Sue Sleeman, Counsel First v Victoria and Albert Museum and Mr G Ahearn — 2020

At an open preliminary hearing on 5 October 2020, Employment Judge Russell sitting alone considered the respondents' applications to strike out the claimant's claims or, alternatively, to order a deposit. The claims pleaded were direct sex discrimination under s.13 Equality Act 2010 and harassment related to sex or sexual harassment under s.26, arising from conduct said to have occurred between April and August 2019 and from the first respondent's handling of the grievance and the second respondent's possible return to work.

The judge recorded that some of the more serious alleged conduct by the second respondent took place outside office hours, but also noted that some texts and comments occurred during working hours. The judgment accepted that the claimant had made clear some conduct was unwelcome, that delay in dealing with her grievance worsened her distress, and that she was given the impression on 28 August 2019 that the second respondent would return to work in the same building as her. The judge also noted that by 19 November 2019 no final decision had been reached, which continued to cause distress.

Applying the authorities on strike out and deposit orders, including Hemdan v Ishmail, Van Rensburg, Javed, Tayside Public Transport and Ezsias, the judge held that this was not a case where it could be said that the claims had no reasonable prospect of success or little prospect of success. The key matters were fact-sensitive and required a full evidential hearing, including what was said on 28 August and 19 November, whether the first respondent would have acted differently if the claimant had been a man, and whether the response to her grievance could amount to discriminatory treatment or harassment.

On vicarious liability, the judge said that section 109 EqA 2010 and the broad "in the course of employment" approach, including the close connection analysis and the authorities referred to in the judgment, meant it could not be decided at the preliminary stage that the second respondent's conduct was merely a private dispute outside employment. The judge therefore refused both respondents' applications. Limitation issues were left to the full hearing, and the judgment made no finding on the merits of the discrimination or harassment claims.