Ms F Stehrenberger, counsel For the v Respondent — 2023

Ms Kaur was employed by Welcome Break Holdings Ltd from 11 September 2019 and worked nights at the WH Smith store at South Mimms. After a September 2020 incident involving another employee, that employee was summarily dismissed on 21 September 2020. Ms Kaur then remained off work with anxiety, and the respondent received fit notes through late 2020 and into mid-2021. She issued proceedings in April 2021. At a preliminary hearing on 6 July 2022 the case was clarified as one of direct sex discrimination and/or harassment related to sex, based on six matters concerning return to work arrangements, meetings while off sick, flexible working, and how her grievance and Occupational Health recommendations were handled.

Employment Judge Andrew Clarke KC applied the strike-out principles under Rule 37, noting the high threshold but also that the tribunal could assess the pleaded case against contemporaneous documents and common sense. He also referred to the Equality Act provisions on direct discrimination and harassment, including the need for facts from which discrimination could be inferred under s.136. The tribunal considered each allegation in turn and found no reasonable prospect of proving the factual case in relation to the alleged pressure to return to work, attendance at meetings, refusal of flexible working, or failure to act on Occupational Health advice. The documents showed the respondent discussing a phased return, asking what could make her return comfortable, and respecting her statement that she was not yet ready to come back.

On the grievance allegation, the tribunal accepted there was a possible short delay in dealing with an informal complaint, but held that there was no reasonable prospect of showing that any such delay amounted to sex discrimination or harassment. The tribunal found no material from which it could conclude that the respondent acted because of Ms Kaur's sex, and said that the mere fact that she was female was not enough. All claims were therefore struck out, and no remedy was awarded.