Mr T Falcao, solicitor For the v Respondent — 2021

Ms P Kimberley had previously worked for the respondent as an agency Implementation Manager from April 2018 to February 2019 at £350 per day. In October 2019 Ms Tatiana Southon contacted her about returning on a Microsoft Teams roll-out. The tribunal found that the proposed role was budgeted at £400 per day, with KB on £400 and DB on £350, while ML was on £500 because he had additional project responsibilities and more recent relevant experience.

The tribunal rejected the claimant's case that she and Ms Southon had agreed on 10 October 2019 that she would return at £400 per day. It found that no agreement had been reached, and that the £400 figure was the budgeted rate for the job. It also found that ML was not in the same or similar circumstances as the claimant for the purposes of the pay comparison.

The direct sex discrimination claim failed on the merits because the claimant was offered the budgeted rate and a hypothetical man in her position would have been offered the same rate. The tribunal also held that it had no jurisdiction under section 41 Equality Act 2010 because the claimant was not yet a contract worker, and that section 108 did not assist because the pay issue arose from a prospective new relationship rather than the earlier agency engagement.

On 10 October 2019 the claimant told Ms Southon that sexually explicit messages in the WhatsApp group were derogatory towards women and very offensive. The tribunal found that this was an allegation that the respondent had contravened the Equality Act 2010, so it was a protected act for section 27 purposes. It also found that the withdrawal of the role on 11 October 2019 was sent because of that protected act.

The tribunal rejected Ms Southon's explanation that the role was withdrawn because the claimant would not accept less than £450 per day. It relied on the brevity of the withdrawal message, the absence of any explanation, and the respondent's need to fill the role. It further held that the victimisation arose out of and was closely connected to the previous working relationship, because the claimant only knew of the WhatsApp group through that earlier role and one participant, KB, was part of both teams. The victimisation claim therefore succeeded and was listed for a remedy hearing, with no remedy quantified in this judgment.

The sexual harassment claim had been withdrawn and dismissed upon withdrawal on 11 May 2020, and the whistleblowing detriment claim was withdrawn during the hearing after the claimant accepted there was no jurisdiction in her circumstances.