Employment Tribunal Rejects Claimant’s Request for Reconsideration

OUTCOME: Refused

Case Number: 3301610/2023

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Watford Employment Tribunal

On: 9,10 and 11 July 2025

Before: Employment Judge S. Matthews

Representation Claimant: [redacted] Respondent: [redacted]

JUDGMENT having been sent to the parties on 12 August 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:

REASONS

1. The claimant was employed through an agency as a healthcare worker for the respondent. She brought a claim alleging harassment related to sex and sexual harassment. The respondent denied the claims.

2. The tribunal was supplied with a bundle of 672 pages. I heard witness evidence from the claimant and from the following witnesses for the respondent:

[redacted]  [NAME_7], [NAME_10], referred to as both XY and A below;  [NAME_11], Ward Manger;  [NAME_14], former receptionist at the respondent, and  [NAME_15], People Manager.

3. References to pages in the bundle below are set out in brackets(x). References to paragraphs in the witness statements consist of the witness’s initials and number or letter of the paragraph (AB-YZ).

4. The witness [NAME_7] was the subject of an Anonymisation Order and a Restricted Reporting Order which was in place until promulgation of this Judgment. She is referred to in the documents as A and the pseudonym A and XY were used interchangeably throughout the hearing.

5. The hearing took place before a Judge sitting alone and not a full panel because a full panel was not available. The parties were informed by email the day before

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and did not object.

6. On the first day of the hearing, we discussed the timetable and order of witnesses, and I indicated that I wished to hear evidence on liability in the first part of the hearing and that I would only proceed to hear evidence on remedy if the claimant was successful on liability.

7. The respondent made an application for anonymity and a restricted reporting order for a person whose name is redacted in the documents and is referred to as ‘B’. The claimant has made allegations against that person which do not form part of this claim. I refused the respondent’s application because I did not hear any specific evidence about the effect on B’s family and personal life to enable me to weigh that against the fundamental principle of open justice. I took into account that Employment Judge Margo had recorded in his case management order that the allegations relating to B do not appear relevant to any of the issues, and in the event I did not hear any evidence relating to B and I did not need to refer to B in these reasons.

8. The details of the case displayed at the tribunal were incorrect on the first morning of the hearing. They anonymised the parties. Before I started hearing evidence in the afternoon I ensured that was rectified. I ensured the tribunal was displaying a restricted reporting order in respect of the witness [NAME_7].

9. The morning of the hearing consisted of a discussion of case management issues and the application regarding the person, B, who I refer to above and who is not relevant to this claim.

10. We heard the claimant’s evidence on the first afternoon of the hearing and the respondent’s evidence on the second day of the hearing.

11. It was necessary for me to stop the claimant cross examining the respondent’s witnesses part way through the evidence of [NAME_7]. I gave the claimant several warnings about her conduct before I did so. Many of her questions did not go to the issues I needed to decide but when I pointed this out to the claimant she complained loudly that my interjections interrupted her chain of thought. I reached the conclusion that she saw cross examination as an opportunity to berate the witnesses rather than test their evidence and that she did not intend to restrict herself to the issues in dispute. Indeed she said she wanted to do a character assassination. I offered her a break to reconsider her questions and how they aligned to the issues, which she declined. I suggested that she listed the topics she wanted to ask questions on so that I could check the topics aligned with the issues but she was unwilling to do so.

12. The questions she asked included asking [NAME_7] to consider the claimant’s vulnerable position as an immigrant. When [NAME_7] replied that she was also an immigrant the claimant replied, ‘But you are Caucasian’.

13. I told the claimant that she was to put her questions through me and asked her what questions she would like me to put to the witnesses. She said she did not want to ask questions if I was going to stop her. Indeed, when there was an opportunity to cross examine [NAME_14] she said that she did not recognise her, that she was “lying” and refused to suggest any questions to put to her.

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14. I therefore ensured I asked questions to the extent that I was satisfied that the witnesses' evidence had been tested, recognising that the claimant was a litigant in person and did not have the benefit of representation. The issues 15. The claims and issues were listed in the Record of Preliminary Hearing sent to the parties on 7 July 2023. At the beginning of this hearing we clarified one part of the issues which is where the event on 29 March 2022 is alleged to have taken place. The claimant says that it took place around the reception area between the yellow and red ward which was in front of the mini elevator.

16. The issues relating to liability were therefore finalised as follows: Limitation 1. Are there any allegations of discrimination that have been presented outside of the applicable three months statutory time limit for a discrimination claim pursuant to section 123(1 )(a) of the Equality Act 2010 ("[NAME_18]")? 2. If so, are these allegations of discrimination part of a continuing act of discrimination pursuant to section 123(3)(a) of the [NAME_18]? 3. If not, is it just and equitable for time to be extended under section 123(b) of the [NAME_18] to allow such allegations to be heard? Factual Issues 4. The Respondent admits that on 17 January 2023, [NAME_7] (Nurse Band 6 [NAME_10], [COMPANY_19]) placed her hands on the Claimant's shoulders and leaned her forehead to the Claimant's forehead. The Respondent contends that there is no link between the Claimant's sex and this incident. The Respondent's position is that this incident was appropriately investigated and dealt with at the time.

5. On 29 March 2022, did [NAME_7] place her left hand on the Claimant's right shoulder and place her right hand between the Claimant's chest and neck, while addressing the Claimant about what she needed to tell her agency to do in order to authorise her timesheets whilst they were standing in front of the mini elevator around the reception area between the yellow and red wards? 6. On or around April/ May 2022 at the [NAME_20] of the Respondent's [COMPANY_19], did [NAME_7] move her hands up and down the Claimant's body, leading to the Claimant having to remove [NAME_7]’s hands from her body? Legal Issues Harassment related to sex (section 26(1) of the [NAME_18])

7. In relation to each of points 4 to 6 above, does the alleged conduct amount to unwanted conduct?

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8. If so, was the unwanted conduct related to the Claimant's sex (the Claimant identifies as female)? 9. If so, did the unwanted conduct have the purpose of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 10. If not, did the unwanted conduct have the effect of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 11. If so, was it reasonable for the unwanted conduct to have this effect? Harassment related to sex (section 26(2) of the [NAME_18]

12. In relation to each of points 4 to 6 above, does the alleged conduct amount to unwanted conduct of a sexual nature? 13. If so, did this have the purpose of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 14. If not, did this have the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 15. If so, was it reasonable for the unwanted conduct to have this effect? Introduction 17. The claimant was employed by [NAME_22], a recruitment agency. She was engaged as a Healthcare Support Worker for the respondent when the three incidents set out at 4, 5 and 6 of the list of issues were said to have occurred. Her case is that these were either harassment related to sex or sexual harassment. She commenced Acas conciliation on 22 January 2023 which concluded on 24 January 2023. The claim form was issued on 2 February 2023.

18. The respondent denies that the claimant was subject to the alleged unwanted conduct on 29 March 2022 and or around April/May 2022 or that any such conduct was related to her sex or conduct of a sexual nature. The respondent admits that [NAME_7] touched the claimant’s forehead with her own forehead on 17 January 2023, but it is denied that this conduct related to her sex or was conduct of a sexual nature. Findings of Fact Claimant commences work for the Respondent 19. On 26 March 2022 the claimant arrived to work at [NAME_19] for the first time. Unfortunately, she had been sent there by her agency by mistake, the agency having neglected to tell her that her shift had been cancelled. She was not on the rota, having been ‘bumped’ because a member of bank staff who had priority had booked on to the shift ([NAME_7]/20).

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20. She encountered [NAME_7] ([NAME_7]), [NAME_10]. The claimant said that [NAME_7] screamed at her “who you are, who you are?” (AAO/5b). I find it likely that the claimant was defensive and angry, to an extent understandably, having turned up for work to find that she was not needed. [NAME_7]’s statement explains her usual practice when this kind of bumping error happens and why it is important to identify all staff present ([NAME_7]/18-23), and I find it unlikely she would have departed from that. She accepts she may have spoken in a slightly raised tone inadvertently because she has hearing difficulties ([NAME_7]/25) ([NAME_7]/12). I find it likely that if she had “screamed” at her, the claimant would have complained at the time.

21. In deciding that I do not accept the claimant’s version of events I have taken into account that a subsequent investigation (described below) found that [NAME_7] did not shout and that it was not unreasonable for her to have asked the claimant to verify her identity ([NAME_15]/10.7).

22. I have also taken into account the demeanour of both the claimant and [NAME_7] when giving their evidence. It was apparent to me during the tribunal, but also from the documents in the bundle, that the claimant is prone to exaggeration and hyperbole and is confrontational. As described above I had to stop her questioning the witnesses when it became apparent that she wished to confront them on issues which I did not need to decide rather than test their evidence. [NAME_7], on the other hand, answered questions in a straightforward way in the tribunal and remained very calm and measured despite the claimant becoming very confrontational towards her.

23. That alleged event on 26 March 2022 does not form part of the issues I need to decide, but the claimant gave evidence on it and I have included it by way of background.

24. The claimant and [NAME_7] first worked together on 28 March 2022. They worked together on approximately 10 shifts between March 2022 and February 2023 ([NAME_7]/13/14). Factual issue 4 25. The claimant alleged that the following occurred on their second day working together, 29 March 2022 ([NAME_23]): “I was surprised when A awkwardly placed her right hand on my chest and her left hand across my shoulders while her attempted to use the small elevator as she revisited my timesheet, her authorisation and the need for me to be paid for the fortnight shift.” 26. [NAME_7] recalls a conversation by the elevator about timesheets. She does not recall the date, and, to her recollection, it was brief and amicable (A/33).

27. The claimant did not make a complaint at the time and nor did she raise it in the formal complaint of 19 January 2023 which I refer to below, even though she did complain then about the event three days earlier on 26 March 2022 when she turned up for work and was not on the rota. In evidence she said the reason she did not complain was because it was in her subconscious, and she bottled it up. The complaint was subsequently investigated by obtaining a statement from [NAME_7] in which she confirmed that she was working that day. She denied interacting

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with the claimant physically (473).

28. I find the description of the alleged movement by the claimant difficult to understand and she was not able to describe it coherently in the tribunal. I noted that she had not referred to it in her original formal complaint.

Accordingly, on a balance of probabilities, I did not find the allegation was made out. But even if [NAME_7] did touch the claimant in some way when discussing time sheets I did not hear any evidence from the claimant to suggest that such a gesture was related to sex or conduct of a sexual nature. Factual issue 5 29. On or around April/May 2022, the claimant says the following occurred when she was on the [NAME_24] ([NAME_24]): “A literally was rubbing her hand on my body that I was compelled to remove her hands from my body by her disgusting workplace sponsored sensual behaviour.” She raised that in her formal complaint of 19 January 2023, although she did not make a complaint at the time. It was subsequently investigated by a statement obtained from [NAME_7] in which she said that she “never conducted this sort of physical behaviour towards any of my colleagues or to anybody in the workplace” (473).

30. I found it implausible that [NAME_7] would, as the claimant alleged, rove her hands over the claimant to the extent that the claimant felt compelled to remove them. That is based on my impression of [NAME_7] and accepting the testimony of the other witnesses, that [NAME_7] is a warm and empathetic person and she would have noticed if the claimant had the reaction whereby she had literally removed her hands. I also find that the failure of the claimant to report the incident at the time is inconsistent with her confrontational manner when the incident described below on 17 January 2023 occurred. If the incident had occurred as she alleged she would have been very likely to report it at the time. 31. [NAME_7] describes herself as a warm personality and admits that she may, at times, put her hand on the arm or shoulder of work colleagues to show empathy or to show gratitude to them for turning up for a shift ([NAME_7]/45). [NAME_4] ([NAME_4]), Lead Nurse, said that was quite common in their workplace. They are nurses and they sometimes use touch gestures to show empathy. [NAME_11] ([NAME_11]), Ward Manager, described her as follows ([NAME_11]/9): "A had a warm personality and wanted people to feel comfortable and happy at work. She could often show this through tactile gestures such as hugging someone or placing her arm around them. This tended to be on particular occasions such as birthdays or when someone was leaving the Trust, or to show compassion to patients. I have never considered there to be anything inappropriate or sexually orientated in "A"s conduct and she would simply want to show people that she cared for them. There have been no complaints regarding "A"'s conduct and her gestures were well reciprocated.”

32. It is possible that [NAME_7], because she is a tactile person, touched the claimant perhaps on her arm or shoulder and thought nothing of it at the time, and that the claimant, who is very adamant that she does not want to be touched, was disturbed. While I accept that the claimant says that she bottled her feelings up

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on balance I find that implausible for the reasons set out above. Accordingly the claimant has failed to establish that the incident occurred as alleged. Factual issue 6 33. On 17 January 2023, an interaction took place which the respondent accepts, to an extent, as outlined at factual issue 6 above. [NAME_7] describes a particularly busy shift and consequently she was extremely relieved to see the claimant when she turned up for work ([NAME_7]/37): “In my enthusiasm, I gently placed both of my hands on her shoulders and touched her forehead with my forehead as a way of showing my gratitude that she had arrived.” 34. She further stated in her statement ([NAME_7]/38): “It is difficult to explain why I greeted the claimant in this way as this is not a gesture I have used before. I wanted to show my sincere thanks for her arrival on the shift and believe I must have become overcome with emotion and acted in the moment. My actions were innocent and well intentioned and certainly did not have any sexual connotation. The Claimant did not step back or show any other form of body language to show that my conduct was unwanted which is why I was surprised by her subsequent complaint.” 35. The claimant’s interpretation of the gesture differs (OAA/5f). She said: “It was surprising and alarming to me when A,.... without any justiciable consensual basis ... placed her two hefty hands on my two shoulders by pinning me down whilst she simultaneously placed her tall bodied forehead on my forehead in flagrant disregard to the presence of COVID-19 infectious disease on the ward which puts patients and staff at risks despite my maintaining social distancing and my wearing a face mask. I was dumbfounded and had to report her reprehensible disgusting behaviour to the defendant ward manager ([NAME_11]) and to my Agency before I addressed A on the impropriety of her egregious insidious socially unacceptable behaviour to which she deflected from.” 36. The incident was witnessed by [NAME_14], receptionist. [NAME_14] overheard [NAME_7] saying, “something like ‘Thank you so much for coming, we were so short staffed,”. That corroborates [NAME_7]’s evidence that her reason for the gesture was her relief that the claimant had turned up for work. [NAME_14] remembered the incident because it was an “unusual” gesture, but she noted that [NAME_7] “genuinely appeared very happy that the claimant had come to help”. She did not perceive any sexual connotations and she saw nothing in the claimant’s reaction that she perceived it that way (JB/10). She wrote a short email for the subsequent investigation on 18 July 2023 which gave the same account (469).

37. As indicated above the claimant did not challenge [NAME_14] on what she saw when given a chance to do so in cross examination. When asked about it when she was cross examined the claimant said, "[NAME_14] must have been hallucinating.” She also said, “She is not a witness of truth. She is a liar. I don’t even know her.” 38. The claimant spoke to [NAME_7] around an hour and a half after the incident, saying that, in her culture, people do not touch on the head ([NAME_7]/39). [NAME_7] apologised. The claimant reported the incident to [NAME_11], Ward Manager, who spoke to [NAME_7]

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shortly afterwards. [NAME_7] told her that she had apologised and she assumed that the matter was concluded ([NAME_11]/27 to 30).

39. On 20 January 2023, [NAME_7] was confronted in a private conversation by the claimant which the claimant recorded covertly. The claimant accepts that [NAME_7] ‘proffered apology’ (OAA/5f). In her statement [NAME_7] describes the claimant as verbally and physically aggressive, “shouting and slapping her hand into the palm of her other hand as she spoke”. “She said she had googled the gesture and found out that it was ‘voodoo practice’. She then accused me of being a lesbian”. ([NAME_7]/41)

40. On 19 January 2023 the claimant raised a formal complaint which she described as a formal grievance (325). It was not dealt with within the respondent’s grievance procedure because the claimant was an agency worker (375), but a very thorough investigation was carried out as described below.

41. On 2 February 2023, a preliminary meeting took place on [NAME_25] between the claimant, [NAME_15] ([NAME_15]) (People Manager) and [NAME_4] (384-386). The purpose of the meeting was to discuss the complaint prior to the investigation. [NAME_4] was asked to accompany [NAME_15] because [NAME_11], who might have otherwise gone, was at that time on sick leave ([NAME_15]/5).

42. During the meeting the claimant was very angry. The minutes have been heavily amended by the claimant but even taking those amendments into account, it is clear that the claimant made a threat to hit or slap [NAME_7] and that [NAME_4] had to advise the claimant to stay calm and talk professionally.

43. As a result of that threat, the respondent decided to pause the claimant’s work on the ward. As well as the threat, there was a complaint raised against the claimant by the ward manager at another of the Trust’s sites that she had raised her voice at them ([NAME_15]/8). The respondent wanted to investigate both before the claimant came back to work, particularly as [NAME_4] was going on holiday and [NAME_11] was off sick, meaning the 2 senior managers on the ward would not be able to monitor a situation where there was potential for conflict ([NAME_15]/8).

44. The claimant was due at work the next day. They tried to get a message to her through her agency, but she did not receive it, and she turned up to work. [NAME_4] explained to her that she was temporarily restricted from booking further shifts until her complaint had been resolved. The claimant recorded the conversation without [NAME_4]’s consent ([NAME_4]/15). The pause on her work was lifted on 23 February 2023 when [NAME_4] returned to work from her holiday, but the claimant did not work for the respondent again ([NAME_11]/34).

45. A detailed investigation into the claimant’s formal complaint was carried out by [NAME_26] ([NAME_26]) (ICT Manager) supported by [NAME_29] ([NAME_29]/9/10). The report and Appendices (293-473) run to 80 pages and demonstrate that she interviewed several staff and considered relevant documents. The investigation concluded that the claimant’s allegations about [NAME_7]’s conduct on 26 March 2022 and April/ May 2022 were not substantiated (305). It found the particular gesture on 17 January 2023 was “inappropriate professional conduct” but there was “no evidence to substantiate sexual intent or to harm OAA’s dignity” (304). It was

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recommended that [NAME_7] and other staff on the unit have further training on Equality, Diversity and Inclusion (17) (459). 46. [NAME_26] wrote to the claimant to confirm the outcome on 27 April 2023 (452-460). [NAME_7] carried out the recommended training in late May and early June 2023 ([NAME_7]/5).

47. I set out below some specific findings I made on the evidence which are relevant to my conclusions:

48. The claimant does not accept that any level of physical contact is normal in the workplace. She made that very clear in cross examination. That is a view which she is entitled to hold. Even reaching out and touching a colleague's arm is unacceptable in the claimant’s view. The only time the claimant would find any physical contact acceptable without consent is, she says, to avert an accident. She gave the example of being on a very crowded bus and a young male reaching out to stop her falling.

49. The claimant emphasised several times in evidence, and even in submissions, that the gesture on 17 January 2023 could have passed covid to her. I found that she focused on this in her evidence and submissions more frequently than she alleged that the gesture was related to her sex or had sexual connotations.

50. In evidence the claimant maintained her allegation that [NAME_7] was engaging in voodoo practice; that [NAME_7], as a Caucasian person, was trying to touch her forehead to get some power from her as an African person and that she had pinned her down so that she could place her head on the claimant’s forehead. When asked whether she alleged that the gesture was a sexual gesture or voodoo practice, the claimant was emphatic that it was both. She also alleged that it was racist although that did not form part of her claim. She was unable to explain how or why it was sexual.

51. I found the claimant’s explanation for [NAME_7]’s motivation implausible. I found [NAME_7]’s explanation, that she was pleased to see the claimant because it was a busy shift, far more plausible. I also considered that her evidence was corroborated by [NAME_14], whose evidence was not challenged by the claimant.

52. In conclusion I found that the claimant failed to establish that factual allegations 4 and 5 occurred as alleged. It is accepted that factual allegation 6 occurred. I have found that the motivation for the gesture was not related to sex and it was not conduct of a sexual nature. Law 53. Section 26 of the Equality Act (EqA) 2010 provides: “26 Harassment (1) A person (A) harasses another (B) if—

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

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(b) the conduct has the purpose or effect of—

(i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if—

(a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if—

(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

(a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.”

54. It is important to consider whether harassment is related to a protected characteristic (Henderson v GMB [2015] IRLR 451). The harassment need not be ‘because of’ the protected characteristic but the question of whether it is related to the protected characteristic is objective. (Hartley v Foreign and Commonwealth Office Services (UKEAT/0033/15). Relevant protected characteristics include sex.

55. The importance of considering the relationship of the conduct to a protected characteristic was emphasised by HHJ Auerbach in Tees Esk Wear Valleys NHS Foundation Trust v Aslam & Anor [2020] IRLR 495: “Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.”

56. In Blanc de Provence Ltd v Ha [2023] EAT 160, [2024] I.R.L.R. 184, HHJ Taylor noted that conduct can be related to a protected characteristic where it is done because of the protected characteristic, but that is by no means the only way that conduct can be related to a protected characteristic.

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“It is clear that the test of whether conduct is ‘related to [sex]’ is different to that of whether it is ‘because of [sex]’ as is required to make out a claim of direct sex discrimination. The term ‘related to [sex]’ is wider and more flexible than ‘because of [sex]’. Conduct could be found to be ‘related to [sex]’ where it was done ‘because of [sex]’, but that is Judgment approved by the court [NAME_30] v 1) University of Hertfordshire 2) [NAME_30] © EAT 2024 Page 8 [2024] EAT 169 not a requirement. So, for example, if A subjects B to unwanted conduct with the purpose of ‘creating an intimidating environment for B’ in circumstances in which it is established that A would not have subjected a man to the same conduct, that would establish that the conduct was ‘related to [sex]’. But there are many other ways in which conduct could be ‘related to [sex]’ such as where there is conduct that is inherently sexist such as telling sexist jokes.” 57. In Raj v Capita Business Services Ltd [2019] IRLR 1057 a manager gave an unwanted shoulder massage to one of her colleagues on two or three occasions. The Tribunal were entitled to find that, although the conduct constituted harassment, it was not related to sex.

58. The EAT in [NAME_31] v [NAME_31] 2009 ICR 724, EAT, gave some guidance as to how the ‘effect’ test should be applied. It noted that the claimant must actually have felt, or perceived, his or her dignity to have been violated or an adverse environment to have been created. If the claimant has experienced those feelings or perceptions, the tribunal should then consider whether it was reasonable for the claimant to feel that way.

59. This was further considered in Pemberton v Inwood [2018] ICR 1291, para.88: “In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances—subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.”

60. In Land Registry v Grant [2011] ICR 1390, CA, Elias J said;

“It is not importing intent into the concept of effect to say that intent would generally be relevant to assessing effect. It would also be relevant to deciding whether the response of the alleged victim is reasonable”.

61. The Equality and Human Rights Commission (EHRC) code gives guidance on the meaning of unwanted (para 7.8):

“The word ‘unwanted’ means essentially the same as 'unwelcome' or 'uninvited'. ‘Unwanted’ does not mean that express objection must be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.”

62. Paragraph 7.12 of the EHRC code gives guidance on the meaning of sexual harassment:

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“Sexual harassment occurs when a person engages in unwanted conduct as defined in [s.26 (1) [NAME_18]] and which is of a sexual nature.”

63. The EAT in [NAME_32] v [COMPANY_32] and ors [2000] IRLR 151, EAT, considered that sexual harassment should be defined on a common sense basis by reference to the facts of each particular case. The EHRC code gives examples at 7.13 of:

“verbal, non-verbal or physical conduct including unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.”

64. The Equality Act 2010 provides for a shifting burden of proof. Section 136 provides as follows:

(2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

Consequently, it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the Act.

65. The time limit for discrimination claims is set out at s.123 of the [NAME_18], (subject to ACAS early conciliation provisions):

“123 Time limits

(1) .... proceedings on a complaint within section 120 may not be brought after the end of—

(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. ...

(3) For the purposes of this section—

(a) conduct extending over a period is to be treated as done at the end of that period;

(b) failure to do something is to be treated as occurring when the person in question decided on it.”

Submissions 66. I received oral and written submissions from both parties which I have taken into account.

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Conclusions 67. I made separate findings on each of the three factual issues alleged. Factual issues 4 and 5 68. With regard to the alleged incident on 29 March 2022, I found that the incident did not occur as alleged. The claimant did not refer to it in her formal complaint even though she referred to an incident three days earlier which was arguably not as serious. I considered the type of movement alleged unusual, and the claimant failed to describe it coherently. Accordingly I did not find her evidence about the incident credible.

69. In any event, I would find that such an incident was not related to sex because it was in the context of a discussion about time sheets and it was not conduct of a sexual nature.

70. The claimant was unable to identify the exact date of the alleged incident in April/May 2022. It was a serious allegation that [NAME_7] had roved her hands over the claimant to the extent that the claimant had to remove them. I preferred the respondent’s testimony because I found it likely that the claimant would have complained at the time if that had occurred. I found that the claimant had failed to establish that the incident occurred as alleged.

71. The claimant has failed to establish facts from which I could decide that the respondent contravened s.26 [NAME_18] and the burden of proof does not shift.

72. In addition, those allegations are out of time and the tribunal does not have the jurisdiction to consider them. As the complaints failed I did not find it necessary to consider in detail whether part of a continuing discriminatory course of conduct or whether, if that was the case, it would be just and equitable to extend time. Factual issue 6 73. The respondent accepts that the incident on 17 January 2023 occurred. I have therefore considered whether it was related to sex, whether it was conduct of a sexual nature, the purpose or motivation of [NAME_7], whether it was unwanted, the effect on the claimant and whether it was reasonable for it to have that effect.

74. I have decided that the gesture was not related to sex or conduct of a sexual nature. In reaching that conclusion I have considered the nature of the gesture, and I have not identified any feature that leads me to conclude that it is related to sex or conduct of a sexual nature. I find that there was nothing inherently sexual about it. Moreover, the claimant did not advance a persuasive case in evidence or her submissions. I heard no evidence that led me to conclude that the claimant genuinely felt the gesture was sexual or related to sex in any way. The claimant said she was “dumbfounded”. She focused on the risk of infecting her with covid or that it was a voodoo practice.

75. In respect of [NAME_7]’s motivation for the gesture I found that [NAME_7] was on a busy shift, and I accepted her evidence that her motivation was that she was pleased to see the claimant. As I have stated above, I find that is a more credible explanation than the claimant’s explanation of voodoo or lesbianism or sexual assault.

Case Number: 3301610/2023

14

76. Having accepted [NAME_7]’s evidence on her motivation, I find it did not have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

77. I accept the claimant’s evidence that the gesture was unwanted. It was unwelcome and uninvited. I accept that the claimant found it offensive, hostile and degrading. The claimant had a strong belief that there should be no touch whatsoever in the workplace without specifically obtaining consent first.

78. However I do not accept that it was reasonable for the conduct to have that effect. Most people would accept some degree of touch in the workplace, particularly in a caring profession such as nursing. It was a short lived event which cannot reasonably have been expected to cause offence. I have taken into account the testimony of [NAME_14] who witnessed the incident and perceived no sexual connotations. She interpreted it as [NAME_7] being genuinely happy to see the claimant. Her evidence was not challenged by the claimant. Summary 79. The claimant has failed to establish that factual issues 4 and 5 occurred as alleged. In respect of factual issue 6 she has failed to establish that the conduct was related to sex or of a sexual nature. Moreover it was not reasonable for the conduct to have the effect alleged.

80.

Accordingly, the claimant’s claims are dismissed.

Approved by:

Employment Judge S Matthews

29 August 2025

JUDGMENT SENT TO THE PARTIES ON

1 September 2025

FOR THE TRIBUNAL OFFICE

Case Number: 3301610/2023

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

Heard at: Watford

On: 9,10 and 11 July 2025

Before: Employment Judge S. Matthews

Representation Claimant: [redacted]

Respondent: [redacted]

JUDGMENT

The complaint of harassment related to sex is not well-founded and is dismissed.

Approved by:

Employment Judge S. Matthews

11 July 2025

JUDGMENT SENT TO THE PARTIES ON

12/08/2025

FOR THE TRIBUNAL OFFICE

Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge.

There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/

Case number: 3301610/2023

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

CERTIFICATE OF CORRECTION

Under Rule 67, the reasons for the judgment sent to the parties on 1 September 2025 is corrected as set out in bold type at paragraph 2, 41 & 70 of the corrected reasons for the judgment.

Approved by:

Employment Judge S. Matthews

19 December 2025

SENT TO THE PARTIES ON

22 December 2025

FOR THE TRIBUNAL OFFICE

Important note to the Claimant(s) and Respondent(s): Any dates for asking for written reasons, applying for reconsideration or appealing against the judgment are not changed by this certificate of correction and corrected judgment. These time limits still run from the date the original judgment or reasons were sent, as explained in the letter that sent the original judgment.

Case No: 3301610/2023 11.6C Judgment – Reconsideration refused – claimant - rule 72

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

JUDGMENT

The claimant’s application dated 15 September 2025 for reconsideration of the judgment dated 11 July 2025 is refused.

REASONS

There is no reasonable prospect of the original decision being varied or revoked, because:

1. In a judgment dated 11 July 2025 sent to the parties on 12 August 2025 I dismissed the claimant’s complaint of harassment relating to sex. Written reasons were sent to the parties on 1 September 2025.

2. On 15 September 2025 the claimant made an application for reconsideration of the judgment. The application was copied to the respondent.

3. I have considered the application under rules 68 to 70 of the Employment Tribunal Rules of Procedure 2024.

The rules on reconsideration

4. Rule 68 of the Employment Tribunal Rules of Procedure 2024 states:

“A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so.”

5. The requirement that a judgment may only be reconsidered where reconsideration is necessary in the interests of justice reflects the public interest in the finality of litigation.

6. On reconsideration, the decision may be confirmed, varied or revoked. If it is revoked it may be taken again.

7. Rule 69 states that an application for reconsideration must be made in writing setting out why reconsideration is necessary within 14 days of the later of:

“(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or (b) the date that the written reasons were sent, if these were sent separately.”

8. Rule 70 explains the process to be followed on an application for reconsideration. It states:

(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.

Conclusions on the claimant’s application

9. The claimant’s application for reconsideration was made within the required timeframe. The written reasons were sent on 1 September 2025. The application was sent by email to the tribunal on 15 September 2025 which was within 14 days.

10. Unfortunately, the tribunal has no record of receiving the application for reconsideration on 15 September 2025. I am however satisfied that the claimant made the application on 15 September 2025. She has supplied copy screenshots to the tribunal showing that it was sent, and I have also seen an email from the respondent’s solicitors dated 7 April 2026 which refers to the claimant submitting the application on that date.

11. For the reasons explained in Regional Employment Judge Foxwell’s email dated 24 April 2026 there was a delay until 6 May 2026 before I became aware of the application. I apologise to the parties on behalf of the tribunal for the delay in responding to the application.

12. The application is lengthy. It is 27 close typed pages. I have read it carefully. It is repetitive in parts; it repeats long sections of the written reasons and comments on them in brackets and bold type. The grounds appear to be lack of a fair hearing, failure to consider evidence, incorrect or unreasonable factual findings and preferential treatment of the respondent.

13. I record here that I do not accept the claimant’s contentions of procedural unfairness which include assertions that she did not have all the documents and that I prevented her from relying on written submissions. The complaint about the electronic bundle was raised subsequent to the hearing and dealt with in my

response to the claimant’s application for costs dated 30 January 2026. I did not prevent the claimant from making written submissions. I received written submissions from the claimant by email on 11 July 2025 and I refer to having taken them into account at paragraph 66 of the reasons.

14. Rule 70(2) requires me to consider whether there is any reasonable prospect of the original decision being varied or revoked.

15. I have considered whether there was any reasonable prospect of a conclusion that variation or revocation of the original decision was necessary in the interests of justice.

16. There must be some basis for reconsideration; the process is not an opportunity for a party to provide further evidence or to seek to reopen matters which the tribunal has determined without good reason.

17. I concluded that there is no reasonable prospect of variation or revocation of the original decision. The grounds relied on are matters that were raised at the hearing, or which could have been raised at the hearing. The application for reconsideration does not raise any error of law, any procedural error or any other matter which would make reconsideration necessary in the interests of justice.

18. The claimant’s application for reconsideration is therefore refused.

Approved

_____________________________

Employment Judge S. Matthews

Date: 14 May 2026.

JUDGMENT SENT TO THE PARTIES ON

14 May 2026

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FOR THE TRIBUNAL OFFICE