Claimant v XML International Ltd
Outcome
Individual claims
Claimant withdrew this claim at the case management hearing on 10 August 2023 because she lacked qualifying service (less than two years' service required). The claim was dismissed on withdrawal.
Claimant withdrew this claim at the case management hearing on 10 August 2023 because she lacked qualifying service. The claim was dismissed on withdrawal.
Claimant alleged she was entitled to 3 months' notice rather than 30 days. The tribunal found there was no agreed variation to the contract term for notice, which remained 30 days. She worked her full 30 days notice period, so there was no breach.
Claimant alleged Nir Agam called a male coworker 'pussy' in April 2022 (sex-related harassment). Tribunal found such a comment was made and could have been offensive, but the claim was out of time and it was not just and equitable to extend time. There was no contemporary evidence of the claimant's response and significant prejudice to the respondent.
Claimant alleged Nir Agam expressed preference for Jewish applicants in March 2022. Tribunal found any comment about the applicant's religion was innocuous and did not express a policy of preferring Jewish applicants. It was not harassment of a non-Jewish co-manager.
Same as the race harassment claim regarding Jewish applicants. The tribunal found the comment was not harassment and was out of time in any event.
Claimant alleged the conduct amounted to direct discrimination because of her German race. Tribunal found the job application episodes, the pussy episode, and comments about the legal team did not constitute less favourable treatment. The Munich episode could not be framed as discrimination as the hypothetical comparator (someone making an unthinking remark that could offend) would have been treated the same.
Claimant alleged direct discrimination because she was non-Jewish. Tribunal found the same reasons as for race discrimination - no less favourable treatment was established in any of the alleged incidents.
Claimant alleged direct discrimination because she was female. Tribunal found no less favourable treatment on grounds of sex in any of the alleged incidents.
Facts
Ms Anderson, a German national, was employed by XML International Ltd from January 2022 to February 2023 as part of the management team for the Remundo tech start-up project. She had a difficult working relationship with Nir Agam, an Israeli project manager, which led to mediation in April 2022. She alleged multiple incidents of harassment and discrimination based on her German nationality, non-Jewish religion, and sex, including comments about her German heritage, speaking Hebrew in her presence, and sexist remarks. Her employment was terminated in January 2023 with 30 days' notice due to what the respondent said were performance concerns and poor cultural fit with a start-up environment. She brought claims for breach of contract (notice pay and share options), harassment, and direct discrimination.
Decision
The tribunal dismissed all claims. The harassment and discrimination claims failed because the tribunal did not find that the alleged conduct occurred as described, or where it did occur (such as the 'Munich incident' where she was advised to be careful about remarking that only good things come from Munich), it was not harassment or discrimination. Several claims were out of time and the tribunal refused to extend time as it was not just and equitable. The breach of contract claims failed because the claimant received her contractual 30 days' notice and the share option scheme term was aspirational rather than an enforceable obligation.
Practical note
Employment lawyers should note that advice to an employee to be culturally sensitive about remarks that could cause offence to colleagues with different backgrounds (here, telling a German employee to be careful about remarks regarding Munich in front of Jewish/Israeli colleagues) does not constitute harassment or discrimination, and may be protected as reasonable workplace management.
Legal authorities cited
Statutes
Case details
- Case number
- 2204050/2023
- Decision date
- 27 March 2024
- Hearing type
- full merits
- Hearing days
- 4
- Classification
- contested
Respondent
- Sector
- technology
- Represented
- Yes
- Rep type
- solicitor
Employment details
- Role
- Management team member in Remundo project
- Service
- 1 years
Claimant representation
- Represented
- No