Claimant v Acre Rigg Social Club Limited

The tribunal found multiple breaches of the implied term of trust and confidence orchestrated by club Secretary Mr Rought, including emasculating grievances, failing to investigate an assault, sniggering at the claimant's MS-related physical challenges, and calling her offensive names. These constituted fundamental breaches. The claimant did not affirm the contract and resigned in response to these breaches. The respondent failed to show a potentially fair reason for the breaches.

Allegations 9 and 15 were factually established but succeeded as harassment claims under s.26 EqA. Under s.212(1) EqA, the same conduct cannot be both harassment and direct discrimination, so the direct discrimination claim necessarily failed.

Allegation 9 (falsely accusing claimant of posting about her MS on social media in aggressive terms) and allegation 15 (sniggering at her MS-related impaired gait, openly laughing and making comments) succeeded. The tribunal found this conduct was unwanted, related to disability, and had the purpose or effect of violating dignity and creating a hostile environment, particularly in the context of Mr Rought's ongoing hostile course of conduct. All other harassment allegations failed factually or legally.

The tribunal found the claimant's constructive dismissal was in response to discriminatory conduct, specifically the mocking of her MS-related gait (allegation 15), which was a fundamental breach of trust and confidence without reasonable cause. This discriminatory treatment was part of the course of conduct leading to her resignation and remained operative on her mind, making the dismissal discriminatory under s.39(2)(c) EqA.

The first PCP (requiring unaccompanied 6am starts) was established, but the tribunal found the respondent had no actual or constructive knowledge that the claimant's reason for requesting accompaniment was MS-related dizzy spells — she said she wanted company. Further, any disadvantage was alleviated by the line cleaner's presence. The second PCP (requiring attendance during sick leave) was not established at all — no evidence was provided of any such requirement or its application.

The tribunal accepted that requesting an adjustment could constitute a protected act under s.27(2)(d) EqA. However, the two detriments alleged (reduction of hours and being told to 'get out' if incapable) were not established as a matter of fact, so the victimisation claim necessarily failed.

Allegations 3 (groping bottom on 30/31 Dec 2021), 4 (comment 'if you get your tits out I will buy you a drink'), 5 (repeated comments on breasts), and 6 (wishing his face was on her breasts) all succeeded. The tribunal found this conduct was unwanted, of a sexual nature under s.26(3) EqA, crass, offensive, and sexually explicit. Allegation 7 (failure to acknowledge grievance) failed because the grievance letters did not mention the sexual harassment, so the failure to acknowledge did not relate to sex or constitute conduct of a sexual nature.

The sexual harassment (allegations 3, 4, 5, 6) constituted a course of conduct over several months that fundamentally breached the implied term of trust and confidence without reasonable cause. The second claimant's resignation on 17 April 2022 was a direct response to this harassment which showed no sign of stopping or being managed. She did not affirm the contract and resigned at least partly in response to these breaches, making the dismissal unlawful sex discrimination under s.39(2)(c) EqA.