In the case of Ms D v E Ltd, Mr F and Ms G the claimant was a young woman aged 19 employed by the first respondent (E Ltd) as a sales assistant. The second respondent, Mr F, has been employed by E Ltd as a sales assistant since 2014. Mr F is a man who was in his early 40s at the relevant time.

In January 2022 the claimant was required to work in the warehouse. The claimant’s job that day was to unload pallets and put stock out on the shop floor. The claimant used a shopping trolley to transfer some of the products from the warehouse to the shop floor and, when necessary, back again.

The claimant says that while working in the warehouse, Mr F touched her in a number of ways – the first alleged type of touch was holding the claimant’s hand and pulling it towards him, on other occasions he put his hand on her shoulder or stroked and squeezed her arms. On another occasion, he held her hands up, so they were in front of her.

The final alleged act was that when the claimant was pushing a trolley, Mr F put his arms under her arms and held the trolley pushing his arms against her breasts and pressing against the claimant’s back and bottom so that she was unable to get away. He remained pressing against her and then brushed against her when he moved away.

The claimant confided in a colleague what had happened and said she wanted to go home and talk to her older sister for advice and support before reporting it. The claimant walked home after her shift and described feeling confused and upset on that journey. The claimant decided to report the incident to her managers when she was next in work.

She arranged to talk to a team leader at the store who contacted HR. On 13 January 2022 Mr H attended the store, interviewed the claimant and conducted an investigation. Mr H said that he found it very difficult to decide between the claimant’s account and Mr F’s account, as both were credible. Mr H decided that he did not have sufficient evidence to justify the respondent taking disciplinary action against Mr F.

The claimant appealed against the grievance outcome. The appeal meeting was arranged with Ms G. In the course of giving her evidence to the Tribunal, Ms G confirmed a number of times that the claimant could have told Mr F to stop. When pressed about this, she said unequivocally “I believe she [the claimant] should have told him to stop and she didn’t”.

Ms G also said in evidence that she assumed the claimant did not have the life skills to deal, herself, with the harassment without talking to her sister, which she accepted as reasonable. Ms G was asked, effectively, if she thought older women would have more skills to deal with harassment because harassment was an inevitability for women. The Tribunal inferred from her answers, that this was in fact Ms G’s view.

In her witness statement, Ms G said that she felt that she did not have sufficient reasonable belief that what the claimant had alleged had occurred between her and the claimant (as Ms G put it) to justify her overturning Mr H’s decision.

In the judgment of the ET, the outcome of the appeal was influenced by Ms G’s view about the way that female victims of sexual harassment ought to behave and the inevitability of harassment for women. It was therefore related to the claimant’s sex.

Employment judge Miller said the acts of F to D were “likely to be an escalating infringement” of D’s personal space, with F “apparently becoming more confident as the day went on”. He said there was no dispute the acts were related to D’s sex and that it was “of a sexual nature”.