Ms S Ellis v Deichmann - Shoes UK Ltd: 4107719/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4107719/2024Venue GlasgowHearing 23, 24 and 25 June 2025
Between
Ms S EllisClaimantDeichmann-Shoes UK LimitedRespondent
Before
Employment Judge E MannionMr C Ellis for claimantLay Representative for claimantMs S Webb for respondentLay Representative for respondentDate 19 September 2025
JUDGMENT
[1]The claimant’s case that the respondent did not permit her to address a disciplinary hearing on 17 September 2024 is successful and respondent is ordered to pay £383.28 to the claimant.[2]The claimant’s case that she suffered a detriment as a result of accompanying a colleague to a disciplinary hearing is unsuccessful and therefore dismissed[3]The claimant’s case of sexual harassed under Section 26 of the Equality Act 2010 is unsuccessful and therefore dismissed.[4]The claimant’s case that she was automatically unfairly dismissed as a result of accompanying a colleague to a disciplinary hearing is unsuccessful and therefore dismissed.[5]The claimant’s case that her constructive dismissal was an act of discrimination under Section 39 of the Equality Act 2010 is unsuccessful and therefore dismissed.
REASONS
[1]This is a claim for sexual harassment, automatic unfair dismissal as a result of the claimant accompanying a fellow employee to her disciplinary hearing, constructive dismissal under Section 39 of the Equality Act 2010, detriment as a result of the claimant accompanying a fellow employee to her disciplinary hearing, and a failure to permit the claimant to address said disciplinary hearing. This is denied by the respondent.[2]A bundle of documents were agreed between the parties. Some additional documentation was presented on the first morning of the hearing by Mr Ellis, who sought to add these to the bundle. There was no objection to this and these documents were duly added and paginated.[3]At the outset of the hearing, the issues were discussed and agreed. They are as follows:(i) Harassment of a sexual nature under s26(2) of the Equality Act 2010 in respect of comments which she asserts were made to her by Lewis McKillop, in the period between 20 September and 7 October 2024, namely On being asked by the claimant why his lanyard was so long (to his waist), he stated that it was as long as his cock. He stated that he know where the blind spots were in the store, so could prove it to the claimant, if she wanted. On seeing the claimant trying to compact rubbish in a bin with a baton, he stated that guys were more used to that type of hand motion, which the claimant understood to be a reference to masturbation.(ii) Under section 11 of the Employment Relations Act 1999 (ERelA), that the respondent failed to permit her to act in accordance with s10(2B) ERelA at a disciplinary hearing on 20 September 2024, which she attended as a companion. She was informed that she was not permitted to speak at the meeting and could not do anything other than observe. She was also informed that she could not use her laptop.(iii) Detriment as a result of accompanying a colleague at a disciplinary hearing on 20 September 2024. The claimant asserts that she was subjected to the following detriments as a result of doing so: Lewis McKillop publicly confronted the claimant on/around 21 September 2024, after the disciplinary hearing, and told her she was wrong about being able to speak at the disciplinary hearing, when she was accompanying another worker. He then informed the claimant’s colleagues that she was shouting and being aggressive at the disciplinary hearing; and Her hours were cut. Whilst she generally worked 24 hours per week, following 20 September 2024, in rotas prepared following the disciplinary hearing she was only scheduled on the rotas to work 12 hours per week, which was the minimum stated in her contract.(iv) That she was constructively dismissed, which constitutes discrimination and/or is an automatically unfair dismissal under s12 ERelA, as the claimant resigned in response to the above.[4]I heard from the following witnesses in the following order: (i). The claimant (ii). Lewis McKillop (for the respondent) (iii). Demi Clark (for the respondent) (iv). Nicola Kelly (for the respondent) (v). Mhairi McCafferty (for the respondent) (vi). Sarah Webb (who was also the respondent’s representative)
Relevant law
[5]Section 10 (2B) of the Employment Relations Act 1999 provides that an employer must permit the worker’s companion to address the disciplinary hearing in order to do any or all of the following – put the worker’s case; sum up the case; and respond of the worker's behalf to any view expressed at the hearing. The employer must also permit the companion to confer with the worker during the hearing.[6]Section 10 (2C) confirms that the employer is not required to permit the companion to answer question on behalf of the worker.[7]Section 11 allows a worker to raise a complaint for a breach of Section 10 (2B) and (2C).[8]Section 12 (1) confirms that a worker has the right not to suffer a detriment on the grounds that they accompanied another worker to a disciplinary hearing.[9]The term “detriment” is not defined in Section 12 but it is a common term in employment legislation. The Equality and Human Rights Commission’s Code of Practice on Employment outlines at paragraph 9.8 that a detriment is “anything which an individual concerned might reasonable consider changed their position for the worse or put them at a disadvantage.” In De Souza v Automobile Association 1986 ICR 514 CS the Court of Appeal confirmed that a detriment is where an employee is “disadvantaged in the circumstances and conditions of work”. While this is considered from the point of view of the employee, it must be a reasonable position to hold. It is not necessary for an employee to show that they have suffered a physical or economic condition as per the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337 HL. They also do no need to establish that the employer’s actions had consequences for them in respect of their contract of employment, such as a demotion. It is enough for an employee to have a sense of grievance, and this must be reasonably held.[10]Section 12 (3) states that a worker is unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that they accompanied another worker to a disciplinary hearing. Dismissal under this section can include constructive dismissal.[11]Section 39 (2) of the Equality Act 2010 states that an employer must not discriminate against an employee by dismissing them. Dismissal under this section includes constructive dismissal as per Section 39(7).[12]In a constructive dismissal claim, the employee must establish that there was a fundamental or repudiatory breach of contract on the part of the employer, this breach caused the employee to resign, and they did not delay in resigning.[13]In considering what type of conduct can amount to a fundamental breach of contract the Court of Appeal in Malik v BCCI [1997] IRLR 462 found that an employer must not without reasonable cause act in a way that is calculated to or likely to seriously damage or destroy the trust and confidence on which the employment relationship is founded.[14]It is not possible in a constructive automatic unfair dismissal claim to examine the employer’s reason for dismissal. This is because the decision to dismiss is taken by the employee themselves through their resignation rather than the employer.[15]When looking at a constructive dismissal under Section 12 (3) the tribunal must consider whether the principal reason for the employer committing the fundamental breach of resulted in resignation was the fact that the employee accompanied a fellow employee to a disciplinary hearing.[16]When considering a constructive dismissal under Section 39, the question for consideration is whether the discriminatory conduct on the part of the employer breaches the implied term of trust and confidence in a fundamental manner, entitling the employee to resign and claim dismissal. The relevant test is contractual rather than discrimination and so the breach must be repudiatory or fundamental. Further the breach should cause the resignation and if an employee waits too long before resigning, it may be seen that they affirm the breach.[17]A worker for the purposes of Section 10 and 12 is a worker within the meaning of Section 230 (3) of the Employment Rights Act 1996.[18]Section 230 (3) defines a worker as an individual who works under a contract of employment.[19]Section 26 of the Equality Act 2010 states that an employer harasses an employee if the employer “engages in unwanted conduct of a sexual nature” and this conduct has the purpose or effect of violating the employee’s dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment” for the employee. Conduct done by an employee is deemed to be done by the employer.[20]In Driskel v Peninsula Business Services Ltd and others 2000 IRLR 151 EAT, the EAT found that a common sense approach should be taken when defining conduct of a sexual nature, with reference to the specific facts of each case.[21]The EHRC Employment Code provides examples of conduct of a sexual nature and these include unwelcome sexual advances, touching, sexual jokes or displaying pornographic photographs. The technical guidance by the EHRC expands on this to include suggestive looks or leering, sexual gestures, asking about a person’s sex life or discussing their own sex life.[22]For a successful claim of sexual harassment, the conduct must be unwanted. The test to determine if conduct is unwanted is a subjective one, that is the conduct must be unwanted by the employee as per Thomas Sanderson Blinds Ltd v English EAT 0316/10. The EAT in Insitu Cleaning Co Ltd v Heads 1995 IRLR 4 found that the word unwanted is the same as unwelcome or uninvited.[23]The second limb of Section 26 is that the conduct must have the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Conduct which has that effect, even if that was not the intention, will come within this Section and be unlawful. In considering the effect of the conduct, the Tribunal must have regard to the perception of the employee, the other circumstances of the case and whether it’s reasonable for the conduct to have that effect. The latter is an objective test, while a subjective test is applied to the perception and other circumstances. Lord Justice Underhill in Pemberton v Inwood 2018 ICR 1291 CA provided guidance on the use of the subjective and objective tests when he stated “The relevance of the subjective question is that if the claimant did not perceive their dignity to have been violated or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.” Submissions[24]Both parties made submissions at the conclusion of the evidence. For brevity, these are not included in detail here but for the avoidance of doubt, these submissions were carefully considered when coming to the decision below. Findings in fact[25]The claimant was employed by the respondent as a Sales Assistant from February until 14 October 2024. She worked at the respondent store in Braehead.[26]The respondent is a retail company selling shoes across the UK. They are owned and controlled by German parent company, Deichmann SE.[27]The respondent had the following structure with reference to the Braehead store. Mhairi McCafferty was the Regional Manager who has responsibility for 425 employees in stores across Scotland, Northern Ireland, Wales and the North of England. Beneath her are District Managers, including Nicola Kelly and Demi Clark who manage a number of stores in a particular district. Demi Clarke was District Manager in training at the relevant time and has since been promoted to this substantive role. Under the District Mangers sit the Store Managers who have day to day responsibilities for the management of a particular store. Along with her District Manager role, Ms Kelly was Store Manager for Braehead. Within the stores are Supervisors with responsibility for opening/closing the store, cashing up and some management responsibility of the Sales Assistants, who engage with customers and are primarily responsible for sales. Mr McKillop was a Supervisor in the Braehead store.[28]The claimant was contracted to work 12 hours per week. The respondent also offered regular overtime. The claimant often worked in excess of her contracted hours.[29]Rotas were drafted a week in advance by Ms Kelly. On 10 May 2024 the claimant contacted Ms Kelly asking if her hours of work could be reduced to allow her to care for her mother. This was agreed. (pg 114) On 20 August 2024 the claimant asked if she could reduce the number of days worked per week but retain the same number of overall hours worked. (pg 141) Changes were made to the following week’s rota and the claimant informed this could be accommodated. On 28 August the claimant asked that she not be given shifts on Thursdays or Sundays as she had taken up volunteering on these days, to assist with her mental health. This was accommodated. (pg 142)[30]The back to school period is a very busy time for the respondent business and this usually covers the end of July/start of August. Employees are required to undertake overtime during this period and there is an expectation they are working at least five days a week irrespective of their contracted hours.[31]In July towards the end of a shift, the claimant when undertaking a cleaning task involving a brush and moving it up and down into a bin Mr McKillop stated words to the effect that “guys were more used to that type of hand motion”, which the claimant understood to be a reference to masturbation[32]The respondent scheduled a disciplinary hearing for 17 September 2024 to consider allegations of gross misconduct against a Sales Assistant, Abigail Gill. Ms Gill worked alongside the claimant and they had become good friends. The claimant offered to accompany Ms Gill and act as her representative during this hearing. Ms Gill took her up on this offer. The claimant prepared a statement on her laptop in advance of this hearing with links to various online documents from the Health and Safety Executive and Acas which she intended to refer to at the hearing. 33. 33. The hearing took place in the Braehead store on 17 September and was conducted by Ms Clark. She was joined by Emma Carroll, who was there to take notes. An investigation had taken place and an investigation report prepared. This was the first disciplinary hearing Ms Clark undertook and she spent time in advance reviewing the information compiled as well as the respondent procedures. She spoke with Sarah Webb, HR Manager about the process in advance of the hearing.[34]The claimant brought her laptop with her preparation and documentation into the disciplinary hearing and was informed by Ms Clark that this was not permitted. It is company policy, albeit unwritten, that employees are not permitted to bring electronic devices into disciplinary hearings to ensure they are not recording said meeting. This had not been explained to the claimant or Ms Gill in advance of the hearing and they had no notice of this. The claimant disputed this explaining that the laptop contained information she wanted to use and rely on during the course of the hearing. Ms Clark informed the claimant and Ms Gill that she could give them 10 minutes to review this and take notes. Ms Gill advised that this was not necessary. Had Ms Gill or the claimant taken Ms Clark up on the offer to review their notes and had they required additional time, this would have been allowed.[35]As the disciplinary hearing proceeded, neither Ms Gill nor the claimant advised that there was documentation on the laptop which would allow more detail to be shared or that Ms Gill was unable to respond due to the lack of access to the laptop[36]Ms Clark also informed the claimant that it was not a legal requirement for the claimant to speak on behalf of Ms Gill. The claimant disputed this and asked where this was outlined in the disciplinary procedures. Ms Gill indicated that this was ok and that she wished to proceed. The claimant left the hearing to telephone her father to get his advice on this. In response, Ms Clark adjourned the hearing for a short period to seek advice from Ms Webb. The claimant also spent this time looking at the respondent disciplinary policy to understand the respondent position. The claimant’s father came to the back of the store to speak to her about this. Both the claimant and her father were speaking in raised voices at this time. Their voices were raised to the extent that Amy Mundy, Supervisor, telephoned Ms Kelly to inform her of this and take advice about how best to handle it as customers could hear what was happening.[37]The respondent’s disciplinary procedure at page 95 states that “You have the right to be accompanied by a fellow employee or trade union representative who may act as a witness or speak on your behalf at all stages of the formal disciplinary process.”[38]The disciplinary hearing resumed and Ms Clark reiterated that the claimant was not permitted to speak on behalf of Ms Gill, unless there was a disability or hearing impairment which permitted this. The claimant again disputed this and asked Ms Clark to show her proof of this but she could not. The claimant also attempted to show Ms Clark the respondent disciplinary procedure which provides that she could speak on behalf of Ms Gill but Ms Clark did not look at this. Ms Clark was intimidated by the claimant and found her tone abrupt and rude.[39]Ms Gill indicated that she was content for the hearing to proceed as she wanted to get things over with. The hearing resumed with the claimant present but not making any representations.[40]There was a misunderstanding and/or a miscommunication as between Ms Clark and Ms Webb about the claimant’s role at the hearing and how that was explained to the claimant. It was understood by Ms Webb that the claimant would not answer questions on behalf of Ms Gill, but that the claimant could make representations on behalf of the claimant. It was communicated to the claimant that she could only speak on Ms Gill’s behalf if Ms Gill had a disability or hearing impairment. This was recorded in the minutes of the hearing at pg 159 of the bundle at the claimant’s request.[41]There was no malicious intent on behalf of Ms Clark or Ms Webb in informing the claimant she could not speak on behalf of Ms Gill. It was not an act of bullying or harassment as against the claimant or Ms Gill. It was not a concerted effort to deny Ms Gill her employment rights. Both Ms Clark and Ms Webb were trying to do the right thing. It was an unfortunate error.[42]On 17 September 2024 the claimant’s father Charles Ellis submitted a whistleblowing complaint to the respondent whistleblowing hotline. This was sent to the parent company in Germany. This complaint (pages 170 – 173) was drafted by Mr Ellis but with the details provided by the claimant. Over half of the complaint dealt with the disciplinary proceedings against Ms Gill. The following incidents or events were also included: Mr McKillop asked an employee to pick up chewing gum on the shop floor without gloves on 19 August 2024; Mr McKillop asking staff if they needed to purchase shoecare items as this would raise his figures on 18 August 2024; rotas provided to staff and then changed without adequate consultation; an undated incident of inappropriate sexual innuendo where “staff member was told to get debris off a brush by hitting it off the bottom of the bin, which resulted in an up and down hand motion. Lewis then made a comment that guys would have more experience and be better at doing it because of the hand motion.”; failure to deal with previous whistleblowing complaint about lack of pay for cleaning the store and speculation about who the whistleblower was.[43]While the complaint stated “there are other incidents [of inappropriate sexual comments] with other members of staff but I do not want to call this out as this could make others extremely upset”, the only specific incident is that set out above. The staff member who was subjected to this alleged treatment was not identified.[44]The claimant is not specifically named within the complaint as a whole but in the sections which deal with the disciplinary action against Ms Gill, she is referred to her in her capacity as Ms Gill’s representative.[45]The claimant’s next shift was on 20 September 2024 . During this shift Lewis McKillop, Supervisor informed her that he had heard she was shouting at the disciplinary hearing, which he viewed as out of character and asked her why she was so annoyed in the hearing seeing as what Ms Gill had done was wrong. The claimant responded that it was none of his business. Mr McKillop also informed the claimant that she was incorrect in that she did not have the right to speak in the disciplinary hearing and she responded that this was not true.[46]Following this, Mr Ellis updated the whistleblowing complaint to include the interaction between Mr McKillop and the claimant during her shift (pg 163).[47]The claimant was only given two four-hour shifts on the week beginning 16 September. She took annual leave on the 16 – 18 September and was unavailable on Thursday 19 or Sunday 22 September due to the previous agreement that she would volunteer on these days. The rota for the week was prepared a week in advance and so prior to the claimant acting as a representative for Ms Gill on 17 September.[48]On the week beginning 23 September, the claimant was on annual leave on Monday 23 and Saturday 28 September. She was give three four-hour shift on Tuesday 24, Wednesday 25 and Friday 27 September.[49]The whistleblowing complaint was updated again on 23 September alleging further breaches of the respondent policies in respect of Ms Gill and the disciplinary process against her (pg 169 and 170).[50]The whistleblowing complaint was referred to Marco Josifoski, Director of the respondent organisation by the German parent company on 26 September 2024.[51]On the week beginning 30 September, the claimant was give three four-hour shifts on the 1, 2 and 4 October.[52]On the week beginning 7 October, the claimant was on annual leave from the 9 -13 October and given two four-hour shifts on the 7 and 8 October.[53]In September, the respondent’s store in Sauchiehall Street closed. Some employees from the Braehead store had been assisting with the closure of the store and returned to the Braehead store. A Supervisor, Debra Fullerton who was contracted to work 40 hours per week returned along with another Supervisor, Tom.[54]With the end of the back to school period (from 19 August onward) and the return of staff from the Sauchiehall Street store, overtime was not as freely available as it had been previously. The claimant and two other employees, Patricia and Laura were engaged on their contracted hours only in the three week period from week commencing 16 September onward.[55]The reduction to the claimant’s hours in this period was due to a lack of overtime being available following the closure of the Sauchiehall Street store, return of employees from that store to Braehead and usual quieter period after the return to school rush. This was also impacted by the claimant’s annual leave during that time, her volunteering on Thursdays and Sundays and her previous requests to work less hours to help care for her mother. She continued to receive her contracted hours. The reduction in hours was not linked to the claimant’s role accompanying Ms Gill to her disciplinary hearing.[56]On 7 October, the claimant emailed Ms Kelly resigning from her employment and giving one weeks’ notice of her resignation. The claimant worked a shift on 8 October and was then on holiday. Her last day of employment was 14 October.[57]The claimant’s resignation email gave the following reasons for her resignation – the “inability from multiple managers to follow procedures” including “lying about policies in order to bully younger employees, refusing to send out meeting minutes….disclosing the contents of the meeting to others with no involvement”. It went on to state “I have no confidence in any member of management to enforce policies or be approachable to the point where I feel unable to report unwanted comments that I have been the target of as there is little confidentiality between the supervisors/management and I feel this would not only worsen the situation but create an even more hostile work environment that is already existing. All of these issues have been raised and then passed to Marco Josifoski but unfortunately even then nothing has been done to tackle this.”[58]During her last shift on 8 October Mr McKillop asked again why the claimant was angry at the disciplinary hearing. She responded that she was not angry but that she felt the procedural issues at the disciplinary hearing were unfair. He informed her that he had reported Ms Gill in the first place and asked if he was angry at him. She informed him that she was not angry. At the end of this shift, the claimant asked Mr McKillop why he had two clips on his lanyard and he replied that it was broken. She then asked why he did not get a new lanyard to which he replied the new lanyard would be “down to my cock.”[59]On 8 October 2024, the whistleblowing complaint was sent to Ms Webb for the first time and she was asked to support Ms McCafferty, who was appointed to investigate the complaints. Ms Mc Cafferty cleared her diary to come to the Braehead store on 10, 11 and 14 October and speak to all members of staff about the complaint and subsequent additions. Ms McCafferty was also informed that the claimant had resigned.[60]Ms McCafferty contacted the claimant by text message dated 10 October to arrange a meeting to discuss her resignation as the claimant was on annual leave. (pg 193) The option of meeting at the Argyle Street or Clydebank stores are offered to the claimant. While the claimant offered a telephone call in the first instance, this was not taken up by Ms McCafferty who wanted to meet in person in line with the other employee meetings. The claimant was also informed she did not have the right to be represented at that meeting. After some back and forth on dates and locations, the claimant offered to meet Ms McCafferty at the Braehead Store at 3pm on 14 October and Ms McCafferty agreed.(pg 197)[61]Mr McKillop was on shift on 14 October when the claimant attended the Braehead store to meet Ms McCafferty. The claimant did not raise any concerns with Ms McCafferty at that time. Ms McCafferty was unaware prior to the meeting with the claimant that she was the staff member to whom the inappropriate sexual comments were made as detailed in the whistle blowing complaint.[62]Ms McCafferty took notes on her laptop as the claimant spoke during the meeting on 14 October. These were discussed with the claimant at the time. The notes at pgs 198 – 203 are an accurate note of what was discussed at that meeting. The claimant confirmed that Mr McKillop made comments to her about “guys are better at it because they have more experience with this” hand motion with reference to removing dirt from a brush. The claimant did not inform Ms McCafferty that Mr McKillop had recently made a further comment referencing the length of his penis on 8 October.[63]As the 14 October was the claimant’s last day of employment with the respondent, there was no further involvement of the claimant in Ms McCafferty’s investigation.[64]The claimant began a period of employment with the retail store Doc Martin shortly after her employment with the respondent came to an end. She applied for this role while she was still employed by the respondent and before her resignation on 7 October. This role was a temporary role until after the Christmas retail period. The claimant worked less hours than when she was employed by the respondent but was paid at a higher rate of pay. The claimant is currently employed by Doc Martin.[65]As the claimant was employed under a contract of employment, she comes within the definition of a worker and so can raise this complaint.[66]It is not in dispute that when the claimant attended the disciplinary hearing on 17 September to accompany Ms Gill she was informed that she was not permitted to speak on Ms Gill’s behalf. Both Ms Webb and Ms Clark clearly admitted in their evidence that this is what was communicated to the claimant. Ms Webb confirmed that there was confusion between herself and Ms Clark and took responsibility, as the HR Manager, for the fact that this had occurred.[67]While I heard evidence that Ms Gill was content to proceed with the hearing, that she wanted to get it over with and that in the respondent’s view this did not impact the outcome of the hearing, those considerations are not relevant to whether Section 10(2B) has been breached. The question is whether the employer permitted the companion to represent the worker or not. It is clear from the admissions of the respondent witnesses that the claimant, although present at the hearing, was not permitted to address the hearing. This is in breach of Section 10(2B).[68]The claimant also alleged that the “no electronics” policy from the respondent breached Section 10(2B).[69]Section 10(2B) requires that an employer ‘must permit’ the companion to address the hearing and provides elaboration on what this might entail – putting the worker’s case, summing up and responding on their behalf (while not answering questions on their behalf). I was required to consider whether not allowing a laptop in the disciplinary hearing means a companion is not permitted to address the hearing.[70]As claimant was informed she was not permitted to speak on behalf of Ms Gill we cannot know, as a matter of fact, if the claimant was unable to address the hearing without access to the laptop. What I did hear in evidence, however, is that when Ms Clark informed the claimant that she was not entitled to speak on Ms Gill’s behalf nor use her laptop, she argued against this. She also took a break to telephone her father for advice, and to get a hard copy of the respondent disciplinary procedure which she brought back to the hearing to establish her point. She made attempts to show this policy to Ms Clark. At the end of the hearing, she requested that the note include a statement that she was not permitted to address the hearing. In the limited confines available, the lack of access to her laptop did not stop her from addressing the hearing on procedural flaws. Had she been allowed to undertake the full role that Section 10(2B) allows for, I find on the balance of probabilities that she would have done so in the absence of her laptop and sought appropriate breaks to review her documentation where necessary. The “no electronics” policy therefore does not breach Section 10(2B).[71]The remedy for a breach of Section 10(2B) is two weeks’ pay and so this is awarded to the claimant. The claimant’s weekly rate of pay was £191.64. Did the claimant suffer a detriment on that grounds that she accompanied Ms Gill to her disciplinary hearing contrary to Section 12 of the Employment Relations Act 1999?[72]The claimant maintained that the conversations started by Mr McKillop on 20 September and 8 Octber were detriments under Section 12.[73]While the claimant’s evidence covered the narrative of what happened in those conversations with Mr McKillop, there was little further evidence on how these conversations amounted to a detriment or how this detriment was done on the grounds that the claimant accompanied Ms Gill to her disciplinary hearing. After a line of questions on the confidential nature of a disciplinary hearing which the claimant believed had been breached, it was confirmed that the detriment was not tied to the perceived breach of confidentiality but the manner in which the conversations took place.[74]I heard no evidence of the impact of the conversations on the claimant. She did not describe being upset or uncomfortable or frustrated with the conversations. She described the atmosphere in the store on 20 September as ‘tense’ but that this was a general feeling as a result of the disciplinary hearing, not linked to the conversation itself. There was no suggestion by the claimant that Mr McKillop was aggressive or overbearing or intimidating in his manner of speaking to her. There was no suggestion from the claimant that she viewed these conversations as an informal warning or criticism from a supervisor.[75]Taking all of this into account and with reference to the case law, I find that the claimant was not subjected to a detriment on the grounds that she accompanied Ms Gill to her disciplinary hearing, by the two conversations with Mr McKillop on 20 September and 8 October 2024. She described no disadvantage to herself in terms of her circumstances and conditions of work. If she has a sense of grievance about the descriptor ‘shouting’, it was unreasonably held in circumstances where she confirmed in evidence she spoke with a raised voice with her father on 17 September and that he too was loud.[76]In respect of the claim that her hours of work were reduced, I found that there were other factors for this rather than her attendance at the disciplinary hearing. The rota for the week beginning 23 September was created before the claimant attended the disciplinary hearing and so could not have influenced the hours given. In the subsequent weeks, hours were given on the days where the claimant was available to work. There was an overall reduction to hours available for all staff due to the end of the back to school period and the return of employees from the Sauchihall Street store. The claimant was not the only employee in these weeks who had her hours reduced to her contracted hours. While the claimant may have perceived that this reduction in hours was a result of her accompanying Ms Gill to her disciplinary hearing, this was not borne out by the facts.[77]This head of claim is unsuccessful and is dismissed. Was there a constructive automatic unfair dismissal on the ground that the claimant accompanied Ms Gill to her disciplinary hearing?[78]Taking this into consideration, the question to be answered is whether accompanying Ms Gill to her disciplinary hearing is the principal reason for the employer committing the fundamental breach of the employment contract that precipitated the resignation. If so, the dismissal will be automatically unfair.[79]The claimant’s resignation email sets out broadly the reasons for her dismissal. This includes her perception that managers are unable to follow procedures leading to a lack of confidence in management to enforce policies or be approachable. The email also references a lack of confidentiality amongst management which has resulted in her feeling unable to report matters and that it could create ‘an even more hostile work environment than already existing.’ It also states that these issues have been raised with Marco Josifoski but nothing has been done to tackle them.[80]In evidence, the claimant stated that the final straw which led to her resignation was that she made a report to management of sexual harassment by Mr McKillop and she was required to work with him after this.[81]I considered whether the reasons as set out in the letter of resignation and in evidence amounted to fundamental breaches of the implied term of trust and confidence and if so, was the breach caused by the fact she accompanied Ms Gill to her disciplinary hearing. Inability to follow procedures[82]For a successful constructive dismissal claim, the breach must be as between the claimant and the employer rather than the employer and another employee. It is the claimant’s contract which must be breached by the employer’s actions. Some of alleged procedural failures related to Ms Gill, in particular an allegation that the respondent failed to provide minutes of meetings and an allegation the respondent disclosed contents of the meeting to those not involved. Those failings which relate solely to Ms Gill are therefore not considered here.[83]I found that the respondent failed to permit the claimant to address Ms Gill’s disciplinary hearing. This was a procedural failure. I considered the respondent’s actions was not calculated or likely to seriously damage or destroy the trust and confidence as between the claimant and the respondent. The focus of the disciplinary hearing was the employment relationship between Ms Gill and the respondent and whether there was sufficient information before the respondent to find that misconduct occurred and a disciplinary sanction applied. The impact of the respondent’s failure was felt by Ms Gill rather than the claimant. While the claimant was disappointed and angry with the outcome, her contract of employment with the respondent was not affected by their failure.[84]Even if I am wrong and the respondent’s failure was a fundamental breach of the implied term of trust and confidence between the parties, this breach was not on the ground that the claimant accompanied Ms Gil to her disciplinary hearing. It is accepted that this failure occurred while the claimant was accompanying Ms Gill. On the grounds of is analogous to ‘because of’ or ‘the reason for’. The respondent did not refuse the claimant permission to address the disciplinary hearing because she was there as companion. They did so due to a misunderstanding and miscommunication between Ms Clark and Ms Web. There was no evidence that they came to this decision simply because the claimant was present. Lack of confidentiality[85]In respect of the disciplinary hearing, there was no evidence that the contents of the disciplinary hearing, the allegations Ms Gill was facing or her explanations in response were disclosed or discussed widely. While the outcome may have been inferred given that Ms Gill did not return to work, there was no evidence that the disciplinary outcome was shared with employees.[86]I accept that others outside of the disciplinary hearing discussed the claimant’s volume levels on the day. Ms Mundy telephoned Ms Kelly for advice given the volume Mr Ellis and the claimant were speaking at on the shop floor. Mr McKillop informed the claimant he heard she was shouting. I do not consider that this indicates a lack of confidentiality on the part of the respondent given the claimant accepted she had loud conversations with her father on the telephone and in person that day.[87]Mr McKillop in his conversations on 20 September and 8 October said words to the effect that the claimant was wrong for believing she was entitled to speak at the disciplinary hearing. This is something that was discussed in the hearing itself. Mr McKillop stated in evidence that he overheard this information but was not sure who he overheard. This evidence was accepted. As there was no evidence on who Mr McKillop overheard, I cannot make any findings in respect of whether that conversation was a breach of confidentiality. Any breach of confidentiality in Mr McKillop overhearing was therefore on the balance of probabilities inadvertent.[88]I find that these actions do not amount to a fundamental breach of confidentiality or breach of the implied term of trust and confidence. At most, the breach was inadvertent and so does not meet the hurdle of sufficiently serious. Even if those breaches were so serious as to amount to fundamental breaches, there was no evidence that they were done on the grounds of the claimant accompanying Ms Gill to her disciplinary hearing.[89]It is acknowledged that Mr McKillop admitted that he spoke about Ms Gill’s disciplinary process in the days before her disciplinary hearing. That is a breach that relates to Ms Gill rather than the claimant as it is Ms Gill’s confidential employment information which is being disclosed. It does not demonstrate a breach calculated or likely to seriously damage or destroy the trust and confidence as between the respondent and the claimant. Further, it occurred before the claimant took up the role of companion and so cannot be said to be breach as a result of her accompanying Ms Gill. Failure to address investigation[90]It is not in dispute that the respondent began to investigate Mr Ellis’ complaint on the 8 October, three weeks after receipt. I accepted the respondent’s explanations for this delay. Firstly the complaint was received by their German parent company. Secondly given the issues of management failings set out in that complaint it was necessary to check Mr Ellis was content for his complaint to be passed to management for investigation. Thirdly Ms Webb as HR manager was on annual leave in the week preceding 7 October. I do not consider that there was a failure to investigate the complaints. There was ongoing correspondence between Mr Ellis and the whistleblowing hotline in this three week period during which Mr Ellis was updated on the respondent’s steps and he provided further events that required investigation. Ms McCafferty was ultimately appointed on the 8 October and began meeting with employees by 10 October. It was not the case that the complaint was met by radio silence by the respondent. They engaged with Mr Ellis and made arrangements to investigate the complaints.[91]I therefore do not consider that there was a failure to investigate the complaints raised by Mr Ellis on the claimant’s behalf and as such, no breach of the implied term of trust and confidence.[92]Even if it were the case that the manner in which the respondent dealt with the investigation amounted to a fundamental breach of trust and confidence, there was no evidence before me that the respondent’s actions were on the grounds of the claimant accompanying Ms Gill to her disciplinary hearing. No link was identified between the claimant accompanying Ms Gill and the respondent’s actions on receipt of the whistleblowing complaint. Final straw – failure to remove Lewis McKillop[93]The claimant’s position was that she was required to work alongside Mr McKillop in the weeks following the whistleblowing complaint, in contravention of the respondent bullying and harassment policy states that on receipt of a formal complaint, “we will take action to separate you from the alleged harasser.”[94]There is one specific allegation of sexual harassment within the whistleblowing complaint and while Mr McKillop is named, the other staff member involved is not. I accepted the respondent position that they could not have known the claimant was the staff member involved. The claimant is referred to elsewhere in the whistleblowing complaint as ‘an employee of Deichmann was involves in acting as a representative for a disciplinary hearing’. There are four other incidents referred to, including the specific allegation of sexual harassment, but those other instances refer to ‘a staff member’, ‘staff’, ‘staff member 1’ and ‘staff member 2’. On reading the whistleblowing complaint as a whole, I considered that on the balance of probabilities, it was not apparent to the respondent that the claimant was the subject of the specifical allegation of sexual comments. As such there was no breach of the implied term of trust and confidence in circumstances where the claimant and Mr McKillop were working together after the whistleblowing complaint was received.[95]Even if it were the case that the respondent’s inactions amounted to a fundamental breach of the implied term of trust and confidence, there was no evidence that the respondent’s inactions were a result of the claimant accompanying Ms Gill to her disciplinary hearing. There was nothing to infer this was the impetus for the respondent’s actions.[96]Taking all of this into account, I find that the claimant was not automatically unfairly dismissed contrary to Section 12 of the Employment Relations Act as the breaches she relied upon to resign did not amount to fundamental breaches of contract nor were they on the grounds that the claimant accompanied Ms Gill to her disciplinary hearing.[97]This head of claim is unsuccessful. Did the respondent discriminate against the claimant by dismissing her under Section 39 of the Equality Act 2010.[98]I then considered if the claimant’s resignation came within the ambit of Section 39 of the Equality Act. There are two potential aspects to consider here – the live allegations of sexual harassment at the time of the resignation and the manner in which the respondent dealt with complaints.[99]There is only one allegation of sexual harassment which pre-dates the claimant’s resignation on 7 October 2024. The claimant understood Mr McKillop to be referring to masturbation when she asked how to get dirt from a brush or mop. This occurred at some stage in July 2024. I found that on the balance of probabilities, this event occurred as described by the claimant but found below that this did not amount to sexual harassment.[100]Even if the incident did amount to sexual harassment under Section 26 of the Equality Act, the resignation email makes no explicit or direct reference to this specific incident, nor more broadly to sexual comments allegedly made by Mr McKillop or others. The email referred to unwanted comments but in the context of the email appear to refer to comments made to the claimant after she accompanied Ms Gill to her disciplinary hearing. The resignation came about three months after the comments were allegedly made. For a successful claim of constructive dismissal, an employee must resign in response to the conduct. I find that this did not occur here. When asked why she resigned, she gave evidence in the terms sets out in the paragraphs above but did not refer to the July incident as a factor.[101]The secondary basis for a claim under Section 39 is that the respondent failed to deal with her complaints and that this failure was a further act of discrimination. As a matter of fact, a whistleblowing complaint was lodged on 17 September 2024, but not by the claimant. Ultimately it was determined that the claimant’s father made the whistleblowing complaint. As above, the complaint was concerned primarily with alleged procedural failings by management stemming from Ms Gill’s dismissal and only one complaint alleging discrimination was made. It was not apparent that the claimant was the staff member involved.[102]As above, I find that while there was an initial delay, this complaint was investigated thoroughly by the respondent. Ms McCafferty met with employees over NUMBER of days including the claimant and Mr McKillop. The claimant and Mr McKillop were asked about all aspects of the whistleblowing complaint. The claimant was invited to provide other information. A report was prepared by Ms McCafferty with her findings although this was not shared with the claimant as she was no longer an employee of the respondent by that date.[103]Evidence was led of the investigation undertaken by Ms McCafferty from 10 October, with issue taken by the alleged informal manner of the investigation meeting which the claimant maintained removed her right to be accompanied by a trade union representative. This investigation took place after her resignation and it was accepted that it could not have influenced her decision to resign but instead it was submitted that it was indicative of the respondent’s approach to complaints.[104]I found that the question of the right to be accompanied is not derived from the status of the meeting, be it formal or informal. An employee does not have a right to be accompanied to any and all meetings with an employer. The legal right to be accompanied arises in specific circumstances such as at disciplinary or grievance hearings. Some employers will extend the right to be accompanied to meetings, including investigation meetings, under other policies such as a whistleblowing policy. Where they do so, it is a decision of the employer and not done by way of a legal obligation. I was not taken to any policy nor did I hear evidence that the respondent’s policies extended this right beyond their legal obligations.[105]Evidence was also led that the investigation meeting between Ms McCafferty and the claimant took place at the Braehead store while Mr McKillop was on shift. This was a further example from the claimant’s perspective of the failure by the respondent to comply with their policy and separate Mr McKillop from the claimant, albeit one that could not have influenced her decision to resign. I found that the Braehead store was suggested by the claimant over other stores, she did not indicate an issue with Mr McKillop’s presence in the store, but more crucially, Ms McCafferty and the respondent were unaware until that meeting on 14 October that the complaint of alleged sexual involved the claimant[106]I found that there is no basis to conclude that the respondent failed to address her complaints and that entitled the claimant to resign. The whistleblowing complaint was not submitted by the claimant and was primarily concerned with the disciplinary process which resulted in Ms Gill’s dismissal.[107]I found that as a whole the claimant’s dismissal did not come within the ambit of Section 39 of the Equality Act and so is unsuccessful. Sexual harassment Did the respondent subject the claimant to unwanted conduct of a sexual nature with his comments on 8 October 2024 and in July 2024?[108]The first step in considering the allegation of sexual harassment was to consider if the conduct had in fact occurred as both instances were denied by the respondent.[109]The claimant in evidence confirmed that Mr McKillop did not speak to her about blind spots in the CCTV for the store or say that these could be used to show her the length of his penis. This had been included in her claim due to a miscommunication between herself and Mr Ellis. As such, this aspect of the allegation of sexual harassment occurring on 8 October has not be considered. 110. [The respondent denied that Mr McKillop made any reference to his penis when talking with the claimant on 8 October and pointed to the inconsistencies in what was pleaded “as long as my cock” versus what was said by the claimant in evidence “down to my cock.” They submitted that the claimant had an opportunity to raise these comments with Ms McCafferty on 14 October but did not do so.][111]I considered Mr McKillop’s evidence as a whole and in relation to the two allegations. He confirmed he had a conversation with another employee in July where he showed her how to get dust off the mop but that he did not make any comments alluding to masturbation. He denied emphatically that he made the comments on 8 October stating “absolutely not” when they were put to him.[112]He also stated more generally that it is not his intention to be inappropriate in workplace conversations. He admitted more generally that if someone overheard him say something, they might interpret what they overhear as inappropriate. His evidence as that he would make jokes but would not cross the line and would keep things from being vulgar or offensive. I was brought to his responses to Ms McCafferty’s questions during the whistleblowing investigation where he stated that looks he has given may be described as suggestive “out of context”. When asked if he made comments or sexual innuendos which could have been upsetting or offensive he replied “perhaps out of context”, that it is not done intentionally and that he is always clear where he is joking and not serious (pg 188).[113]I found the claimant’s evidence in respect of the two incident to be clear. I considered the respondent’s position that the claimant’s version of 8 October comments was inconsistent as there was a change in wording from the pleaded comment to what was confirmed in evidence, a change from ‘as long as my cock’ to ‘down to my cock’. I found that this change was minimal and did not alter the nature of what was said.[114]I also considered the respondent’s position that the claimant did not raise the 8 October comment with them at her investigation meeting with Mrs McCafferty. This is accepted but is not evidence against the comment being made as the focus of the whistleblowing complaint was Ms Gill’s disciplinary process rather than issues of sexual harassment. As such the claimant’s failure to raise the comment with Ms McCafferty is not indicative of that the comment was not made.[115]Taking all of this into account, I found on the balance of probabilities that Mr McKillop told the claimant he did not get a new lanyard as it would be ‘down to my cock’ on 8 October 2024 and that I he made comments to the claimant alluding to masturbation in July 2024. I considered in particular his admissions that he may say things which are perceived as offensive or upsetting out of context or if overheard when making these findings.[116]I then considered if the conduct was of a sexual nature taking into account the guidance of a common sense approach and the EHRC examples. I found the 8 October comment is a clear example of conduct of a sexual nature. It makes reference to Mr McKillop’s genitalia in a vulgar fashion during a conversation about a lanyard. In respect of the interaction in July 2024 which alluded to masturbation, I found that this too was conduct of a sexual nature. While not explicit in the manner of the 8 October 2024 comments, it was inuendo in respect of a sexual act.[117]I considered if the conduct on both occasions was unwanted, using the guidance of unwelcome or uninvited. I found that the conduct was unwanted on both occasions. Both witnesses were clear that they were not particularly friendly in the workplace, that Mr McKillop was the claimant’s supervisor, that their conversations were concerned primarily with work related discussions and that they did not have an informal or friendly rapport where they would both engage in this type of conversation. The comment on 8 October was a response to a question about Mr McKillop’s lanyard. The comment in July was in response to a question about cleaning duties. I found both comments to be uninvited.[118]I then considered the purpose of the comment. As Mr McKillop denied making the comments, there was no evidence from him around his thought process when saying these things to the claimant but I took into account his evidence around making inappropriate comments generally in the workplace, particularly that if he says something which is perceived to be inappropriate, it is not done intentionally. I found that the comments did not have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.[119]Finally I considered the effect. In this, I considered the perception of the claimant, the circumstances of the case and whether it was reasonable for the conduct to have the stated effect.[120]The first part of the test is a subjective one focused on the claimant’s own perception of the conduct. There was very limited evidence from the claimant on her perception of the conduct. She stated that she was uncomfortable about the 8 October comments but nothing more. While there was a general refence to her mental health which may have inferred her perception of the comments, there was no specific evidence heard about this.[121]Section 26 is not concerned with conduct which an employee simply does not like. The wording intimidating, hostile, degrading, violation of dignity are included in the section to show the strength of feeling that the conduct should invoke. While I found that the claimant was uncomfortable there was no evidence that she perceived the conduct on the 8 October or in July 2024 violated her dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for her. In the absence of this perception, with reference to Underhill’s guidance in Pemberton, the unwanted conduct although of a sexual nature, cannot be found to be sexual harassment under Section 26 on these facts. It is not that a reasonable reading of these comments would find them to create an offensive environment; it is that the claimant believed this to be the case.[122]I find therefore that the claim of sexual harassment is not made out and so is unsuccessful. 19 September 2025