Miss K Kirkham v Quality Save — 2021

Miss K Kirkham alleged that she had been constructively dismissed after repeated sexual comments by Simon Bream and after the handling of her complaints by Alex Kelly and John Coffey. The tribunal found that her employment as an employee began on 14 October 2016, not 1 September 2016, and that Mr Bream began at the Prestwich store on 1 February 2019. It treated the case as one turning largely on disputed facts and credibility, including the significance of Facebook exchanges between the claimant and Mr Bream.

The tribunal rejected the allegations that Mr Bream told the claimant that he loved her, that she looked beautiful, that her eyes were beautiful, and the more explicit comments said to have been made between May and August 2019. It found those allegations did not happen. It also found that the claimant was not upset by the September 2019 Oral B comment, but laughed at it, and that Alex Kelly promptly reprimanded Mr Bream after hearing about it. The tribunal concluded that the later allegation that Ms Kelly ignored repeated complaints was not proved.

As to John Coffey, the tribunal found that he did not refuse to discuss the matter or tell the claimant to speak to her manager. It found that he reacted immediately to the call he received, went to the Prestwich store, and interviewed Mr Bream. The tribunal also found that the alleged inaction of Mr Coffey could not have been the last straw because the claimant resigned on 19 September 2019 and the call was on 25 or 26 September 2019; instead, it considered that the resignation was prompted by a dispute on 18 September about a tannoy announcement and by the claimant’s own Facebook posts on 20 September referring to being treated like a child or “back at school”.

The tribunal dismissed the unfair dismissal, wrongful dismissal, harassment related to sex, and direct sex discrimination claims. It held that the facts found did not amount to unwanted conduct with the purpose or effect required by section 26 Equality Act 2010, did not establish less favourable treatment because of sex under section 13, and did not amount to a repudiatory breach of contract or constructive dismissal under section 95(1)(c) ERA 1996. It further held that, in any event, the claimant had been paid one week’s notice pay and the wrongful dismissal/notice pay claim therefore failed.