Member S Singh Tribunal Member J McElwee Ms K Bone v Duncreggan Enterprises Ltd — 2023

Ms Bone worked as a personal carer for Mrs Rice from 3 January 2022 until she resigned on 20 May 2022. She had initially brought claims including disability discrimination and public interest disclosure detriment, but those were withdrawn before the hearing. The remaining issues were direct sex discrimination, sexual harassment, and unpaid holiday pay. The tribunal heard evidence from Ms Bone, Mr Rice, Mrs Markey, Ms Grout and Ms McKenna, and relied heavily on the text and email exchanges between the parties.

The tribunal unanimously rejected any claim based on earlier conduct before 13 May 2022, finding that the references to Ms Bone's cat, her car, and other interactions were not proved to be less favourable treatment because of sex or harassment related to sex. The majority then found that the late-night text exchange on 13 May 2022, read in context, was a proposition to take the relationship beyond friendship and could not be treated as an innocent request to chat. On that basis the majority held that Mr Rice treated Ms Bone less favourably because she was a woman, and that the same conduct was unwanted conduct related to sex and conduct of a sexual nature. The minority would have interpreted the exchange differently and dismissed the sex discrimination and harassment claims.

On remedy, the tribunal accepted that Ms Bone resigned because of the incident and that her wage loss was limited to the four months from June to September 2022 at £320 per month, producing £1,280 plus interest of £59.64. It assessed injury to feelings at the midpoint of the lower Vento band, awarding £5,000 plus interest of £468.60. The tribunal did not accept that Ms Bone's complex PTSD caused her reaction, although it accepted that the impact may have been exacerbated by her condition.

The tribunal also upheld the holiday pay claim. It found that Ms Bone had taken no holiday and received no holiday pay during her employment, and it calculated the entitlement by reference to average weekly pay and the 5.6 weeks' statutory leave entitlement. The tribunal rejected Mr Rice's 12% calculation method and any offset, relying on regulation 14 of the Working Time Regulations 1998 and Harpur Trust v Brazel. The total award was £6,953.75, comprising loss of earnings, injury to feelings, interest, and holiday pay.