ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4113101/2018 Hearing at Edinburgh on 6, 7, 8, 9, and August 2019, and Members’ Meeting on October 2019 Employment Judge: M A Macleod Tribunal Member: M McAllister Tribunal Member: J Chalmers A v Represented by Mr R Clarke Solicitor B — 2020

The claimant started work for the respondent’s Livingston branch in September 2017. The tribunal heard evidence about a series of events culminating in the incident of 14 February 2018, when the claimant reported to management that a colleague, Michael Zurinskas, had been showing colleagues Facebook photographs of her in a state of undress and had made sexual comments to her. The tribunal preferred the claimant’s evidence, supported by Mark McHugh, on the central events, and found several of the respondent’s witnesses less reliable, particularly on the handling of the incident and the later investigation.

On the whistleblowing claim, the tribunal accepted that the claimant had disclosed information to management on 14 February 2018, but held that she did not have a reasonable belief that the disclosure was made in the public interest. It concluded that the complaint was primarily about protecting her own interests in a distressing situation, so it was not a qualifying protected disclosure under ERA 1996. The automatic unfair dismissal claim under s.103A therefore failed. However, the tribunal separately found that the claimant was constructively dismissed: the respondent’s response to the 14 February incident, including the letter of 15 February 2018 saying the matter had been dealt with, amounted to a repudiatory breach of trust and confidence, and the claimant resigned on 8 March 2018 in response.

The direct sex discrimination claim succeeded. The tribunal found that Mr Zurinskas shared non-consensual explicit photographs of the claimant with colleagues, asked her whether her breasts were real and how much for a night with her, and laughed at her. It also held that the respondent treated the claimant less favourably than a hypothetical male comparator, particularly in the way it handled the complaint about Mr Zurinskas compared with the rapid disciplinary action taken against the claimant over till and mobile phone matters. The tribunal held that Mr Zurinskas, Ms Walczyk, Ms Palmer and Ms McVey were acting in the course of employment for the purposes of s.109 EqA, and that the respondent had not shown that it had taken all reasonable steps to prevent the treatment.

The harassment claim also succeeded in part. The tribunal held that the sharing of the photographs, the sexual comments, and the laughter amounted to unwanted conduct related to sex that had the effect of violating the claimant’s dignity and creating a humiliating or offensive environment. It did not find that Ms Walczyk herself laughed at the claimant, and it did not uphold the section 26(3) allegation based on rejection of conduct. The tribunal treated the harassment claim as out of time on its face, but allowed it to proceed on a just and equitable basis because it arose from the same 14 February facts as the timely direct discrimination claim and the respondent was not prejudiced.