In Person For the v Respondent — 2023

Mrs M Anea worked as a cleaner, transferring from Mitie to Atalian Servest under TUPE on 25 October 2021. She alleged that the second respondent’s supervision after January 2021 amounted to race discrimination and racial harassment, that the third respondent sexually harassed her on 17 September 2021, and that she resigned on 25 October 2021 in response to those matters and the handling of her grievance. The tribunal preferred the evidence of the second and third respondents, finding the claimant’s evidence less reliable and accepting their account where there was a factual conflict.

On the discrimination and harassment claims, the tribunal found the incidents on 31 August 2021 and 7 October 2021 were routine workplace disputes. It held there was no evidence from which it could properly conclude that the second respondent’s conduct was because of the claimant’s Romanian nationality, so the burden of proof did not shift under section 136 EqA 2010 and the direct race discrimination claim failed. For the same reason, the racial harassment claim was also dismissed. The tribunal also rejected the sexual harassment claim, finding it was not satisfied that the alleged comment and gesture on 17 September 2021 occurred as described, and noting that the claimant made no contemporaneous complaint and did not include the incident in her grievance.

The constructive dismissal claim also failed. The tribunal held that the respondent’s conduct did not amount to a repudiatory breach of the implied term of mutual trust and confidence. It found that the grievance process had been started, that the cancellation of the 12 October 2021 meeting happened because of HR advice, and that the claimant resigned before the respondent had a proper opportunity to complete the process. The tribunal found the principal reason for resignation was the failure to secure the shift pattern she wanted, and also held that she was not dismissed by the respondent.

The unpaid holiday pay claim was dismissed because the tribunal accepted the respondent’s evidence that the claimant had accrued 20 days of leave in the relevant leave year and had actually taken 22. It found there was no holiday pay outstanding and that, technically, the claimant had been overpaid by two days. No monetary award was made.