Member Anderson Tribunal Member Burnett Miss N Reilly v Ms DM Gray - Professional Representative Pets at Home Limited — 2024

The tribunal found that the claimant and TW had a close and informal working relationship before 26 October 2022, involving WhatsApp messages, video calls, lifts home and sexual banter. It accepted that the claimant discussed her sexuality and sex life with TW, that she trusted him and regarded him as a friend, and that she had shown him explicit material on her phone. After she became concerned about rumours of a sexual relationship, she raised a grievance on 13 December 2022 and later appealed.

The harassment claim under s.26 EqA failed. The tribunal rejected or did not accept the factual basis of the alleged pressure for photos, the alleged penis image, the alleged sexual comments on 9 and 17 October 2022, the alleged deliberate call on 26 October, and the alleged failure to act on rumours. Where conduct was proved, the tribunal found it was mutual, not unwanted at the time, or not conduct of a sexual nature or not shown to have the proscribed effect. The direct sexual orientation discrimination claim under s.13 EqA also failed: the alleged confidentiality breaches were not proved, the remark about wishing he had known her before past relationships was not less favourable treatment because of sexual orientation, and the alleged penis-photo incident was not established.

On victimisation, the tribunal accepted that the grievance and appeal were protected acts and rejected the respondent's case that they were made in bad faith, but found no causal link between those protected acts and the grievance or appeal outcomes. It held that CS and BP reached their conclusions because of the evidence before them, not because the claimant had complained under the Equality Act, so the s.27 EqA claim was dismissed.

The constructive unfair dismissal claim under s.95 ERA 1996 also failed. Applying the Western Excavating, Malik, Omilaju and Kaur approach, the tribunal held that the grievance delay, the suggestion that the claimant move stores, the suggestion of mediation, and the grievance and appeal outcomes were supported by reasonable and proper cause and did not amount individually or cumulatively to a repudiatory breach or last straw. The claimant resigned on 3 March 2023 with effect from 10 March 2023, but was not found to have been constructively dismissed. No monetary award was made.