Miss. K Green v Nuffield Health — 2021

The tribunal dismissed the claim in its entirety. It found that the claimant had withdrawn one indirect discrimination allegation and some harassment and victimisation allegations, and that the remaining sex discrimination, harassment, victimisation and constructive dismissal claims were not well founded. The tribunal preferred the evidence of the respondent's witnesses to that of the claimant where their accounts differed, and found that the claimant had exaggerated aspects of the 4 June 2018 meeting.

On the discrimination claims, the tribunal found that the requirement to work full time did not place the claimant at the relevant disadvantage for the reasons alleged, and in any event the respondent had accommodated childcare-related shift issues during the temporary period relied on. The equal pay-related complaint failed because the male duty managers were not proper comparators under the pay review rules and the claimant's ineligibility for the April 2018 review, not her sex, explained the different treatment. Other complaints about the occupational health report, the return to work meeting, an alleged investigation and a conversation with the claimant's partner were found either not to have occurred as alleged or to have no sufficient link to sex.

On harassment and victimisation, the tribunal accepted that sharing the occupational health report with Mr McGuinness without first seeking the claimant's consent was inappropriate and caused embarrassment or distress, but found that it was done to seek managerial guidance and was not related to sex or materially influenced by the protected act. The tribunal also found that the flexible working meeting letter, the return to work meeting, the alleged investigation and the discussion with the claimant's partner did not amount to the pleaded unlawful acts.

On constructive dismissal, the tribunal held that the matters relied on, taken singly or cumulatively, did not amount to a repudiatory breach of the implied term of mutual trust and confidence. It found that the appeal outcome proposing mediation was a reasonable attempt to facilitate a return to work, not a last straw justifying resignation. The tribunal also found that the claimant had already decided in June 2018 not to return to work, continued in employment and accepted sick pay, and resigned when her fit note expired rather than in response to any repudiatory breach.