we require to approach matters bearing in mind the overriding objective. The well known case of Selkent Bus Company v Moore is helpful to the extent that it sets out the kind of matters which we should take into account in exercising our discretion. In general terms we agreed with the respondent that this is a substantial amendment in that it introduces an entirely new head of claim. While some of the matters appear to already be before the Tribunal, it appears that some new facts are being pled albeit not very clearly. With regard to time limits the claimant submitted in her application that no new facts were being pled but departed from that position in her submission. In the view of the Tribunal there was a contradiction between the claimant saying on the one hand that she was only pleading matters which had come to light since she had put her claim form in and on the other hand, stating that everything was already before the Tribunal. Looking at the relative prejudice to the parties we entirely agreed with the first respondent’s assertion that if the amendment were allowed then there would be no possibility of the Tribunal proceeding on the days fixed. A period of time would require to be set aside for the claimant to clarify exactly what her new claims were and for the respondents to deal with these. It would cause considerable inconvenience and detriment to all three respondents. On the other hand the detriment to the claimant if the amendment were not allowed would be relatively slight. Whilst she would not be able to run claims which she clearly feels to be well founded she does have an existing claim before the Tribunal. This claim has been subject to extensive case management by the Tribunal to the extent that it is now ready to be tried. The Employment Judges involved in case management have spent considerable time and effort in clarifying the nature of the claims. The Tribunal had no hesitation in finding that in this case the appropriate course of action was to deny the application to amend. The parties were advised of this on the day. Time bar

[14]Having decided the amendment issue the Tribunal went on to consider the issue of time bar. The claimant wished to give evidence in relation to the time bar issue and did so. She was then cross examined by the other parties. On the basis of her evidence and the documents the Tribunal found the following factual matters in relation to the issue of time bar to be proved or agreed. FINDINGS IN FACT RELATING TO TIME BAR

[15]The claimant is an HGV driver who holds a Class 1 licence. On or about 8 January 2024 she commenced an engagement with the first respondent through an agency contract arrangement with the second respondent. She was employed as a Shunter. The first respondent employed Class 1 drivers and shunters at a depot owned by Diageo which is a substantial site in Fife. Generally speaking Class 1 drivers were expected to go out on the open road at least some of the time. Shunters would only drive their vehicles in the yard. Shunters were paid at a lower rate. The claimant initially worked on the night shift but following a request from her she was moved to the day shift in March 2024.

[16]The claimant objected to the pay disparity from the outset.. She was aware from the outset that in terms of the agency worker regulations after 12 weeks she was entitled to be paid at the same rate and with the same terms and conditions as a directly employed employee of the first respondent. It was her view that there were directly employed employees of the first respondent who were being paid at the higher rate for an HGV driver whilst performing exactly the same duties as her. The initial 12 weeks of the claimant’s engagement expired on 9 April 2024. From this date and before it the claimant raised the issue of what she considered to be an unfair disparity in pay both with the first respondent and the second respondent. She raised this with local managers. The pay disparity continued. On or about 4 July 2024 the first respondent changed their agency and the claimant’s employment transferred to the third respondent. The claimant remained employed on an agency contract with the third respondent engaged to carry out work for the first respondent until 26 July 2024. On 26 July 2024 she became a direct employee of the first respondent. Any rights the claimant had to make a claim under Regulation 5 of the Agency Regulations ended after 26 July 2024. The three month time limit within which such claims ought to be made expired on 25 October 2024. By that date the claimant had neither commenced proceedings nor commenced early conciliation in respect of any such claim. With regard to the claimant’s claim of sex discrimination the seven incidents which are referred to took place on 23 December 2023 (prior to the claimant’s engagement commencing), 17 February 2024, towards the end of March 2024, at the end of March 2024, on 19 January 2024 and in the period March – July 2024. All of these incidents took place prior to the commencement of the period of three months from when early conciliation commenced and the current proceedings commenced. The remaining incidents which were before the Tribunal namely the incidents where a note was left in March 2025 and the comments by the third respondent to the effect that her sex discrimination claim was asinine took place within the said three month period and are in time.

[17]The claimant began to suffer from various adverse life events during 2024 and 2025. This led to relationship breakdown and homelessness for a period. The claimant’s position was that she was domestically abused. In or about May 2024 the claimant went to her GP and she was put on a online programme for depression. The claimant completed this programme. The claimant’s mental health deteriorated around January 2025 and this led to an incident where she was sent home by the first respondent because she was suffering from what she described as suicidal ideation. In or about February 2025 a new male shunter started working in the yard and the claimant found that he was on an agency contract and was being paid the Class 1 rate. The claimant raised a grievance. The grievance meeting took place and the grievance outcome was sent to the claimant on 13 March 2025. Following the grievance outcome on 13 March the claimant’s employment terminated and she received her P45 on 9 April.

[18]The claimant was off for a period of sickness in September 2024 due to a domestic violence incident but she did not disclose at the time to her employers that that was the reason for her absence. The only other absence she had was in January 2025. During the period from April 2024 onwards the claimant was able to attend work apart from these two periods of sickness absence. She completed forms and emails and was able to carry out correspondence. The claimant contacted ACAS on 21 February 2025. The ACAS certificate was issued on 11 March 2025 and the claimant presented her ET1 the following day, 12 March 2025. She did this herself without assistance. With regard to her claim under the regulations the claimant was unaware at the time of the Tribunal of anyone who was getting the higher rate of pay who was a direct employee of the first respondent. During the grievance process the claimant had given the name of an individual who was a direct employee of the first respondent at the same time she was employed on the agency contract and that employee was getting paid the same rate as her. She indicated that that employee had left because of his dissatisfaction with the pay rate. Parties’ submissions

[19]The claimant’s position was that she had raised the issue of the differential in pay and her treatment from the outset but had been deflected by all three respondents. She said that they had all said it was nothing to do with them. She said that the first respondent had been well aware of her position before the ET1 was submitted. They had also known of the sexist comments in November 2024. It was her position that the sexism was a continuous state of affairs and that there was a course of continuing sexist conduct. It would also be just and equitable to extend the time limits.

[20]The first respondent’s position was that all of the claims against them were out of time apart from the very last allegation which was alleged to have taken place in March 2025 and was in time. With regard to each of the Agency Workers Regulations the claimant had clearly known about this for some time and the delay was lengthy. There was a dearth of medical evidence as to the reason for such delay. All three respondents’ positions had been clear from the outset. It was the first respondent’s position that we should apply the just and equitable test to each allegation separately. The claimant had failed to provide sufficient evidence for the Tribunal to take any alleged difficulty with her mental health into consideration. On the claimant’s own evidence her mental health had been better during the period when she ought to have lodged her claim than it had been at the later date when she did lodge her claim. Her position was that her mental health had deteriorated significantly in January 2025 yet she had been able to raise her grievance and also lodge her claim in February and March. Nothing suggests that she was not capable of carrying out the task of commencing early conciliation and starting her claim before this. It was clear from the individual claims that there was no course of conduct alleged which extended into the prescriptive period. The final event was a stand alone event.

[21]We advised the parties of our decision on the day. In respect of each of the claims the provisions regarding time limits were the same. It was our view we agreed with the respondents’ position that all of the claims apart from the one incident in March 2025 directed against them and the one incident in or about March 2025 directed against the third respondent were out of time. We agreed with the first respondent that there was nothing before us to suggest there was a continuing course of conduct other than the claimant’s bare assertion that sex discrimination is rife in the road transport industry. The individual allegations are made against different people at different times saying different things. On the issue of whether it would be just and equitable to extend time the tribunal required to look at the issue in the round. There is no rule stating that such an extension will only be granted in exceptional circumstances but nor is there a rule to say that the exception will be granted unless there is good reason not to grant it. The position here is that the claimant has two separate issues. The first is a breach of the agency regulations. All of the facts were known to the claimant from the outset of her employment and she raised them with her employers then and received their answer.. Although it appears to have been something which prompted the claimant to make a claim the fact that an agency worker was hired in February 2025 on the higher rate of pay from the first day is not actually relevant to the claimant’s claim. The claimant is claiming on the basis that there was a directly employed worker who was doing the same job who was paid more than her. It is noteworthy that with regard to that claim matters have reached the stage of the claim coming before a Tribunal without the claimant having identified any comparator in this situation. In her voluminous witness statement the claimant refers to placing reliance on the case of Kocur v Angard Staffing which she says is authority for the proposition that if the respondent had been called upon to produce comparator information and do not do so then the Tribunal are entitled to draw an inference against them. First of all, the Employment Judge has read the Court of Appeal judgment and the EAT judgment in that case and the case says absolutely no such thing. Secondly, there is no evidence before the Tribunal of any cogent or coherent application for comparator pay information having been made by the claimant. The claimant’s position appears to be that she has asked the respondent to provide details of any comparator who was paid more than her and when they have failed to do so believes that the Tribunal should infer that such an individual exists. In any weighing of whether or not it is just and equitable to extend the time limit it is appropriate to take any such major gap in the claimant’s pled claim into account. With regard to the other matters the position is that the claimant could have raised her claim at the time. She chose not to do so. The claims are made against individual fellow employees and managers. In the Tribunal’s view it would be invidious to them now to be faced with these claims so late in the day. The respondents’ representative made the point that there was what he termed a considerable reputational risk to the respondents if they were now required to deal with claims so many months after the event. In truth the claimant could have raised her claim earlier but did not and has not given any coherent reason why she did not. The Tribunal agreed with this analysis. It really had absolutely no reason to grant a just and equitable extension of time. Whilst all respondents had prepared witness statements and were ready to proceed to defend themselves against the allegations it was inevitable that due to the lapse of time and due to the fact that the allegations had not been capable of being investigated when memories were fresh there was a real risk of injustice to the respondent. In all the circumstances we decided it would not be appropriate to extend time.

[22]The parties were advised of this decision and as a result the claim continued on the basis that the only claims which were before the Tribunal were the claim of direct discrimination/harassment against the third respondent in relation to the statement they had made in response to the claimant’s discrimination claim and the final allegation against the first respondent relating to the note left in a cab by their employee. The Tribunal then heard evidence from the claimant in relation to those claims. We also heard evidence from Miss Helen Hunter, a Senior Recruitment Consultant with the third respondent and from Steven Conway, a HGV Driver with the first respondent. On the basis of their evidence and the productions the Tribunal found the following factual matters in relation to these claims to be proved or agreed. Findings in fact Incident on 19 March 2025

[23]In March 2025 the claimant was working as a shunter on the day shift. At this point she was a direct employee of the first respondent. The claimant would drive a shunting vehicle. There were four shunting vehicles. She started at 6am, worked five days a week and could finish at any time between 4am and 6pm. A night shift shunter driver would then come on shift and drive the vehicle. The night shift shunter started at 6pm and then worked until 5.45 in the morning. As a result of these working patterns the day shift driver of the vehicle and the night shift driver of the vehicle would not normally come in to any contact. On 19 March when the claimant was the day shift driver the night shift driver who was taking over her vehicle was a Lawrie Conway. The claimant and Mr Conway had only met once before in or about April 2024 11 months previously. At that time Mr Conway was being trained with the respondent’s vehicle trainer Andy Pearce. The claimant had been using the tug vehicle that was required for training at the time. During the short conversation between the claimant and Mr Conway the claimant told Mr Conway and Mr Pearce that they should keep the vehicle clean as she had just cleaned it.

[24]In the normal course the day shift driver would not know the identity of the night shift driver who was taking over from them nor would the night shift driver know the identity of the day shift driver who was taking over from them. Due to the changing shift patterns, weekends and so on it would not always be the same driver or indeed necessarily the same driver between one day and the next.

[25]On the morning of 19 March when the claimant started work she noticed that there were footprints on the dash in the cab of the vehicle. The claimant was annoyed and reported this verbally to Claire who was her manager. The footprint was there when the claimant got in to the tug. It is not possible to say who left the footprint. The claimant did not clean the footprint off at any point during her shift. At the end of her shift she left the vehicle and did not have any contact with Mr Conway who was the driver coming on shift. When Mr Conway started the shift he saw the footprint on the dash. Like the claimant he was annoyed. He did not report the matter to his manager at the time but decided that he would leave a note for the incoming driver. He had previously left notes for other drivers in similar circumstances although as it happens none for the claimant. He was also annoyed as he had been unhappy with the state of cleanliness of the vehicle over the previous two days as well.

[26]The note was lodged (J312). It stated “Clean your dirty fit prints aff the dashboard Ya mank!” The claimant saw the note when she commenced work the next morning. She sent a message to her supervisor complaining about it. The claimant resolved to speak to the driver who left the note and waited until Mr Conway started at 6pm that evening. She was upset and annoyed and made this clear to Mr Conway. Mr Conway told her that he didn’t know who had left the footprints but that if it had been her it was not acceptable to leave the tug in that way. The claimant complained to Mr Conway that she had been going through a hard time suffering discrimination at the respondent and had raised a grievance and was going to leave as she was unhappy. Mr Conway said that the note had been left as a lighthearted way to get the message across which it had done nine times out of ten in the past so everybody could get on with their job. Mr Conway asked her if she wanted him to report it to the relevant supervisor and make it an official complaint and she said she did not. At the end of the conversation Mr Conway felt the claimant was fine however he got the impression from her that she was trying to find out if he had any grievances with the first respondent and recruit him to join her. Following the conversation with the claimant Mr Conway spoke to his own supervisor and advised him of the incident. Subsequently, the supervisor spoke to him informally and told him that he must not leave notes like that again in the future.

[27]At the time he left the note Mr Conway was not aware of the identity of the driver who would be next in the cab. Mank or manky is a colloquial Scottish word meaning a dirty person. The dictionary definition does not state that it refers specifically to one gender or another. The claim against third respondent in respect of comment made in response to her grievance

[28]On or about 8 July 2024 there was a transfer of engagements between the second respondent and the third respondent, Express Recruitment Services. There was very limited contact between the third respondent and the claimant before the claimant became a direct employee of the first respondent on 26 July. The third respondent advised the claimant of this transfer in a text dated 8 July. The claimant was advised that the telephone numbers for contacts were unchanged and that she would be receiving a P45 from the second respondent and she should pass this to the third respondent when she received it. On 12 July Helen Hunter messaged the claimant requesting her time sheet as a note of hours worked. On 16 July 2024 the claimant contacted Ms Hunter to enquire about other driving jobs. Ms Hunter responded to the claimant on 17 July asking her if she would be prepared to take a driver’s role in various locations. On 18 July 2024 she received a message back from the claimant saying the claimant was going on holiday. She also asked whether RDUK, the second respondent, could respond to her regarding various holidays issues she had raised. Ms Hunter responded that she no longer had access to RDUK’s records and had no link back to them.

[29]On or about 26 July the claimant became a direct employee of the first respondent and her contractual relationship with the third respondent ended.

[30]Following this the claimant contacted the third respondent on or about 8 August and confirmed that she had signed the contract with the first respondent. She asked about holiday pay. There was some correspondence about holiday pay going back to January. The third respondent’s position was that they had paid her for the three days’ holiday she took whilst they were the relevant agents and that she would have to speak to the second respondent about everything else.

[31]The third respondent had been involved in discussions with WHM, the first respondent about the vacancy for a direct employee which the claimant was recruited for. At that time they had four other drivers who were interested in this vacancy. The third respondent’s understanding was that the post of direct employee with the first respondent was seen as a desirable one given that they were seen as a blue chip company to work for. The third respondent recommended the claimant for the role over the other three possible candidates who were male. There was no other contact between the third respondent and the claimant until 24 February 2025. This followed a grievance meeting which the claimant had had with the first respondent on 19 February. The third respondent had not been involved at all in this grievance and had been unaware of it. So far as they were concerned the relationship with the claimant had ended in July the previous year. The third respondent were copied in to an email sent by the claimant to the second respondent and copied to the first respondent. It referred to her starting ACAS conciliation. The claimant’s email of 20 February was lodged (C576). The email was sent to Ms Hunter of the third respondent as well as to the first and second respondent. It states “Dear recruitment Direct ltd. I am writing to formally raise a complaint regarding sexual discrimination and unequal pay that I have experienced while employed at WHM through Recruitment Direct UK Ltd. Given the seriousness of this matter, I request written acknowledgement of receipt and a formal response within seven working days. As this issue directly affects my employment conditions, I have also copied in [WHM HR] and Helen from Express Recruitment for transparency. Summary of Events On December 8, 2023, I applied for a night shift shunting position through Recruitment Direct UK Ltd. The job advertisement specification said a Class 1 license. I attended an interview on December 21, 2023, at 19:30 with the Night Shift Manager at the time. In March 2024, I decided that night shifts were not suitable for me and resigned, primarily due to being paid only £12.57 per hour, equivalent to a Forklift Truck (FLT) worker’s wage, despite my role with a Class 1 license. I raised this issue with the night manager, but I never received a clear response. On my notice week, I was asked whether I would consider transferring to the day shift, to which I agreed. I later raised my pay concerns again with my new manager and also with Ms. Helen Hunter from Recruitment Direct over the phone. Her response was: ‘Because I was not out on the road, I would not receive a driver’s wage.’ Today, I contacted Helen again, and she advised me to escalate the issue directly to Recruitment Direct Ltd. From January 15, 2024, to July 27, 2024, I was consistently paid at the FLT rate of £12.57 per hour, including overtime, rather than the Class 1 driver rate of £13.91 per hour, despite fulfilling the responsibilities of a shunter. It is important to highlight that the work of an FLT operator and a shunter/class 1 is not comparable even without the requested licence, and I was performing the exact same duties as my male colleagues, who were paid the higher rate. Additionally, my role did not require any extra training beyond my existing Class 1 qualifications and terburg training, further proving that my lower pay rate was unjustified. Furthermore, a new shunter started two weeks ago, I wish to clarify if he is being paid the Class 1 rate from the start of his probation period. Given that the only apparent difference between us is gender, I believe this situation constitutes sex discrimination and a violation of equal pay rights.” She then set out her expected outcome which included compensation for distress and financial loss.

[32]On 24 February Ms Hunter of the third respondent sent an email to the claimant enclosing a letter. The letter was lodged (J200). It is as well to set it out in full. It states “Dear Dawn, We are in receipt of your e mail regarding pay rates. Whilst we have no access to the hiring records of Recruitment Direct UK Ltd, it can be surmised that at the time of your engagement as a temporary worker, your rate was appropriate to Class 1 shunter (as opposed to Class 1 driver) set by our client. From your narrative, we take it you commenced work for the then Client of RDUK Ltd in Dec23/Jan24, the rate for the work (presumably) set by the Agency’s end Client. The duration of your temporary engagement as a shunter (to July 24) covered a period which included only a short (4 week) span under Express Recruitment Ltd assignment. Anecdotally, we understand that our client – who continues to dictate the appropriate rate for the role – agreed with another operative some days ago to increase THEIR hourly rate. That is their prerogative. We reiterate, that is anecdotal. This Organisation who engages candidates of both genders to an array of manual assignments – is wholly committed to Diversity, Equality and Inclusion dictum, and it borders on the asinine for you to suggest you were a victim of discrimination Jan/March/July 2024 in the subject shunter role. The above is Without Prejudice to any position taken by Recruitment Direct UK Ltd, in this matter.”

[33]There then followed subsequent correspondence. The claimant submitted her claim and the third respondent submitted an ET3 response. Given it is the claimant’s position that the ET3 response was itself an act of discrimination it is as well to set out the terms of this in full. “We attach copy emails/letter dated 24/2/2025, 25/2/2025, 18/3/25 and 21/3/25 in response to the claimant’s communication to Express Recruitment Services and including in respect of our alleged absence of respect for her claim. Resulting from the departure of a Director of Recruitment Direct UK Ltd, Express Recruitment Services Ltd was formed and ‘acquired’ the Logistics activities of the former Business. This included the assignment of the claimant, and at the point of her engagement with Express Recruitment Services Ltd it was known that the claimant intended to take up a permanent role with Client WH Malcolm Ltd. Concurrent with the engagement/transition of the claimant, another assignee was appointed to an identical role at the same hourly rate as the claimant. That assignee similarly later moved to a permanent role with the end Client (Mr Chris Redfern). Any enhanced rate beyond the pay rate for HGV1 Shunter, would relate to an alternative Job role, viz HGV1 driver utilised on the open road. The hourly rates payable were set by our end Client. Thus the claimant’s short time here with Express Recruitment Services Ltd was based upon mirror terms to that at Recruitment Direct UK Ltd. The use of the word asinine (inadvisable) related solely to her assertions of sexual discrimination. We reiterate that this related solely to her accusations of sexual discrimination. We gave the view that it was absurd to suggest that Recruitment Agencies engaged wholly in the Business of people hiring; committed to the Equality Act 2010 and to our own policy of Equality. Diversity and Inclusion; and staffed by members of Chartered professional Institutes including at Fellowship level. In today’s world our Organisation would not survive if we practised any form of gender preference or discrimination.”

[34]At the time the claimant sent her intimation of claim against the third respondent on 20 February the only issue she had with the third respondent was that she considered that they had breached her entitlement to equal pay. No other sex discrimination claim against the third respondent was in contemplation by the claimant at that time. Observations on the evidence

[35]All three of the witnesses gave their evidence in chief by way of a witness statement. They were then cross examined. The Tribunal had absolutely no issues with the evidence of Ms Hunter and Mr Conway. They were patently honest witnesses who were trying to assist the Tribunal as best they could albeit they did not entirely understand why they were there or why their actions were being described as discriminatory.

[36]The Tribunal had no doubt that the claimant genuinely believed that she was a victim of sex discrimination however we considered that overall her evidence was unreliable. She appeared to see everything through a filter of her belief that since female drivers constituted only 1 per cent of the HGV workforce then they and she were subject to discrimination. The claimant’s witness statement was a completely unsatisfactory document. Although extending to some 34 pages hardly any of it contains what one could describe as evidence of fact. Much of it contains argument, references to what is said to be the law on the subject (generally erroneous) and invective against the respondent. Such factual averments as appear include reference to matters which were never at any time pled by the claimant. There were also references which simply made no sense such as to an exclusionary culture where women were not allowed to work on nights when it was agreed by all parties that the claimant had in fact been initially hired to work on nights and had then been moved to days at her own request. With regard to the incident involving Mr Conrway, the factual averment of the claimant was brief (J367). She stated “The ‘Ya Mank’ Note – A Symptom of Hostility a month after my grievance a handwritten note left on the steering wheel of the tug saying ‘clean yer dirty fit prints aff the dashboard ya mank’, this note was not an isolated incident but a symptom of workplace hostility. The night shift team knew I was covering Dale, and the night shift shunter checked the paperwork, as I personally spoke to him about it. Nothing ever happened after I reported this to my manager. I was on annual leave the following week, then issued a p45 the week after that when off sick.”

[37]In cross examination the claimant accepted that there had been dirty footprints in the cab and that she herself had raised it with her manager. She had not cleaned the footprints off. She said that she had expected formal disciplinary action to be taken against the person who had left the note. Her view was that Mr Conway simply being spoken to by his manager and told not to leave any more notes was completely insufficient. When questioned as to why she considered this to be an act of sex discrimination she said she believed that the work mank would only be addressed at a woman. Rather strangely she justified this by saying that if one removed the ‘k’ then one came up with the word ‘man’. Her position was that the logs showing the identity of the driver who would be in the cab next was available in the manager’s office. We entirely accepted Mr Conway’s evidence that whilst this may be the case he had never seen them and would have no reason to go into the manager’s office to check this prior to starting work. The Tribunal noted that the claimant had waited for Mr Conway at his cab rather than at the manager’s office. If it was standard practice for him to go into the office first to check who was next then she would presumably have waited there.

[38]With regard to the third respondent, the claimant’s witness statement strangely does not actually say anything about the letter of 20 February although during cross examination she indicated that this was what she had been referring to in her ET1. Instead her witness statement contains the following reference to direct sex discrimination “This claim asserts less favourable treatment because of sex, specifically under s.13 EqA 2010. After I raised protected concerns about discrimination and unequal pay, Express Recruitment’s response was one of exclusion and contempt. The clearest example of this was their ET3 submission, which referred to my grievance, made in direct reference to sex discrimination, as ‘Borderline asinine’. Their ET3 explicitly states: ‘The use of the word asinine (inadvisable) related solely to her assertions of sexual discrimination. We reiterate that this related solely to her accusations of sexual discrimination’. This is not just inappropriate; it is hostile and dismissive, confirming a biased rievance culture and showing that my claim was never treated fairly. The choice of wording mocks the protected act and implies that raising concerns about sex discrimination is ridiculous. This characterisation has caused me further distress, especially in light of everything I experienced. This conduct aligns with a wider pattern of minimizing staff complaints. Using ‘asinine’ in reference to a sex discrimination claim in an ET3 directly undermines protected rights and contravenes s.27 EqA via hostile dismissal of my grievance. The Tribunal precedent supports that such dismissive language in ET3s can serve as direct evidence of a discriminatory culture.”

[39]Whilst appreciating that the claimant’s witness statement required to be written before she knew whether or not her application to amend to include a claim of victimisation was included it is quite extraordinary that she has not mentioned in her witness statement the discrimination which she had in mind when completing her ET1 claim form. It is incontrovertible that when she was completing her claim form she would not have known what the respondents were going to put in their ET3 response. At the end of the day, apart from one or two matters such as Mr Conway’s knowledge or otherwise as to whether the claimant would be the person next using the cab there was very little factual dispute between the parties, the dispute lay in the interpretation of these facts.

Issues

[40]As noted above there was a considerable degree of case management in this case with a view to ascertaining the issues between the parties. At the outset of the hearing the Tribunal went through these issues. The claimant indicated that in addition to these issues she was making a claim of unfair constructive dismissal. The claimant agreed that such a claim could not proceed because she did not have two years’ service. I also note that this had not been mentioned in the previous case management discussion where the issues were fixed. The claimant also referred to having a claim under Regulation 13 of the Agency Worker Regulations. Such a claim was not foreshadowed either in the ET1 or indeed in any of the documents sent in since. The Tribunal was prepared to accept that the claimant was stating that in terms of Regulation 14, all respondents were jointly and severally liable for a breach of Regulation 5. In any event, given that we decided that the Agency Worker’s claim was out of time then we did not have jurisdiction to deal with it, that was not relevant. Given our findings on time bar the only two claims which were outstanding and which the Tribunal dealt with were the claim against the first respondent in respect of the note left by Mr Conway and the claim against the third respondent in respect of their alleged dismissive response to her claim. In each case, the claim was that the incidents comprised direct discrimination in terms of section 13 of the Equality Act and harassment in terms of section 26 of the Equality Act. Legislation

[41]Section 13 of the Equality Act states “(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.” Section 26 of the Equality Act states “(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ….. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;

[42]In this case there is no doubt that the note was left. The claimant did not specify a comparator however the Tribunal assumed that she was relying on a hypothetical comparator on the basis that such a note would not be left for a man in similar circumstances. The Tribunal’s view was that there was absolutely nothing before us to suggest that this was the case. We did not accept the claimant’s suggestion that the words “ya mank” were in any way related to sex. We believed that the word had the meaning which Mr Conway intended was that this was a dirty person who should not have handed over the tug to him in this state. We were in absolutely no doubt that Mr Conway would have left the same note for a man. We also note that in our view Mr Conway was factually correct when he said that he had no knowledge that the claimant would be the one taking over the tug. He had no knowledge as to whether it would be a man or woman. In these circumstances the claimant’s claim of direct sex discrimination simply cannot succeed. With regard to the section 26 claim we accepted that the receiving of the note was unwanted by the claimant. For the reasons given above however we did not consider that the leaving of the note was in any way related to a relevant protected characteristic. Like the first respondent’s representative we found the claimant’s suggestion that somehow the fact that if you take away the letter ‘k’ from the word it spells ‘man’ had any relevance whatsoever. For these reasons the claim against the first respondent falls to be dismissed. Claims against the third respondent

[43]With regard to the claim against the third respondent, once again the claimant did not specify a comparator however the Tribunal proceeded on the basis that she was relying on a hypothetical comparator. Such a comparator would be a man who made a sex discrimination claim 7 months after their contractual relationship had ended which they considered to be unjustifiable. In this case the fact of the matter was that when the claimant wrote to the third respondent on 20 February she did not have a valid sex discrimination claim against them. She confirmed in her evidence that the only matter where she considered they had discriminated against her on grounds of sex was in relation to equal pay. She also considered that she had a claim against them in respect of the Agency Workers Regulations and in respect of equal pay. With regard to her equal pay claim there were two major difficulties which were very obvious to the third respondent. The first of these was that such a claim was time barred. The claimant’s involvement with the third respondent had ended at the end of July and by 20 February such a claim was out of time. Secondly, and more relevantly, the claimant appeared to be relying on an equal pay comparison with someone who had started long after her engagement had ended. As the third respondent was well aware, it is not possible to do that. Their understanding was that the claimant was paid at the same rate as men hired to do the same job at the same time. As noted above the claimant has not at any time produced a comparator who worked at the same job as her at the same time and was paid more. What the claimant was seeking to do was compare her pay with someone who started over a year later. The third respondent’s position was that pay rates would be a matter for the end user. If the end user decided they were no longer going to distinguish between shunters who went out in the road and shunters who did not then that was nothing to do with them. Apart from that, Ms Hunter of the third respondent’s position was that she knew of absolutely nothing else which could give rise to a sex discrimination claim in the short period of four weeks during which the third respondent had been employed by them. Furthermore, Ms Hunter is a highly experienced HR professional. The agency has only recently been set up. She was aware that the agency took pains to comply with its obligations under discrimination legislation. The Tribunal was in no doubt that she genuinely found the claimant’s claim in those circumstances to be asinine. The Tribunal’s view was that whilst it was undiplomatic to say so in her letter of 20 February this was not an act of sex discrimination. There was absolutely nothing to suggest that she would not have used exactly the same words for a male comparator in the same circumstances.

[44]With regard to the remarks in the ET3 which the claimant in her witness statement appeared to wish to substitute as her grounds of claim the Tribunal was again in absolutely no doubt that this was not direct sex discrimination. The third respondent would have used the same words responding to a claim by a male comparator.

[45]With regard to the claim under section 26 once again the Tribunal’s view was that whilst the letter of 20 February and the ET3 response were unwanted by the claimant they were not things done in relation to a protected characteristic. The Tribunal’s view in relation to the ET3 is that for us to have found this to be an act of discrimination would be entirely perverse. We would be allowing a situation where a party can raise proceedings against another alleging sex discrimination and then when that party responds saying “but that’s nonsense” they then say “gotcha”. That is not how discrimination law works. For this reason the claim against the third respondent is also dismissed. 24 November 2025