Claimant v Choice Support — 2021

The tribunal found that the claimant and Employee A were in a relationship from around Christmas 2017 and had consensual sexual activity shortly before 19 March 2018. It found that a sexual act took place in the office at South Canterbury Road on 19 March 2018, but on the evidence the claimant did not consent and left immediately for hospital, with police involvement following.

The tribunal held that the claimant's 20 March 2018 email was a protected disclosure under s.43B ERA because she reasonably believed it disclosed a criminal offence and that the disclosure was in the public interest. It also held that her 24 April 2018 email was a protected act. The tribunal accepted that some parts of the respondent's handling of the investigation were insensitive, but it found the respondent was trying to investigate the allegation and deal with safeguarding issues, not acting because of the protected disclosure or protected acts, so the whistleblowing detriment and victimisation claims failed.

The automatic unfair constructive dismissal claim also failed because the tribunal did not find that the conduct relied on was because of a protected disclosure. The tribunal found the sexual act amounted to harassment under s.26 EqA and rejected the respondent's s.109(4) defence on the merits, but the harassment claim was still dismissed because it was out of time. In refusing to extend time, the tribunal noted that the claimant should have contacted ACAS by 18 June 2018 but did not do so until 21 August 2018, and it took account of the absence of Employee A as a witness and the respondent's lack of prior knowledge of the relationship. No remedy was awarded.