Miss F Harris v Rotherham VE Ltd t/a Vision Express — 2022

At the attended preliminary hearing on 16 February 2022, Employment Judge R Broughton sitting alone considered the respondent's strike-out and deposit-order applications and the claimant's amendment application. The tribunal allowed the amendment, which simply clarified the dates of the alleged acts of direct discrimination and harassment, applying Selkent Bus Co Ltd v Moore. The respondent then withdrew its strike-out application under Rule 37(1)(a).

The claimant alleged direct sex discrimination and harassment by her line manager, Mr Wing, over alleged conduct in 2019 and on 19 and 20 August 2020. The dispute centred on a temporary uniform top required during the Covid period. The respondent said the requirement was a health and safety measure and that the claimant had no viable sex discrimination case; it also challenged the harassment allegation and comparator evidence.

On the material before it, and taking the claimant's case at its highest, the tribunal was not persuaded that the allegations relating to 19 and 20 August 2020 had little reasonable prospect of success. It considered there appeared to be a difference in treatment between the claimant and a male comparator in relation to the uniform requirement, and that the comparator was not materially different on the pleaded case. The tribunal also considered that the harassment allegation could arguably satisfy section 26 Equality Act 2010, including the questions of unwanted conduct related to sex and possible effect on dignity or environment, so the deposit-order application was refused.

The tribunal reserved to the final hearing the issues of time limits for the allegations predating 19 and 20 August 2020, including whether they formed conduct extending over a period and, if so, the relevant period. No final merits determination or remedy was made at this stage.