NP v Qrs — 2020

The tribunal found that the claimant had admitted making comments of a sexual nature to female colleagues at the respondent’s Christmas party on 14 December 2017, including comments about comparator’s breasts and a comment to employee A about her chest size. An anonymous complaint led to an investigation, a disciplinary hearing and an appeal, after which the claimant was found guilty of gross misconduct for sexual harassment and given a final written warning and demotion, although the demotion was later reversed and it was common ground that he suffered no financial loss from the administrative error about the sanction.

On the sex discrimination claim, the tribunal held that the claimant’s chosen comparator was not apt for section 13 Equality Act purposes. Comparator was an entry-level, recently trained employee on a private night out nine months later, whereas the claimant was a senior officer with 31 years’ service, was disciplined for conduct at an employer-organised Christmas party, and faced an anonymous complaint supported by comparator’s own statement. The tribunal found these were material differences under section 23 and applied Shamoon, concluding that the claimant had not shown less favourable treatment because of sex in either the disciplinary decision or the appeal outcome.

On the age discrimination claim, the tribunal said the claimant had not properly constructed a hypothetical comparator and had produced little or no evidence that a person under 50 would have been treated differently. It accepted the respondent’s evidence that the decision-makers were responding to the conduct, the claimant’s seniority and the workplace context, not to age, and found no evidence that anyone within the organisation had decided to make an example of an older employee. Applying section 136 and Madarassy, the tribunal held that the claimant had shown no facts from which age discrimination could be inferred and dismissed both claims.