Claimant v GXO Supply Chain UK Ltd

The tribunal found as a fact that Mr Kang did not make masturbatory gestures or give the claimant the middle finger. The tribunal preferred Mr Kang's evidence that it was the claimant who harassed him. The tribunal found Mr Kang more credible, noting he produced extensive WhatsApp evidence of the claimant's threatening and unpleasant messages, had repeatedly blocked her, made contemporaneous complaints to his employer, and applied twice for non-molestation orders. The claimant produced no direct WhatsApp evidence from Mr Kang to support her allegations, only her own messages to a third party describing alleged incidents.

Regarding filming: the tribunal found Mr Kang did film the claimant on five occasions at work (November 2022 and July 2023), though not on the dates alleged. The tribunal concluded the filming was unwanted and had the proscribed effect on the claimant, but it was not reasonable for it to have that effect given the context: Mr Kang was acting defensively to record the claimant's inappropriate behaviour towards him. The tribunal also found the conduct was not 'related to sex' – it was caused by the need to stop/record the claimant's behaviour, not by her sex. The fact the parties had a prior relationship did not make Mr Kang's defensive filming 'related to sex'.

Regarding the non-molestation order application on 2 February 2024: the tribunal found this was not done 'in the course of employment' as required by sections 109-110 EqA. The application was made outside work, in a private capacity, via the Family Law Act 1996. The only connection to work was that Mr Kang mentioned some workplace incidents in his witness statement, but this was insufficient to render the application 'in the course of employment'. Even if it were, the tribunal would have found it not reasonable for the conduct to have the proscribed effect given the context of the claimant's prior harassing behaviour. The tribunal also found the conduct was not 'related to sex' – it was to stop future harassment, not associated with sex. It was also not conduct 'of a sexual nature'.

The respondent conceded grievances on 22 May 2023 and 26 May 2023 were protected acts. The tribunal found the other alleged protected acts (14 June 2023, 16 June 2023, 17 June 2023, 15 April 2024, 20 May 2024) were not protected acts as they did not contain complaints that, factually, were capable of amounting to breaches of the Equality Act. For the detriment of moving the claimant from D shift to B shift (upheld 21 July 2023), the tribunal found the reason was that Mr Munday concluded the claimant was guilty of misconduct and was causing problems on the shift – not because of the protected acts. For the incomplete DSAR response, there was no evidence the Global Data Privacy Team knew of the protected acts, the search was automated, and a year had passed. For the failure to provide an independent translator on 23 May 2024, the reason was the respondent's usual policy and Ms Mincu had interpreted previously without objection – not because of the protected acts. For preventing contact with D shift employees, the reason was the overwhelming volume of the claimant's complaints (over 100 emails in August 2023 alone to multiple recipients) – not the protected acts from a year earlier.