Mrs P Rose v Costco Wholesale (UK) Limited and 1 other — 2021

The tribunal considered six alleged acts between August and November 2019 said to amount to direct sex discrimination and harassment. It found that the shoulder-touching incident in August 2019 occurred, but not in the more forceful way alleged, and was not related to the claimant’s sex. It did not find the alleged mocking comments proved. It found the October 2019 “shush” incident occurred and was inappropriate, but treated it as poor management arising from frustration rather than conduct related to sex.

The tribunal found that on 9 October 2019 Mr Keiley briefly put his hands on the claimant’s cheeks when she became upset. It held this was ill judged and paternalistic, and that he would not have treated a male employee the same way in comparable circumstances. On that basis, the tribunal found this incident amounted to less favourable treatment because of sex and would have been direct discrimination contrary to section 13 Equality Act 2010. However, it did not find the incident amounted to harassment. The tribunal did not accept that Mr Rafferty made the alleged comment about women being at home in the kitchen, and it did not accept that Mr Keiley touched the claimant’s arm on 30 November 2019 as alleged.

On time limits, the tribunal held that any discriminatory act before 5 November 2019 was out of time unless it formed part of conduct extending over a period or time was extended on just and equitable grounds. It found the pleaded acts did not amount to a continuing act extending to the November 2019 allegation, and the grievance process ending on 6 December 2019 still left time to notify ACAS in early January 2020. As the claim was presented only after ACAS notification on 4 February 2020 and the tribunal was not persuaded to extend time, both the direct discrimination and harassment claims were dismissed for want of jurisdiction.