A v B and C: 1600810/2019
| Judgment Date | 19 January 2021 |
| Citation | 1600810/2019 |
| Published date | 28 January 2021 |
| Court | Employment Tribunal |
| Subject Matter | Sex Discrimination |
Case Number: 1600810/2019 V
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EMPLOYMENT TRIBUNALS
Claimant:
A
First
Respondent:
B
Second
Respondent:
C
Heard at:
Cardiff via CVP
On: 14 – 18 December 2020
Before:
Employment Judge R Havard
Members: Ms M Humphries
Ms B Currie
Representation:
Claimant:
Mr S Hirst, Counsel
First
Respondent:
Ms R Tuck QC, Counsel
Second
Respondent:
Mr L Bronze, Counsel
RESERVED JUDGMENT
1. The unanimous judgment of the Tribunal is that the Claimant's claim of sexual
harassment is not well-founded and is dismissed;
2. The unanimous judgment of the Tribunal is that the Claimant's claim of sex
discrimination is not well-founded and is dismissed.
REASONS
Introduction
1. By a claim form dated 12 June 2019, the Claimant indicated that she wished to
pursue a claim that she had been subjected to sexual harassment and that she
had been discriminated against on the grounds of sex.
Case Number: 1600810/2019 V
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2. The claim for sexual harassment is made against both the First and Second
Respondents. The claim for sex discrimination is made against the First
Respondent alone.
3. Both the First and Second Respondents lodged responses in which they
disputed the claims being pursued by the Claimant.
4. At a preliminary hearing conducted by telephone on 28 August 2020 before
Employment Judge Brace, it was agreed by all parties that it was appropriate and
proportionate for the final hearing to take place remotely via CVP.
5. At the same hearing, and on the application of the Second Respondent which
was not opposed, Employment Judge Brace made a restricted reporting order
pursuant to section 11 of the Employment Tribunals Act 1996 and Rules 50(1)
and (3)(d) of the Employment Tribunals Rules of Procedure 2013. The order
prohibited the publication in Great Britain, in respect of the proceedings, of
identifying matter in a written publication available to the public or its inclusion in
a relevant programme for reception in Great Britain. It was ordered that the
parties may not be so identified and it was stipulated that the order would remain
in force until both liability and remedy had been determined in the proceedings
unless revoked earlier.
6. On the same day, Employment Judge Brace made an Anonymisation Order in
respect of the names of the parties to these proceedings. This granted the
Claimant and Second Respondent lifetime anonymity. Employment Judge Brace
considered that, if the First Respondent was not anonymised, this could lead to
the identification of the Claimant and Second Respondent.
Issues
7. At a preliminary hearing conducted by telephone on 29 August 2019, the issues
between the parties to be determined by the Tribunal had been discussed and
formulated. At the beginning of this hearing, it was confirmed by the
representatives of the parties that there was no requirement for those issues to
be amended in any way.
8. Those issues are:
1. EqA, section 13: direct discrimination because of sex
a. Has the First Respondent treated the Claimant as follows:
i. Carried out a "woefully inadequate" investigation into the
Claimant's complaint of harassment against the Second
Respondent? In particular the Claimant alleges that the
investigation was inadequate because:
Case Number: 1600810/2019 V
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(a) The written report of the investigation was only 4 pages
long and did not contain any detailed narrative or fact
finding;
(b) The investigators failed to interview key witnesses until
more than one week after 21 January 2019;
(c) The written report referred to "inconsistencies" in the
Claimant's account of the incident as a reason for
disbelieving her without properly setting out what the
inconsistencies were;
ii. Disbelieved the Claimant in its investigation report?
iii. Adopt a "neutral" stance in investigating the Claimant's complaint?
iv. Fail to take any action against the Second Respondent following
the Claimant's complaint?
b. Was that treatment "less favourable treatment", i.e. did the Respondent
treat the Claimant less favourably than it treated or would have treated
others ("comparators") in not materially different circumstances?
c. The Claimant relies upon a hypothetical comparator;
d. If so, was this because of the Claimant's sex and/or because of the
protected characteristic of sex more generally?
2. EqA section 26: Harassment related to sex
a. Did the Second Respondent engage in a sexual assault on the evening
of 21 January 2019?
b. If so, was that conduct unwanted?
c. If so, did it relate to the protected characteristic of sex and/or was it of a
sexual nature?
d. Did the conduct have the purpose of violating the Claimant's dignity or
creating an intimidating, hostile, degrading, humiliating or offensive
environment for the Claimant?
e. Did the conduct have the effect of violating the Claimant's dignity or
creating an intimidating, hostile, degrading, humiliating or offensive
environment for the Claimant? (Whether conduct has this effect involves
taking into account the Claimant's perception, the other circumstances of
the case and whether it is reasonable for the conduct to have that effect.)
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