Miss S Marwick v J D McDougall Ltd — 2018

Miss S Marwick worked for J D McDougall Ltd from 2005, first as a cutter and later also in the office, doing AutoCAD and health and safety work. The tribunal accepted that Mr McDougall could be impatient and sometimes shout or bang a workbench when frustrated about errors or deadlines, but it found that the claimant was also confident and willing to challenge him.

On timeliness, allegations 1 to 11 were held out of time and it was not just and equitable to extend time. The tribunal then considered allegations 12 to 32 and rejected the direct sex discrimination and sex-related harassment case, finding that the complaints about comments, physical contact, bonus and pay decisions, criticism of work, health and safety duties, and the later suspension process were driven by performance, conduct, or the claimant's stated wish to leave, not by sex.

The tribunal also rejected the sexual conduct harassment complaints based on alleged conduct in 2005 and 2006. It found those allegations were out of time and, in any event, were not proved on the evidence heard.

The victimisation claim failed because the tribunal found that the claimant did not make a protected act in early 2015. It did not accept that she told Mr McDougall she was being singled out or discriminated against because she was female, and it treated her later handwritten notes as post-event reflections rather than contemporaneous records.

The wage, contract and holiday pay claims also failed. The tribunal found there was no contractual entitlement to the claimed bonus or pay rise, the overtime claim from 6 August 2011 was brought too late, and the claimant did not prove any outstanding holiday pay; the respondent said there had been an overpayment of £79.02, but there was no counterclaim.

For unfair dismissal, the tribunal found that the reason for dismissal was gross misconduct arising from the 17 and 18 November 2016 incidents with Argyro Koutsompina. It accepted the independent investigation by Simon Robinson, the disciplinary hearing before Kim Sands, and the appeal before E Melville were fair, and upheld summary dismissal on 4 January 2017. No monetary award was made.