Ms S St Jean v Harris Commercial (Lea Valley) Ltd — 2022

Ms S St Jean was employed as a Service Administrator from 12 August 2019, and the case concerned events between about 18 March and 12 April 2020, with the grievance issues running from 22 April to 12 May 2020. The tribunal accepted that the respondent was operating in an unprecedented and changing situation during the national lockdown, with uncertainty over work levels, the operation of the furlough scheme, and what employees were needed to do. It also accepted that the claimant was genuinely anxious and that she had health conditions which affected how she experienced events.

On the direct discrimination claim, the tribunal rejected the claimant's proposed comparators. It found that Martyn Westerman, Taylor Whitbread and the other individuals identified did not have materially similar circumstances, including because of different roles, managers, working arrangements, or because they were not seeking to return to work at the same time. The tribunal accepted that not furloughing the claimant on 1 April 2020 was a detriment in the sense that furlough would have paid more than SSP, but it found that the decision was driven by business need, the existence of the claimant's work, and the respondent's understanding of the CJRS, not by sex or race.

The tribunal also took into account the later offer made on 24 April 2020 to furlough the claimant from 1 April 2020, which she declined, and the similar treatment of James Bland, as background material inconsistent with discrimination. It accepted that some comments described by Jahvell Vassell may have been made by colleagues, but found there was no direct or inferential link between those comments and the furlough decision. Even if the claimant had made out a prima facie case, the tribunal said the respondent had provided an explanation that was in no sense whatsoever connected with sex or race.

The indirect discrimination claim failed because the tribunal did not find that the alleged PCP existed: it did not accept that employees returning from sick leave were required to stay at work and could not be furloughed. Alternatively, if such a requirement had existed, the tribunal held that it would have been justified by the legitimate aim of following the CJRS and would have been a proportionate means of achieving that aim. The harassment claim failed because the 1 April 2020 comments were found to be unwanted but not related to sex or race and not serious enough to violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. The victimisation claim failed because there was no material delay in the grievance response, no proof that Mr Pacey lied about posting it, and no detriment or causal link to the protected act. All claims were dismissed and no award was made.