Miss A McGettigan v Unipart Group Ltd and Single Resource Ltd: 6001715/2023
EMPLOYMENT TRIBUNALS
Case No 6001715/2023
Between
Miss A McGettiganClaimantUnipart Group Ltd and Single Resource LtdRespondent
Before
Employment Judge Butler
Members
Miss K McLeodMr J AkhtarIn person for claimantMr I Pettifer (instructed by Solicitor) for respondentDate 23 June 2026
JUDGMENT
The unanimous judgement of the Tribunal is that: The claims against the first Respondent having been settled by consent, are dismissed on withdrawal by the Claimant. The claims against the second Respondent of harassment on the grounds of sex and sexual orientation are not well-founded and are dismissed.
REASONS
In this judgment, the party referred to as Single Resource Limited (2) above, is referred to as “the Respondent”.
Background
[1]The claim form was presented to the Tribunal on 5 September 2023 following a period of early conciliation between 11 and 14 August 2023. The Claimant brought claims of harassment on the grounds of sex, sexual orientation and whistleblowing. The whistleblowing claim was subsequently withdrawn.[2]The Respondent is an Employment Business which supplies agency workers to its clients, and Respondent (1) above is one. The Claimant commenced employment with the Respondent on 8 March 2023 and was assigned to work for Respondent (1) as a warehouse operative. She claims to have been harassed by two male colleagues from her first day of work at Respondent (1)’s warehouse and then by three female colleagues before being signed off on sickness absence by her GP for an initial period of thirteen (13) weeks on 19 September 2023 due to stress at work. She did not return to work with the Respondent after this absence.[3]The Respondent denies all of the claims, largely on the basis that the alleged acts of harassment never happened.[4]The Claimant is a litigant in person and there have been three preliminary hearings which were necessary to clarify the claims and to consider joining in the Respondent as they were served with the claim form sometime after Respondent (1).
The Evidence
[5]We heard evidence from the Claimant and for the Respondent, from Ms K Kobylinska (Ms Kobylinska), Senior Account Manager, Ms K Burke (Ms Burke), former People Associate in the Respondent’s HR department, Mr M Hussain (Mr Hussain), Warehouse Operative, Ms I Birtles (Ms Birtles), Agency Worker in the Batch Pick department of Respondent (1), and Ms T Kolmane (Ms Kolmane), Team Leader employed by Respondent (1). All witnesses provided witness statements (the Claimant’s running to 123 pages) and were cross-examined.[6]There was an agreed bundle of documents running to 476 double-sided pages and references to page numbers in this judgment are to page numbers in that bundle.
The Issues
[7]There was an agreed list of issues which was prepared before Respondent (1) settled the claims against it. We spent time at the start of the hearing agreeing which of the issues fell away as a result of this. The issues were clarified in the preliminary hearing conducted by Employment Judge Heap on 14 January 2025 at clause 16 of the Judge’s case summary. It was agreed between the parties that the allegations made by the Claimant which are to be determined at this hearing are briefly set out below, adopting the lettering in Judge Heap’s summary: (a) Between 13 and 24 March 2023, on every occasion they worked the same shift, Mr Hussain stared/leered and looked the Claimant up and down. (b) On the same dates, Mr Hussain asked her intrusive questions about her private life and sexual orientation and, having been informed that she had lived in Canada, told his Canadian friend who also worked for the Respondent at the same warehouse, and they jointly regularly loitered around her. (c) On the same dates being followed around by Mr Hussain. (d) On 14 to 17 March 2023, Mr Hussain loitered around the Claimant while she was scraping labels off boxes and saying to her, “aren’t women supposed to be good at cleaning?” (e) On the same dates, Mr Hussain calling the Claimant a useless woman and that her talents must be in the bedroom as they were not in cleaning. (f) On 17 March 2023, Mr Hussain waiting for the Claimant outside the female locker room, following her through the car park to the main road and asking what her plans were for the weekend. (h) On 20 March 2023, Mr Hussain waited for the Claimant outside the security gates, tried to walk with her towards her home, said he was single and awaiting an arranged marriage but had sexual needs. When the Claimant told him to leave her alone, he called her a “frigid bitch” and “needed a good man who could give her a good seeing to”. (i) On 21 March 2023, the Claimant overheard Mr Hussain and others discussing which female nationalities were good in bed. (j) On the same date, the Claimant saw Mr Hussain and other colleagues making crude hand gestures, saying they should change hands to avoid spraining their wrists. (k) On the same date, on seeing the Claimant kneeling down to empty a box, Mr Hussain said, “while you are down there”. (l) On the same date, when the Claimant was bending over a shelf or cleaning something, he approached her from behind and rocked his hips back and forth imitating sexual intercourse. (n) On 17 May 2023, Ms Birtles accused the Claimant of being “autosexual”. (r) On 28 August 2023, the Claimant was given a verbal warning by Ms Burke and Ms Kobylinska after Ms Kolmane falsely accused her of yelling at her as a result of the Claimant having rejected Ms Kolbane’s sexual advances.
The Facts
[8]In relation to the issues, we find the following facts on the balance of probabilities:(a) At all material times, the Claimant was employed by the Respondent agency and assigned to work at the warehouse of Respondent (1) in Burton-on-Trent as a Warehouse Operative. She was initially allocated to work in the PBS Putaway department on 13 March 2023 after her induction and subsequently in the Batch Pick department on 27 March 2023.(b) Mr Hussain was also a Warehouse Operative. Although he has lived in the UK since 2014, his English is still not particularly good and colleagues acted as interpreters for him during his induction at the warehouse and an interpreter was booked to assist at this hearing. The Claimant had a good relationship with Mr Hussain who speaks some Spanish. She was learning to speak Spanish at the time, and he helped her with her pronunciation and vocabulary, describing him as her mentor in this regard in her evidence.(c) In relation to the allegations made by the Claimant about Mr Hussain’s conduct towards her, as set out in the issues recorded above, we find they did not happen. Nevertheless, the Claimant complained about Mr Hussain’s alleged conduct to the Respondent on 24 March 2023 and insisted on being moved out of the Putaway department. This was done and she transferred to the Batch Pick department on 27 March 2023.(d) Upon moving to the Batch Pick department, Ms Kolmane, who is employed by Respondent (1), became the Claimant’s team leader. The Claimant told Ms Kolmane that she had been sexually harassed by two men whilst working in the Putaway department but said she did not know their names. Ms Kolmane offered to walk through the Putaway department with the Claimant in order to identify and get the names of those men. The Claimant declined this offer saying she did not want to take matters further.(e) Probably on 17 July 2023, the Claimant had a heated discussion with Ms Birtles and Ms Dollings who were nil pick administrators in the Batch Picking department and whose desks stood opposite Ms Kolmane’s. After hearing this discussion, Ms Kolmane asked Ms Birtles and Ms Dollings what had happened and they said the Claimant had asked them to notify them of any mistakes she made before Ms Kolmane could talk to her about them. Ms Kolmane subsequently asked the Claimant about the discussion and the Claimant said Ms Birtles and Ms Dollings had been rude to her when talking about nil pick mistakes. Ms Kolmane said the Claimant could write a letter about this and the Respondent would investigate.(f) About ten days later, the Claimant left a six-page handwritten letter on Ms Kolmane’s desk (page 122-126). In it, the Claimant said Ms Birtles had been following her around talking about her sexuality and that she had sexual feelings for the Claimant, amongst others. She accused Ms Dollings of threatening her with disciplinary action over her mistakes. They came back to the Claimant several times and this started the heated discussion that Ms Kolmane had heard. Ms Kolmane told the Claimant that she should give the letter to the Respondent, but the Claimant said she had complained to them before about sexual harassment and they had done nothing. Ms Kolmane passed the letter to Ms Jablonska, who said she had had meetings before with the Claimant about her complaints and would arrange a further meeting.(g) Ms Kolmane spoke to the Claimant again and asked her what outcome she wanted from her letter. The Claimant replied that she just wanted to be left alone and did not wish to proceed on a formal basis. Ms Kolmane directed Ms Birtles and Ms Dollings not to discuss any mistakes the Claimant made with her directly but to advise Ms Kolmane who would then speak to the Claimant.(h) Sometime later, on a date unknown, Ms Kolmane, Ms Birtles and the Claimant were working on a shift until 10pm. The Claimant came down from the top floor of the factory and shouted at Ms Birtles that she was “fed up with this sexual harassment”. When Ms Kolmane spoke to the Claimant about this she said Ms Birtles was still following her around. When asked, she said this had happened ten minutes previously, but Ms Kolmane told the Claimant that Ms Birtles had been at her desk close to Ms Kolmane’s for a considerable time. The Claimant replied that the following her around may have happened earlier but declined when Ms Kolmane invited her to view CCTV recording. When asked if she was okay, the Claimant told Ms Kolmane that she was menopausal.(i) On 28 August 2023, the Claimant asked Ms Kolmane to hold a letter she had received from HR which she came to collect later in the day. She opened it in the presence of Ms Kolmane and then began asking her questions about it. The Claimant became frustrated and began shouting. She said she had been sexually harassed by various men in the Putaway department and then by two lesbians in the Batch Pick department and that the warehouse was full of sexual harassment wherever she was sent to work in the warehouse. Ms Kolmane reported this incident to her Line Manager, Mr M Ryan.(j) After this incident, the Claimant then made allegations of sexual harassment against Ms Kolmane. These are set out in the issues above but include cancelling the Claimant’s shifts after she rejected Ms Kolmane’s sexual advances, sending her to work in a hot part of the warehouse for the same reason, causing her to be given a verbal warning for the same reason and giving her heavy work for the same reason.(k) Following presentation of the Claimant’s letter of 21 July 2023 to Ms Jablonska, the Respondent commenced an investigation. The Claimant was also interviewed by Ms Burke, with Ms Kobylinska in attendance, in response to her conduct when shouting at Ms Kolmane. She was told by Ms Burke that her conduct had been inappropriate in the workplace. The Claimant was not given a verbal warning. In this meeting, the Claimant was unable to give dates of various allegations of sexual harassment (page 161). When asked what outcome the Claimant wanted from her complaint, she just said she wanted to go to the Tribunal (page 162). Ms Burke tried to clarify matters by asking the Claimant further questions she had prepared but the Claimant said they were not relevant, the issues could have been rectified months before and, “that’s why you’re going to the Tribunal. You are liable” (page 163-164). Submissions[9]Both Mr Pettifer and the Claimant provided written submissions and gave further oral submissions. We do not rehearse those submissions here but confirm that we took full account of them in reaching our decision.
The Law
[10]S.26 of the Equality Act 2010 provides:(1) A person (A) harasses another (B) if- (a) A, engages in unwanted conduct related to a relevant characteristic, and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) A, also harasses B- (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A, also harasses B if- (a) A, or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[11]S. 136 EQA provides:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.
Discussion and Conclusions
[12]This is a case which turns entirely on the Tribunal’s findings of fact. The Claimant says the acts of harassment, which form the basis for her claims against the Respondent, actually happened from day 1 of her assignment at the Respondent’s client’s warehouse. The Respondent says they did not happen at all, and we prefer the evidence of the Respondent’s witnesses. It is incumbent upon us to explain why.[13]The evidence of the Respondent’s witnesses was in our view honestly given. In cross-examination their answers were given without hesitation. Only Ms Kolmane became excited during her evidence and was clearly affronted by the Claimant’s allegation that she was a lesbian and had touched the Claimant in a sexual way. Ms Kolmane was at pains to point out several times whilst giving her evidence that she is heterosexual and has been in a relationship with her male partner for several years.[14]Mr Hussain was allegedly the first person to sexually harass the Claimant and in his evidence, he contradicted all of the comments the Claimant had made about his personal life. For example, he did not speak fluent Spanish, did not remember the Claimant at all, did not have a Canadian friend at work, had got married in 2019 and was not, therefore, awaiting an arranged marriage as the Claimant asserts. Mr Hussain gave evidence through a Punjabi interpreter and clearly needed one. This in itself suggests that the allegation he made sexual comments to and about the Claimant were unlikely to have been made by him.[15]Ms Birtles was also clear in her evidence. Of the Claimant’s allegation that she suggested the Claimant was autosexual she confirmed she did not know what it meant. As an aside, neither did the Tribunal members who had to look it up.[16]The Claimant is a litigant in person, and we make some allowances for her lack of legal training but, ultimately, she brought claims and is responsible for pursuing them. She had to be reminded on a few occasions that cross-examination involves asking questions and not giving further evidence. She took the gentle reminders given by the Employment Judge with good grace. There were, however, a number of occasions where her evidence did not stand up to the scrutiny of Mr Pettifer’s cross-examination and she was clearly annoyed and became somewhat aggressive when this happened.[17]The Claimant’s evidence was that she was no stranger to sexual harassment having brought a widely publicised claim in Canada after a man she provided care in the community for allegedly touched her inappropriately. It was her evidence, therefore, that she was sexually harassed by an elderly man to whom she gave care in the community in Canada, then again by two men and three women after her return to the UK.[18]We regret that we find the Claimant’s evidence to be unreliable to the extent that we do not accept that any of the incidents of sexual harassment she relies on actually happened. There are many examples arising in this case which point to the Claimant’s evidence being unreliable. It is not possible to relate all of them in this judgment, but we refer below to some of the more obvious examples.[19]The Claimant accuses of Mr Hussain of comments, actions and conduct amounting to serious sexual harassment, which she says started on her first day working at the Unipart warehouse and continued thereafter with him acting on his own or in conjunction with his Canadian friend whose name the Claimant did not know. We accept Mr Hussain’s evidence that his English is poor – this was self-evident from his reliance on a Punjabi interpreter. In her evidence, the Claimant says Mr Hussain speaks fluent Spanish and was her mentor in terms of using the correct Spanish words and pronunciation to supplement the Spanish course that she was taking at the time. There was no timeline given in relation to this assistance but, even if it was true, we cannot accept the help Mr Hussain allegedly gave to the Claimant, happened on her first day at work during which he began harassing her. But the fact that the Claimant used the word “mentor” to describe someone who harassed her is hard to accept. When this was put to her in cross-examination, she became noticeably flustered saying that perhaps “mentor” was the wrong word. She did not explain why someone who allegedly helped her in this way could at the same time be sexually harassing her. We do not accept that someone who is genuinely being sexually harassed will at the same time accept help in this way from her harasser.[20]The Claimant also claimed that Mr Hussain’s Canadian friend joined in with the harassment. We accept Mr Hussain’s evidence that he did not have a Canadian friend. This is supported by inquiries which concluded that there was no Canadian national working at the Unipart warehouse at the time or before the Claimant began working there.[21]When the Claimant transferred to the Pick team, she told Ms Kolmane about the alleged harassment by Mr Hussain and a Canadian man whose name she did not then know. Ms Kolmane offered to walk around the warehouse with the Claimant so she could point these men out and the matter could be investigated by the Respondent. The Claimant refused this offer, a strange response when she had allegedly suffered such serious harassment by these men. The Claimant’s response to there being no Canadian national working in the warehouse was to suggest that the man concerned might have just worked in Canada at some time.[22]The Claimant’s evidence regarding the alleged sexual harassment by Ms Birtles was also unreliable. She shouted at Mr Birtles that she was sick of her sexual harassment and Ms Kolmane asked the Claimant what had happened. She replied that Ms Birtles had been following her around again and when asked by Ms Kolmane when this happened, the Claimant replied, “about ten minutes ago”. Ms Kolmane pointed out that Ms Birtles had been sitting at her desk for some considerable time, much longer than ten minutes ago, and the Claimant then said, “this harassment may have happened earlier”. Ms Kolmane offered to view CCTV footage with the Claimant to confirm what had happened, but the Claimant declined. If she had been so upset by this alleged sexual harassment, we do not consider she would have declined the opportunity to prove her point. Her refusal to view the CCTV footage is more indicative of the fact that the harassment by Ms Birtles did not happen.[23]Prior to Mr Hussain attending the hearing to give evidence, the Claimant said she hoped she had the name of the harasser correctly matched with the man who was to attend the hearing. By way of example, in answering a question put to her by Mr Pettifer about the date of Mr Hussain’s marriage being 2019, the Claimant said he told her he was single at the time, “so I hope I’m not mistaking him for someone else”. She said Mr Hussain’s family were looking for the right woman for him and that he said he had needs “by implication”. In other words, he did not say that, but she interpreted what he said as having that meaning. This falls short of being credible evidence.[24]We note that the Claimant’s evidence was that she began writing her timeline of events the week she left the Respondent’s employment. Despite this, she still added to her narrative in her witness statement and oral evidence. Notwithstanding this, her documentary evidence did not support a number of the allegations she now makes, and these became apparent during her cross-examination by Mr Pettifer.[25]Mr Pettifer drew the Claimant’s attention to paragraph 15 of her witness statement wherein she said Mr Hussain told her that, “as long as he was discreet, there was nothing wrong with fucking white girls as in his opinion they were of easy virtue (used to fuck and chuck)”. Mr Pettifer pointed out that despite the initial orders of Employment Judge Welch to give details of all such allegations, she had not mentioned this allegation in her claim form, in any of the preliminary hearings or the list of issues. Employment Judge Welch had been clear that such matters should be detailed as set out in her Order at page 29. The Claimant’s response was to say she had dealt with a lot of issues and if she had included all of them at the preliminary hearings, the hearings would have lasted days. Further, she said, “I knew I would have an opportunity to put them down later”.[26]Mr Pettifer also pointed out the inconsistency in the Claimant’s witness statement, again in paragraph 15, where she initially says Mr Hussain made comments about white girls being of easy virtue and then says both Mr Hussain and his Canadian friend said this. The Claimant’s response was that this was not just a one-off, it happened frequently. Of the two men she said, “they were oversexed predatory Asians both showing interest in me. They were in competition with each other”.[27]There were some matters referred to and recorded in the issues identified by Employment Judge Welch (page 88) that were not mentioned in the Claimant’s witness statement. One such matter is at (i) (page 88) which is the allegation that she overheard Mr Hussain and some of his colleagues rating various female colleagues on a scale from one to ten and discussing which nationalities were best in bed. When Mr Pettiefer raised this inconsistency with the Claimant she replied, “maybe I didn’t realise it needed to be in the bundle and the witness statement. There’s enough in the witness statement to show how I was treated. Plenty of others are referred to there”.[28]As already noted, the Tribunal did make allowances for the Claimant’s lack of knowledge of the law and procedure. However, there were inconsistencies in her evidence and new matters not previously identified were raised. It was also notable that the Claimant challenged almost none of the evidence given by the Respondent’s witnesses and her challenges when made took the form of merely giving further evidence rather than pressing the witness on the accuracy of their evidence.[29]The Tribunal’s overwhelming opinion of the Claimant’s evidence was that it comprised mainly of a somewhat fluid and unreliable narrative designed to bolster her claim. Much of her witness statement was taken up with extracts from the Respondent’s policies on diversity, bullying and harassment etc. with little regard for the fact that her allegations must show the incidents of harassment occurred before the policies can be used to support the claims.[30]Taking into account all of the above reference matters, our overwhelming and unanimous conclusion is that the Claimant’s evidence is unreliable.[31]We must consider the burden of proof in discrimination cases. Section 136(2) EQA deals with the burden on the Claimant to establish facts from which discrimination could be found to have occurred whereupon the burden shifts to the Respondent to prove that there was no discrimination. In his written submission, Mr Pettifer makes reference to decisions in Royal Mail Group Ltd v Efobi [2021] UKSC33, Khan and another v The Home Office [2008] EWCA civ. 578 and Field v Steve Pye and Co (KL) Ltd and Others [2022] EAT 68. Efobi confirmed that the two stage approach under section 136 EQA should continue and Khan suggests that the burden of proof provisions, “need not be applied in an overly mechanistic or schematic way”. In Field, HHJ Tayler talked about the application of the two stage process. He said, “if at the end of the hearing, having considered all of the evidence, the Tribunal concludes that there is nothing that could suggest that discrimination has occurred and the employer has established a non-discriminatory reason for the impugned treatment, there would be no error of law in just answering the, “reason why” question, but it is hard to see what would be gained by doing so, when the Tribunal has already concluded that there is no evidence that could establish discrimination, which would result in the claim failing at the first stage”. In this case, we cannot consider the Respondent’s non-discriminatory reason for the Claimant’s treatment because we have found that the treatment alleged by the Claimant did not, on the balance of probabilities, occur at all.[32]Accordingly, taking all of these matters into account, the claims must fail. Approved by: