ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4104454/2018 Hearing at Edinburgh on 26, 27, 28, and November, and 3, and December 2018, and and February 2019; and Members’ Meeting on April 2019 Employment Judge: M A Macleod Mr J Terry Ms E McArthur Lisa Aird v Represented by Ms S Shiels Solicitor Scottish Water — 2019

Lisa Aird worked for Scottish Water from 2011 and later moved into the Wholesale Service Desk. In March 2016 she raised a Dignity at Work grievance alleging sexual harassment and inappropriate conduct by Kenny Laing. Ian Burnett investigated, interviewed the witnesses identified by the claimant, and concluded that her distress was genuine even though he could not substantiate sexual harassment or inappropriate conduct. He recommended a formal outcome meeting with Mr Laing, Dignity at Work training, protocols for assisting Mr Laing with tasks, a desk move for the claimant if she wanted one, and a review of her line management.

On the constructive dismissal claim, the tribunal applied s.95 ERA 1996 and the Western Excavating line of authority. It held that the grievance process and the follow-up arrangements were handled in a reasonably fair and balanced manner, that the Burnett recommendations were implemented, and that the claimant later became more settled under Ms Porteous's management. The tribunal found that the claimant did not resign in response to a repudiatory breach; she resigned on 12 December 2017 after securing a Clerical Assistant post at Liberton High School, and her departure was to take up that alternative job rather than to reject the respondent's conduct.

On the sex claims, the tribunal did not accept the factual basis for the central allegation that Mr Laing had called the claimant 'sexy bum' on 3 February 2016, and it held that the allegation was in any event out of time and not just and equitable to extend. It found that some personal comments and office banter had taken place, but not a proven course of conduct amounting to harassment on the grounds of sex, and it did not uphold the sex discrimination or victimisation claims. The tribunal also found no detriment after the grievance: the complaint was investigated, the outcome was communicated, and the claimant later reported that she was happier at work.

On the disability claims, the claimant said that being asked to help Mr Laing with opening doors and other personal tasks was less favourable treatment and harassment because of his disability. The tribunal rejected that analysis. It found that the requests were minor, that other staff, including male staff, were also asked to help at times, and that no failure to make reasonable adjustments for Mr Laing was proved on the evidence. All claims were dismissed and no award was made.