Mr J Wynne, counsel For the v Respondent — 2019

This remedy judgment followed the earlier liability decision. The tribunal noted that the claimant had already succeeded in constructive unfair dismissal and in harassment related to sex, and had failed on the trade-union-activity claim. The live issues in this hearing were the remitted question of whether Unite was liable for sex discrimination or harassment by paid officers, and the period over which any financial loss should run.

Applying the section 136 Equality Act 2010 burden of proof and the approach in Nagarajan to subconscious motivation, the tribunal held that Unite was liable for harassment related to sex by Mr Hughes and Mr Murray, but not by Mr Kavanagh. It found that the handling of the claimant's complaints about gender-specific language, and the failure to deal properly with the recommendations arising from the internal investigation, were facts from which sex-related harassment could be inferred.

The tribunal rejected the claim against Mr Kavanagh. Although he knew of the underlying complaints and had been supportive in other respects, it found that his decision to transfer the claimant from Heathrow was driven primarily by the threatened DVD release and concern for her health, and did not amount to unwanted conduct related to sex or less favourable treatment because of sex.

On remedy causation, the tribunal considered three matters that it found could amount to misconduct if known at the time: the covert recording of the 25 September 2013 meeting with Mr Beckett, the discriminatory language used in the recorded call to Mr King, and the forwarding of around 460 work emails to the claimant's personal account. It assessed a 30% overall chance of lawful dismissal if those matters had been known, with indicative chances of 20% for the recorded remarks and 5% each for the other two matters.

The tribunal found that the claimant would probably have remained employed until January 2017 and that the Network Rail role she started on 4 January 2017 broke the chain of causation for loss after that date. It recorded that the basic award and loss of statutory rights had been agreed, but this judgment did not finally quantify compensation; the remaining remedy issues were listed for the December 2019 hearing.