J Hendry Members: Mr. A W Bruce Mr. A N Atkinson MS D Fitzpatrick v Represented by:15 Mr. M Briggs Solicitor The Scottish Ministers — 2018

The claimant, a fisheries officer with Marine Scotland in Scrabster, brought a harassment complaint about anonymous greeting cards received in February 2015, February 2016 and February 2017. She said the cards were sent by colleagues or former colleagues and pleaded harassment linked to age, sex and race; the written reasons concentrated on age and sex, while race was pleaded but not separately analysed in detail. The police investigated after the 2017 cards but could not identify the author or authors.

The majority accepted the cards were unwanted and unsettling and considered several of them to carry age- and sex-related references, including Canadian Jock, old troll, sexy mama, and comments about being grumpy or having been promoted. The case turned on attribution: the tribunal was not satisfied on the balance of probabilities that the cards had been sent by current employees of the respondents at the relevant times, and it could not say that one alternative explanation was more probable than another. Mr. Atkinson dissented and would have found enough to conclude that current employees were responsible.

The tribunal also considered the section 109 Equality Act defence and was not convinced the respondents had shown all reasonable steps, criticising the limited HR response, but that did not affect the result because liability was not established. It did not accept the claimant's evidence about the full extent of distress, and said that if liability had been proved it would have awarded £2,000 for injury to feelings rather than the £30,000 sought. The claim was dismissed.