Tribunal Text

JUDGMENT

THE EMPLOYMENT TRIBUNAL

Claimant

Miss R Corscadden

Respondent

AND Credit Agricole Cheuvreaux Credit Agricole Cheuvreaux International Ltd) & Others

JUDGMENT OF THE EMPLOYMENT TRIBUNAL

HELD AT: London Central ON: 26 February 2009

2, 3, 4, 5 & 6 March

9, 10, 11, 12 & 13 March 2009

In Chambers on 18 & 19 March 2009

EMPLOYMENT JUDGE: John Warren MEMBERS: Mrs D May

Mr J Bartell

Appearance

For Claimant:

For the 1st Respondent:

For the 2nd, 3rd 4th Respondents:

Ms S McKie of Counsel Mr R Leiper of Counsel Miss A Proops of Counsel

JUDGMENT

The unanimous Judgment of the Tribunal is that:

The claim of direct sex discrimination and direct age discrimination and victimisation fail and are

RESERVED JUDGMENT

London Central

Al Date and place of signing

THE EMPLOYMENT TRIBUNALS

Claimant

BETWEEN

Respondent Miss R Corscadden

AND Credit Agricole Cheuvreaux Credit Agricole Cheuvreaux International Ltd) & Others

Date of Hearing: 26 February 2009

2, 3, 4, 5 & 6 March

9, 10, 11, 12 & 13 March 2009

In Chambers on 18 & 19 March 2009

REASONS OF THE EMPLOYMENT TRIBUNAL

The claims before the Tribunal are ones of direct age and sex discrimination and also harassment under both the Sex Discrimination Act 1975 and the Employment Equality (Age) Regulations 2006.

The Tribunal heard evidence for the Claimant from the Claimant herself, her sister Ms F L Corscadden; a statement from Mr Chris Husmann was read by the Tribunal, the Respondents did not wish to cross examine Mr

For the Respondents, evidence was given by Mr J Lees, Mr J Carp, Mr P Duchesnes, Ms P Ranunkel, Mr I Peacock, Mr L Blanquet, Mr M W McClean, Ms J Murphy, Mr J A statement from Ms Sarah Port was read by Tribunal and given such weight as was appropriate bearing in mind that Ms Port did not attend (as was proposed by video link) to be cross examined, she has left the first Respondent and is in America.

The Tribunal had before it five bundles of documents. Volume A running to some 383 pages contained the pleadings and then four other volumes containing in excess of 1,674 pages. Many documents were introduced during the course of the hearing especially by the Respondents. The Tribunal benefited from the help of an agreed cast list and chronology.

The issues which were as follows:

Whether the Claimant had been discriminated against under the Sex Discrimination Act 1975 in respect of her bonus entitlement as follows:-

To what extent has the Claimant been paid a lower bonus than Mr Ford, Mr Mcclean, Mr P Le Prince, Mr T Randall, Mr Hawgood and/or a hypothetical comparator. This relates to the 2005, 2006 and 2007 bonus (not the 2004 )

Was this difference on the ground of the Claimant's sex or on the ground of her refusal to submit to unwanted conduct from Mr

To the extent that the Claimant makes a claim in relation to a bonus payment prior to that for 2007, does any less favourable treatment on the ground of sex form part of an act of unlawful sex discrimination extending over a

Age based claims in relation to Pay including bonuses were not pursued by the Claimant than those claims are therefore dismissed on

Did Mr Lees and/or Mr Carp and/or Mr Duchesnes (and through them the First Respondent) subject the Claimant to unlawful direct sex and/or age discrimination by doing the following on the grounds of Claimant's sex and/or age:

On a business trip to the Netherlands in January 2005, did Mr Lees tell the Claimant that he wanted to make love to her and that he would help the Claimant with her business if they "had great sex" whenever they had to travel for work, and that she would become very successful and earn great money if she agreed to this?

Did Mr Lees advise the Claimant in April 2005 that her becoming a salesperson on the buy side would not be detrimental to her, financially or otherwise and did he thereby mislead her?

Did Mr Less make further comments in the course of 2005 and 2006 by making many inappropriate sexual comments about the Claimant's appearance, figure and/or her legs. When on numerous occasions Mr Lees said to the Claimant that it was "inevitable" that they would "end up in bed together'' and inappropriate comments about the Claimant after she had lost a lot of Mr Lees said that the Claimant would "get saggy tits" or that her "arse didn't fit her trousers" and that he made these comments both in and outside the office, making the Claimant feel extremely uncomfortable. Further, that Mr Lees did not take the Claimant's complaints (seriously) that she was being excluded and sidelined from the team, saying that the Claimant was paranoid because of her age and that women over a certain age developed a "fertile imagination" and further stating that if the Claimant attempted to escalate her concerns, it would only exacerbate her perceived exclusion from the team. The Claimant alleges that Mr Lees was deliberately isolating her and encouraging the team to follow his lead because she continued to rebuff his advances. Further or in the alternative he was discriminating against her because of her sex and/or age.

Did Mr Lees make further inappropriate comments at the Hedge Fund awards dinner on 23 November 2006 when he stated that all women at the dinner were "old and desperate" and that they should have an age barrier for the women they allowed in, and
- further that Mr Lees often referred to his "formula" which is supposed to calculate how old (or young) your partner should be. The Claimant alleges that it was said that in the Claimant's case, the man would be in his late 60's. It was also alleged that at the dinner, Mr Lees would make comments about her age, such as asking when she would give up work and stating that "ambitious women will do anything to get on".

Did Mr Lees at a meeting on 24 November 2006, with the Claimant and a journalist at Terminus tell the journalist that one of Mr Lees women in Mr Lees team was sleeping with clients and did Mr Lees state that at times he felt as if he was "running a brothel" and "a team of prostitutes"

Did Mr Lees attempt to sideline the Claimant by offering her a more junior and short term role in January 2007, namely the marketing role and did Mr Carp undermine the Claimant when he sent an e-mail to Mr Lees after the meeting when he outlined the Claimant's response, stating that the Claimant had declined the marketing role because the role was "not in the direction where she wants her "career (?) to go". The Claimant contending that the "?" after the word "career" shown in quotes, shows that she was not being supported or valued and that attempts were being made to manage her out of her existing role.

Was the Claimant ambushed at her performance review in January 2007 at a meeting which she was told was to discuss programme training. A meeting which transpired to be a full business review of her performance in which Messrs Lees and Carp set a number of additional and/or in the Claimant's view unachievable targets. The Claimant claims she was ambushed and wholly unprepared for such a meeting. Did Mr Carp and Mr Less fail to respond to the Claimant's request for clarification following this meeting.

Did Mr Lees tell the Claimant at a sales conference in Monaco in April 2007 that she had "fantastic tits". Failed to apologise and later in the same evening suggest that the Claimant spend the night with him, saying that he would "do unbelievable things" to her and that "it would be the best sex she ever had". Did Mr Lees call the Claimant on her mobile phone in the early hours of the morning at the Monaco Conference (this claim is direct sex discrimination).

At a pub in June 2007, did Mr Lees suggest that the Claimant could have water only if she let him "suck her nipples"? Did he keep repeating the remark? For the avoidance of doubt this claim is for direct sex discrimination

Did Mr Lees ask the Claimant at the AES Conference in January 2008, when they were going to "get together" and Mr Lees, stating that he still fancied the Claimant and that when the Claimant said they were not going to get together then Mr Lees stating that he was "fantastic in bed" and suggested that he had great staying power and sexual prowess.

U) Did Mr Lees state, in or around March 2008, to Jean-Claude Bassien that he would not increase the Claimant's bonus but instead distribute it to the other people in the team. Did Mr Carp and Mr Duchesnes fail to intervene in order to ensure the Claimant was not singled out for poor treatment.

Did Mr Carp and Mr Duchesnes fail to provide the claimant with relevant and precise information in order to address her grievance as to the calculation of her most recent Such response that was received was unsatisfactory, vague and lacking in transparency.

Did Mr Lees make the suggestion that he and the Claimant meet together without Mr Duchesnes on 17 March 2008.

Was the conduct of a meeting on 19 March 2008 (by Mr Lees, Mr Carp and Mr Duchesnes) intimidating and aggressive towards the Claimant and were her concerns belittled in the course of the meeting, as set out in paragraph 62 of the Details of Claim?

Did Mr Lees misrepresent the nature of the meeting of 19 March in an e-mail dated 20 March?

Did Mr Lees bully and intimidate the Claimant on 26 March in seeking to arrange a meeting with her on that day? Did he fail to supply her with documents she requested to assist her in the meeting and did he on the same day refer to the Claimant's allegations in front of others in the

Did Mr Lees attempt to isolate and marginalise the Claimant as from March 2008, including by failing to keep confidential matters about which she complained?

Did Mr Duchesnes, in April 2008, fail to provide the Claimant with relevant, accurate and precise information regarding bonus calculations?

Did Mr Lees tell Mr Bassien and/or Mr Duchesnes, in April 2008, that he could no longer work with the Claimant?

Did Mr Duchesnes tell the Claimant without warning, at a meeting on 8 April, that she had three options open to her, as set out in paragraph 95 of the Details of Claim?

Did Mr Duchesnes, at the meeting on 8 April, promise the Claimant he would address with Mr Bassien, the low level of her bonus and the fact that her colleagues were not speaking to her? Did he fail to do so? did this failure to continue up to the date of issuing of the ET1.

Did Mr Duchesnes place inappropriate pressure on the Claimant, on 9 April 2008, to respond to the three options he had given her at the meeting the day before?

Did Mr Duchesnes mischaracterise the three options in an e-mail to the Claimant on 1O April 2008?

Was the Claimant ostracised and isolated by her colleagues, including Mr Lees, as from March 2008?

Have Mr Lees, Mr Carp and/or Mr Duchesnes failed to manage her complaints

Have some of the Claimant's customer accounts been allocated to others (as per paragraphs 82 and 92 of the Details of Claim)?

Victimisation

The victimisation allegations are set out in the response to the request for further and better information and are at 64 through to 73 of Bundle

14 March 2008: conversation with Mr Carp, oral: The Claimant said, in response to Mr Carp's announcement of her bonus for 2007, that she felt she had been treated differently and/or discriminated against both in terms of her base salary and her bonus since both were significantly lower than the rest of the team. The Claimant further expressed a concern that she had been consistently excluded from both business and social events, that she had reached the stage where she had given up trying to do anything about it because whenever she raised it was either always denied, or she was fobbed off with some bizarre reason. (For example, when she

expressed this concern to Mr Lees his response was on several occasions that she was imagining it and/or that it was the paranoia of women of a certain age. Mr Lees also said that Kate Pritchard did not like to have other women in the team because she liked to be the only female, thus suggesting that women compete and do not work well together). The Claimant said that she found it very difficult at times to be so excluded but that she was trying to simply get on with her work. She added that she could no longer continue to ignore the discrimination because it had become apparent that it was impacting on her financially as well as emotionally. Therefore the Claimant asked for a meeting with Mr Lees and Mr Duchesnes to discuss her concerns and explained that she wanted Mr Duchesnes present because she had had enough of the way she had been treated by Mr Lees and that at any time she tried to raise an issue with him he was instantly dismissive. Mr Carp said he would discuss this with Mr Duchesnes (S4(1)(c) and (d) of the Sex Discrimination Act 1975 ("SDA"), Reg4(1)(c) and (d) of the Employment Equality (Age) Regulations 2006 (the "Age Regs" and S47B(1)of the Employment Rights Act 1996 (ERA)).

17 March 2008 to Mr Lees and Mr Duchesnes in writing. The Claimant sent an e-mail invitation on 17 March 2008 to schedule the meeting referred to above to discuss her concerns about her different treatment and/or discrimination (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S478(1) ERA).

19 March 2008: meeting with Mr Lees, Mr Carp and Mr Duchesnes, oral. The Claimant began by asking them to explain their justification of her bonus. She added that she had explained her concerns to Mr Carp previously so he stated briefly that she was unhappy about her bonus and salary and that she did not feel it was in line with others in the team, or reflected the complexities and specific issues of the work she did, the lack of product, or how hard show worked. Since he omitted to refer specifically to discrimination or lack of fair and equal treatment (even though the Claimant had previously expressed those concerns to him in the meeting on 14 March 2008) she added that she had been systematically undermined, discriminated and treated unfairly for much of her time with Cheuvreux. When the Claimant asked those present to advise how her bonus had been calculated Mr Lees said there was no formula and Mr Duchesnes said that there was and that it was applied equally to everyone. When she asked what the formula was they refused to give any further details, criticised her for having raised her concerns and said the Claimant had not been discriminated against (despite that fact that they had not at that time given the Claimant an opportunity to state what her concerns or issues were) and stopped the meeting (S4(1)(c) and (d) SDA, Reg4(1)( c) and (d) of the Age Regs and S478(1) ERA).

25 March 2008: e-mail to Mr Lees and Mr Duchesnes at 10.57. (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S478(1) ERA).

26 March 2008, conversation with Mr Lees, oral. The Claimant said that she felt pressurised by Mr Lee's insistence (in front of everyone else in the office) for her to have a meeting with him and Mr Duchesnes later that day, to discuss her concerns (as set out in the e-mail referred to under (iv) above) and that she needed time to consider her (S4(1)(c) and (d) SDA, Reg4(1)(c and (d) of the Age Regs) and S478(1) ERA).

26 March 2008, e-mail to Mr Lees, Mr Duchesnes and Mr Carp at 33. (S4(1)(c) and
SDA, Reg4(1)(c) and (d) of the Age Regs and S478(1) ERA).

On or around 26 March 2008: conversation with Ms Ranunkel, The Claimant told Ms Ranunkel, when asked, that her discussions with Mr Duchesnes and Mr Lees regarding her bonus were not going well and they were making it very difficult for her to work in these circumstances. She then told Ms Ranunkel that she had been sexually harassed. (S4(1)(c) and

(d) SDA, Reg4(1)(c) and (d) SDA and the Age Regs and S478(1) ERA).

28 March 2008.: e-mail to Mr Duchesnes at 17.08. (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) SDA and the Age Regs and S47B(1) ERA)

1April 2008: conversation with Ms Ranunkel. oral. The Claimant said she felt Mr Duchesnes had been protecting Mr Lees. She further said that Mr Duchesnes was not open to anything she had to say, that it seemed quite clear that he had made his mind up to support Mr Lees and was not even listening to her. She also said that she did not feel that Mr Duchesnes was taking any of the issues she raised seriously, particularly the sexual harassment by Mr Lees. Ms Ranunkel said to the Claimant that she would not raise a sexual harassment complaint if she were the claimant. Ms Ranunkel further asked the Claimant how old she was and informed the Claimant that she would find it very difficult to get a new job. (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S47B(1) ERA).

1 April 2008: conversation with Mr Duchesnes. oral. The Claimant mentioned Dawnay Day and that she had been managing this account for over 3 years and when it started to make money it was taken away. She further said that Colin Thomas (CEO of Dawnay Day) had told the Claimant that he had been often pressurised by Jerry Lees, Kate Pritchard and Malcolm Ford for Miss Pritchard (who is a personal friend of his and younger than the Claimant) to take over the account and have the Claimant taken off it.

In response to a question from Mr Duchesnes as to why she had not raised the issue of sexual harassment before the Claimant said that to raise such an issue is very difficult for many reasons. She referred to what she had told Jon Carp on 14 March 2008, that the reason she wanted a meeting with Mr Duchesnes was that previously any time she tried to raise any issue with Mr Lees he was instantly dismissive. She added that raising such an issue against such a powerful senior person made her concerned that the company would back him regardless. When Mr Duchesnes suggested, in response, that the Claimant had raised the issue of sexual harassment to increase her bonus she was shocked and objected strongly. She told him that she had witnesses to two of the incidents when Mr Lees had subjected her to sexual harassment and asked why she would have any reason to do such a thing when her business was doing so well, as he himself had stated. (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S47B(1) ERA).

3 April 2008. e-mail to Mr Duchesnes at 33. (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S47B(1) ERA).

On or around 3 April 2008: conversation with Mr oral. The Claimant said, in response to his accusation that she was trying to blackmail the company into giving her a better bonus, that she was finding the whole experience of expressing her concerns very stressful. She also told him that she was very unhappy and concerned about confidentiality (S4(1)(c) and

(d) SDA, Reg4(1)(c) and (d) of the Age Regs and S47B(1) ERA).

4 April 2008: meeting with Mr Duchesnes. The Claimant stated that nobody had ever told her before that because she was on the buy-side of the team her bonus was being calculated differently to those on the sell-side and said that this was contrary to the assurance she had been given by Mr Lees that being on the buy-side would not impact her financially and that she would never have accepted a role on the buy-side in 2005 if she had known of the different calculation method or negative impact it would have on her remuneration. She further stated that her role on the buy-side was, if anything, more complicated and that buy-side sales take significantly longer to sell and to implement subsequently. The Claimant said that she thought that the different bonus formulas were unfair and discriminatory.

The Claimant also referred to Mr Duchesnes' e-mail of the 3 April 2008 and the list of clients it included. She explained that accounts that she had worked on were missing and that there were no figures of any relevance so that she could not even tell if there were errors in any of the calculations. She again raised the issue of Dawnay Day and that she disagreed that this

account had been given to Miss Pritchard. She asked him whether they intended to do this with all her accounts - as soon as the revenues start to increase they would take it away from her.

The Claimant then said that she had a great 2007; that this was acknowledged in her appraisal; that she had brought in accounts that no one expected her to bring in (some of the most prestigious names in the City); that she had heard that record bonuses had been given to the others in her team so that she was shocked when she received hers.

The Claimant said that she believed her low bonus was a result of her rejecting Mr Lees's sexual advances and that her low salary and bonus (comparative to Kate and Malcolm who were paid a lot more) were a continuance of the undermining, undervaluing and discrimination that she had been subjected to for over three years. She said she knew that Jean-Claude Bassien had specifically asked Mr Lees to give her a higher bonus and that he had not only declined the request, but also had openly told everyone on the ski-trip that he had done so. She said that she did not feel comfortable discussing the specifics of the sexual harassment with him but that it had been continuous going back over a long time and that she had witnesses to two of the incidents. She also expressed her concern that she wanted the company to ensure that she would not be subjected to any further sexual harassment, that she wanted to be treated fairly and equally and about the team excluding and isolating her and that this too had to stop. (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S478(1) ERA).

8 April meeting with Mr Duchesnes. oral. This meeting was in two parts. In the first meeting the Claimant explained that she had issues with the calculation of the bonus formula, and her bonus as such, because of Mr Lees' assurance in 2005 that her transition to the buy-side would not affect her remuneration negatively and that any fair commission/bonus scheme should allow all members of the team to have an equal opportunity to achieve the same earnings but that with this scheme there was no way she could ever be paid the same as her colleagues.

In response to a question from Mr Duchesnes (asked when she was at her desk) whether Mr Lees had arranged to have a meeting with her, to which she said no, Mr Duchesnes said he wanted her to site down with Mr Lees and work things out. When she asked if he expected her to discuss the sexual harassment matter with Mr Lees he said yes and she said she would not be comfortable with this at all.

She further told Mr Duchesnes that she was still unhappy about the bonus situation since Mr Lees when asking her to do the buy-side role in 2005 had specifically told her that there would be no detriment to her taking the role and that they had discussed her bonus in particular. She explained the effect the different bonus formulas would have on her earnings i.e. her earning

€36,000 to Kate and Malcolm earning €180,000 for the same figure and that she had been underpaid for year.

The Claimant also complained that Sarah Port's accounts, which paid the higher bonus level based on what she had been told about the difference between the buy and the sell side, had been distributed after she left to Miss Pritchard, Mr Ford and Mr Carp when she had worked with Miss Port on many of these, yet not even one account had been given to her. She added that apart from a few exceptions all leads generated into Cheuvreux London were always given to the same three people and that this had been the case for much of her time with Cheuvreux.

The Claimant reiterated the issue that one of the sell-side accounts (Dawnay Day Capital Markets) that she had originally signed up had been given to Kate Pritchard and that this was unfair and/or discriminatory. She also expressed concern that if this account had been re-allocated, the same thing might happen to other sell-side accounts, e.g. Rabobank, once it started to produce big revenues. She further expressed a concern regarding another Dawnay Day account in respect of which others may have been paid, when she had signed them up and managed them. Lastly, the Claimant rejected Mr Duchesnes' proposed explanation of the

differences in pay and bonus that it was more difficult to get a new sell-side account than to sell to an existing buy-side client as set out in paragraph 94 of the ET1. she further said that leads from the sales/traders etc were few and far between, and whilst she got on well with the sales traders, they were very concerned that AES products (and therefore the Claimant) were taking their commissions and eventually their jobs away from them. (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S47B(1) ERA).

8 April 2008, meeting with Mr Duchesnes. In a second meeting on 8 April 2008, the Claimant told Mr Duchesnes that he had broken her confidentiality by speaking to Mr Lees about the sexual harassment. She added she was shocked that he would expect her to sit in a meeting with Mr Lees to openly discuss his sexual harassment of her.

At the end of the meeting, she asked Mr Duchesnes to go over the three options he had given her again, which he did. She then asked why she should resign if she had not done anything wrong. She also objected to Mr Duchesnes's suggestion that he should hear the grievance. (S4(1}(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S47B(1) ERA).

9 April 2008, conversation with Mr Duchesnes. oral. The Claimant in response to pressure from Mr Duchesnes (as set out in paragraph 99 of the ET1) told him again that she as a result was feeling stressed and pressurised and that she needed more time to respond to the three options he had given her during their meeting the previous day. (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S47B(1} ERA).

10 April 2008, e-mail to Mr Duchesnes at 27. (S4(1)(c) and (d) SDA, Reg4(1)(c) and

(d) of the Age Regs and S47B(1) ERA).

18 April written grievance to Mr Bassien (S4(1)(c) and (d) SDA, Reg4(1)(c) and

(d) of the Age Regs and S47B(1) ERA).

30 April and 6 may 2008. meetings with Victoria Lewis of Byrne Dean Associates, For the gist of what was said see paragraphs 104 to 106 of the ET1 and the interview notes as well as the Claimant's comments on these notes and her e-mails in response (dated 23 May 2008 and 28 May 2008) and the complaints she made to Pierre Janus on 9 May 2008 (see below).

9 May 2008. formal written complaint to Pierre Janus (s4(1)(c) and (d) SDA, s4(1)(c) and

(d) of the Age Regs and S47B(1) ERA)

14Julye-mailtoPatrickDuchesnes at11.39. The Claimant complained about the abusive comments made by one of her colleagues, Fahri Khadri, on the same day (see further paragraph 108 of the ET1). (S4(1)(c) and (d) SDA, Reg4(1)(c) and (d) of the Age Regs and S47B(1) ERA).

By reference to those has the Claimant made one or more protected acts falling in within Section 4 of the Sex Discrimination Act 1975 and/or Regulation 4 of the Employment Equality (Age) Regulations 2006?

If so. has the Claimant been subjected to a detriment by reason of that disclosure?

What is the last act of discrimination alleged and established against Mr Lees by the Claimant? Is the claim against Mr Lees liable to be struck out on the

basis that the claimant does not complain of any act within the period of three months preceding the filing of her claim or is it just and equitable to extend such time?"

The above issues were agreed by the parties as the issues in the case and were set (subject to agreed variations) out in the order made following a Case Management Discussion on 29 October 2008.

The facts found are as follows:-

The Respondent is a European equity broker providing research services, advice and Execution Services to a range of institutional clients.
Brokers can buy and sell shares either through a traditional trader where communication is either oral or in writing or clients can deal electronically where an order is sent to the market without the intervention of a trader (Alternative Execution Services). There are a variety of services Direct Market Access and CFD's. The Respondent's charges for trading electronically are less than those charged where trades are dealt with traditionally. Prior to joining the Respondent the Claimant had worked for some 28 years in financial services, 8 of those years selling electronic trading connectivity.
Before joining the Respondent the Claimant had worked at Liberty's (now Reuters) with Mr Mr Lees had left in 1998. The Claimant was made redundant from Reuters in 2002 and after being out of work for some 18 months in January 2004 joined Heliograph as a Senior Sales Executive a post she did not enjoy or find interesting. The Claimant then approached Mr Lees for a position with the First Respondent and the Claimant joined the First Respondent on 8 July 2004 (passing her FSA exam in September 2004). A copy of the Claimant's contract of employment is at page 65. The Claimant was not offered a guaranteed bonus for the first year as it was not the First Respondent's practice to award signing on bonuses during the first year of employment unless employees had joined from a competitor.
The Claimant was employed as a Sales person within the AES
The Claimant was employed in the London
Mr Lees was the Global Head of AES and the Senior Line Manager to whom the Claimant was ultimately responsible from January 2005 to April 2005 and from January 2007 to the date of the Tribunal the Claimant reported to Mr J Carp Head of AES EU and from April 2005 to 2006 the Claimant reported jointly to Mr Lees and Ms Ranunkle (Head of Sales Trading).
Mr Carp conducted the Claimant's annual appraisals save for the 2005 appraisal in early 2006 which was done by Mr

It was Mr Lees who was principally responsible for making recommendations to the Remuneration Committee in respect of salary and bonus for the team members and for managing the team.
The Claimant's colleagues on London AE desk were Mr Lees, Mr Carp from January 2005, Ms Pritchard and Mr Ford, Ms Port joined in November 2005 leaving in July/August 2007 and a Mr McClean joined in April 2007 they worked in the London office there are also AES sales persons in Paris, Frankfurt and the United Mr Le Prince and Mr Hawgood were based in Paris.
When the Claimant joined in July 2004 she was responsible for selling to non Cheuvreux clients predominately 'sell-side' clients. Sell-side clients generally undertake their own research on companies and provide recommendations on the purchase or sale of stock. The Claimant's role in selling to the sell-side (brokers) involves contacting prospects directly. Connecting a new "sales-side" client was relatively straightforward and the timescale was a few
In April 2005 the First Respondent decided to launch a new business opportunity selling AES products/services to its own existing research clients ('buy-side') clients. Buy-side clients are institutional clients and comprise pension funds, hedge funds, asset managers and the like so selling to buy-side clients involved selling to the First Respondent's existing clients. The lead in time to secure a client's commitment sometimes took up to say 9 months there were commercial, legal and compliance requirements to be met it was not always easy to ensure that the clients were connected to the electronic system speedily there were many hiccups and many issues prevented the client from 'going live'. In addition traditional traders were loath to 'lose' their clients to electronic trading as this would reduce their earning capacity for the Respondent.
Mr Duchesnes was the Chief Operating Officer and Chief Executive of the First Respondent's London office which he joined in At the date of the hearing there were approximately 60 people employed although over the years in the London office the First Respondent had sometimes employed 90. Mr Duchesnes was responsible amongst other things for controlling the business relationship with the Financial Services Authorities for making sure the business of the company ran smoothly. Mr Duchesnes was involved in all major staffing issues in the London office.
The First Respondent has not provided any substantive equality or diversity training for its managers in the London office. There was no monitoring of equality issues in place. The First Respondent did not have a London based Human Resources Department. The Claimant gave evidence that within six months of commencing her employment at Cheuvreaux i.e. in January 2005 Mr Lee's began an 'on-going campaign of sexually harassing me' and the Claimant states that she began at her sister Georgina's recommendation to keep records of what she considered to be the most serious examples of harassment by Mr In her statement she records that the contemporaneous notes are only a record of the key examples of numerous inappropriate sexualised comments that Mr Lees has made to me during my employment alleging that Mr Lees behaviour is part of a sexualised culture at work including sexual banter at the AE desk and the circulation of inappropriate e-mails by senior members of management including Mr Lees and Mr Carp.

The Claimant was born on 3 August 1957 and the ages of the team are set out at N161 Mr Lees was 65, Mr Duchesnes 58, Ms Ranunkle 48, Mr Carp 44. In September 2008 a Mr Freeman then aged 48 was recruited by Mr Lees to join the
On 27 and 28 January 2005 the Claimant went on a business trip to Amsterdam with Mr Lees. The Claimant's evidence is that on the evening of 27 January the Claimant and Mr Lees stopped at a bar on the way back to the hotel after having had dinner together. The Claimant's recollection was that she had not been drinking because she was at that time recovering from hospitalisation with suspected viral meningitis and that Mr Lees was not well
The Claimant alleges that Mr Lees told her that he had always found her attractive and that he wanted to make love to her, that he was not looking for a one night stand but that he would help the Claimant with her business if they had 'great sex' when they travelled on Mr Lees, alleges the Claimant, said that she would become very successful and earn great money if she agreed to this.
Mr Lees recollection of the evening is different, he records that after dinner at an Indian restaurant both and he and the Claimant returned to the hotel where he and the Claimant had a drink in the bar. Mr Lees having a beer and the Claimant a gin and tonic (an expenses chit produced confirmed on Mr Lees bill payment for a beer and a G and T).
Mr Lees recollection was that he and the Claimant did have a discussion over dinner concerning the Claimant's private life and they discussed her continuing relationship with Mr Doerr.
Mr Doerr had been a former employee of the First Respondent and who had left the company at the end of 2004 and that notwithstanding assurances given by the Claimant at the time the Claimant was recruited it appeared that her relationship with Mr Doerr was not over and the relationship was on-going. During conversation over dinner the Claimant had according to Mr Lees confirmed that her relationship with Mr Doerr had definitively ended and Mr Lees records the Claimant making a remark to the effect that this had 'left a slot' that needed to be filled the Claimant denies making such a In January 2005 Mr Lees had commenced a new relationship with a woman who has since become his fiancee.
The restaurant bill had included a beer and a bottle of
The Claimant recorded in a handwritten note (co�y at page 835) the events of the 27 January on 28th Her note reads "On Thursday 27 Jerry asked me to sleep with him - not a one night stand - but an affair. He said he would travel with me on business and help me so I would become very successful and earn lots of money. I have told him no but he still asked to sleep with me again at the hotel and told me to think about it."

The Claimant's evidence was that she felt intimated by Mr Lees's conduct was particularly frightened when they returned to the hotel as there was no concierge at the

hotel. The Claimant said that Mr Lees conduct made her at the time feel humiliated, angry, scared, intimidated, threatened. The day after on 28 January 2005 Mr Lees and the Claimant continued on their business trip no reference was made between them to the events of the previous evening and they carried on as normal.

Whilst at Liberty's/Reuters the Claimant had set up from scratch a department which sold Liberty's Alternative Execution The Claimant had known Mr Lees for some 7 or 8 years before joining the First Respondent and prior to the issues that have arisen in this case there had never been a suggestion that Mr Lees had behaved in an unacceptable way towards the Claimant. We remind ourselves it was the Claimant who approached Mr Lees to see if she could work with/for him.
The Claimant went on further business trips asking Mr Lees to go with her in February and March 2006 and December 2007. It was the Claimant who invited Mr Lees she could have asked Mr Carp or Ms Ranunkle. The fact that they had not travelled together for about a year was not because the Claimant did not want to travel with Mr Lees but because no appropriate trip
During early 2006 on a subsequent visit to Amsterdam the Claimant was accompanied by Mr Lees. The Claimant's sister who also worked in the world of finance was visiting Amsterdam at the same time and the Claimant invited her sister to join them for dinner.
In evidence the Claimant stated that she had suggested that her sister stay with her in the same hotel but her sister did not take up that suggestion 'as her company did not use the same hotel as the First Respondent's did'. The Claimant had suggested that the reason she asked her sister to stay in the same hotel was because the Claimant had felt so intimidated and threatened on the previous trip with Mr Lees to Amsterdam on the subsequent visit she wished the added protection of her sister staying in the same hotel with her.
The Tribunal believe that if two sisters were both in Amsterdam together on business then it would be perfectly normal to meet up for dinner especially as the Claimant's sister worked in the world of finance and also knew Mr Lees and if possible to stay in the same hotel.
If the Claimant had been fearful about her safety and if the Claimant's sister had been aware of this as was suggested and had been asked to stay in the same hotel as the Claimant to protect the Claimant from sexual advances of a predator we feel confident that the Claimant's sister would have stayed in the same hotel even if she had to do so at her own expense.
In March 2005 the Claimant is awarded a bonus for the year ended December 2004 in the sum of €20,000 (the Claimant only worked for a small part of 2004) Mr Lees had in fact recommended a bonus of €30,000 and it was the remuneration committee in Paris which had reduced it to €20,000.
The First Respondent had been lagging behind its competitors in the development of its Alternative Execution Services and the development and promotion of those services thus became strategically important for the First The

AES system enables orders to the market to be placed electronically without the need for any person to person interaction. The AES trading was the way forward within the industry although there was resistance to it from the dealers and the brokers who traded traditionally for fear that they may lose commission and their revenue stream be reduced.

It was proposed by Mr Lees that the Claimant and Andrew Hawgood (whose wish it was to move to Paris) took up new positions on the 'buy-side' selling the First Respondent's AES products as of April The Claimant transferred into her new role on 19 April 2005 Mr Hawgood transferring to his role in Paris in July 2005.
The move was reported in a memo to all staff from Francois Simon on 20 April 2005 (12) where at paragraph 4 of the memo it is recorded 'the question of commission allocation and bonus will be addressed; - staff were instructed not to be negative about the changes and the new electronic trading system. The First Respondent had anticipated some reluctance and resistance to change from its traditional trading Alternative Execution Services would attract clients away from using the traditional services. Mr Lees and the Claimant discussed this but Mr Lees reassured the Claimant of the First Respondent's commitment to using AES.
Prior to the Claimant's move to the buy-side she and Mr Lees discussed their concerns about delays to the sales cycle on the 'buy-side', and that it was taking longer than on the 'sales-side' to have clients connected and that it necessitated contact with the IT department for systems and activity in Paris where the Claimant had experienced difficulties.
During the discussions it was mentioned that working on the 'buy-side' the Claimant would be dealing with existing clients of the First Respondent whereas when on the 'sales-side' the Claimant had had to source new clients for the Respondent. The Claimant had been offered employment because of her contacts that she made working at Liberty's/Reuters and because of the skills that she had acquired as she had been responsible for starting the electronic order routing business at Liberty's.
It was because of the Claimant's skill in selling the electronic routing system and her tenacity and meticulousness combined with the fact that the Claimant had not been as successful as the Respondents had hoped in signing up new clients on the sell-side that the move to the buy-side was proposed. As we have said the development and promotion of the AES side was important to the First Respondent to keep pace within its competitors who had a head start.
On transfer from the sell-side to the buy-side the Claimant's basic salary remained the same and during their discussions Mr Lees acknowledged that whilst the Claimant's opportunity to earn commission on the buy-side might initially be limited, this would be taken into account when assessing her future bonuses. It was made clear that it was important to develop the buy-side AES services and suggested that eventually the Claimant may even earn more on the buy-side.

Mr Lees evidence was that the Claimant was assured that she would not earn any less by moving over to the 'buy-side' provided that she performed well in the new

The fact was the Claimant's remuneration did increase slightly she did not earn less than she had earned previously but the increase was not according to the Claimant as much as she would have expected to have earned had she remained on the sell-side.

There is no dispute that the Claimant worked hard to overcome the difficulties she encountered in her new role. The Claimant faced resistance from some staff to change and also long lead in times before systems became The opportunity on the buy-side for the Claimant to earn was no less than the opportunity to earn on the sell side.

When the Claimant transferred across the First Respondent had not decided how to calculate the amount available from buy-side transactions which would go into the bonus pool.

The Claimant believes that had she had remained in the sell-side of the business then she would have generated an increase in revenue which would have matched her colleagues Sarah Pritchard and Michael Ford based on the projection of her first calendar year's That belief was not supported by the evidence.
The Claimant had in fact been assigned existing clients by Mr Lees when she joined the buy-side. Ms Pritchard and Mr Ford remained on the buy-side. Mr Hawgood received a "bonus" of €29,500 to cover his transfer to Paris that was in July 2005.
The Claimant alleges that throughout the course of 2005/2006 'Mr Lees continued to sexually harass me' he frequently told me that it was 'inevitable that we would sleep together and repeatedly made inappropriate sexual comments about my appearance, my figure, and my legs. For example I lost a lot of weight in 2005 following ill-health earlier in the year and having had an appendix operation in October 2005 Mr Lees commented that I will get 'saggy tits' and told me 'your arse doesn't fit your trousers' Mr Lees would, says the Claimant make these comments both inside and outside of the office. Mr Lees denies making such remarks further there was no other evidence from other employees within what was a small team sitting close together in an open plan office to corroborate these Further these matters were not referred to in the Claimant's grievance of 18 April 2008.
The Claimant complained that on one occasion when taking a form to Mr Lees to sign he suggested the Claimant "came and sat on his knee;" and that Mr Lees would make inappropriate and unwanted comments about the Claimant's age. The Claimant told the Tribunal that from time to time members of the team would disappear together for lunches or drinks and whilst they would ask other colleagues to join them they would not ask the Claimant to accompany them and as a consequence she felt excluded. The Claimant says that when she mentioned this to Mr Lees he responded that she was 'paranoid because of her age and that women of a certain age developed a fertile ' This event although denied by Mr Lees if it did occur took place in 2005 before the coming into force of the age regulations. Mr Lees does accept that there was a conversation between him and the Claimant about the Claimant's interaction with the rest of the team when she complained that others were isolating

her and not supporting her. Mr Lees was supportive of the Claimant and it is significant that she turned to Mr Lees for support in this respect.

The Claimant told the Tribunal that she was strengthened in her belief that her concerns about her unfavourable treatment were well-founded as during disclosure for this case the Claimant discovered an e-mail exchange between one of her female colleagues Kay Pritchard and Mr Lees following the Claimant's move into an apartment which was in the same block of apartments to which the Claimant's ex-partner Mr Doerr had previously moved. Mr Lees in the e-mail exchange responds to Ms Pritchard 'weird, weird.... Stalker!!!' (see pages 140-144) and the Claimant refers to a further e-mail exchange between Mr Lees and Ms Pritchard dated 24 August 2005

(154) the e-mail subject is "curry" Mr Lees asked Ms Pritchard 'should we invite Ross'. Of course we do not know the context in which this e-mail was sent and we were not able to say that this is an example of the Claimant not being automatically included in the team.

The Claimant's sister confirmed that the Claimant 'was out-raged by Mr Lees conduct, notwithstanding the Claimant, a person acknowledged to be a diligent and meticulous person, and despite having started to make notes of the unacceptable conduct in January 2005 the Claimant made no notes of any of the remarks she alleges were made subsequently to January 2005 nor of the alleged acts of 'continued sexual harassment' and it was only under cross-examination and not even in the Claimant's witness statement when the Claimant made reference to Mr Lees referring to her 'long legs' and him asking the Claimant to put her legs around him. Those allegations were not put to Mr Lees during cross-examination.
Not only did the Claimant not make a note and record 'these continuous acts of sexual harassment' neither did she consider it was appropriate to raise those matters with management by way of a grievance as 'she felt it seems pointless as there had been so many events'. This comment is not Why we ask if there were so many events did this make it pointless to refer them to management. One would have thought the opposite would be the case and the fact of no notes being kept is not consistent with the claim that the Claimant was outraged by Mr Lees conduct, that her sister had told her to make notes and the Claimant's own character being a meticulous person.

The Claimant's sister told the Tribunal that the Claimant had confided in her about the comments made - the Claimant's sister did not make a note of the comments to record In her evidence the Claimant's sister also alleged that the Claimant had complained to her that Mr Lees had continued to proposition her. It was clear from the Claimant's sister's witness statement that her witness statement had been prepared by the Claimant's sister referring to the Claimant's particulars of claim rather than from the sister's own recollection or records made by the sister.
On 28 June 2005 a friend of the Claimant Ms Heidi Huttley who had met up with the Claimant wrote to Mr Lees confirming amongst other things that she had been in touch with the Claimant who 'sounds a lot happier with life especially back working for you' (145) this e-mail was written by a third party, unsolicited by Mr Lees and was concerning other matters. Ms Huttley would be unlikely to write in such terms if the Claimant had complained to her about her treatment in the That note was

written at the time that the Claimant alleges she was 'continually sexually harassed by Mr Lees'.

The Claimant was away from work around October 2005 and during the period of time that the Claimant was absent from work she spoke regularly on the phone with Mr On 12 December 2005 the Claimant forwarded on to Mr Lees an e-mail (page 166) which contains jokes with sexual innuendo 'well hung male' the Claimant's explanation for sending such an e-mail onto Mr Lees was that she wished to maintain a normal working relationship.

In July 2006 (page 224) the Claimant forwarded to Mr Lees a copy of the Claimant's daughter's wedding photographs. The Claimant explained that because Mr Lees e-mail address was on the Claimant's personal e-mail address book the system automatically sent a copy of her daughter's wedding photographs to Mr Lees and she had not specifically intended to send Mr Lees a copy. We find that explanation not to be credible.

Later in 2006 at the end of October beginning of November Mr Lees invites the Claimant to come to his for a house warming party and drinks. The Claimant responds by thanking Mr Lees for the invitation saying that she had something else planned that she would really have loved to have joined Mr Lees and goes on to suggest that they meet up and go for dinner on some future date and it ends by saying 'just ask when it suits you guy's'.

The Claimant explained that she had intended bringing her new boyfriend to that dinner date in the hope that might deter Mr Lees from his continued harassment.
What is clear is that the AES team worked closely together in an open plan office a team of 10 facing each other at two banks of five desks. We feel sure that the Claimant would have let her colleagues know including Mr Lees if she was in 'new relationship' and of course she had known Mr Lees for many years and we have no doubt that if the Claimant wanted Mr Lees to know that she had a new boyfriend then she would have only been too keen to tell him.

In June 2007 at e-mail at page 440 from the Claimant to Mr Lees acknowledges an invitation to have a coffee. The Claimant responds 'so getting out for a coffee will be good' this was for a meeting to discuss office matters and could easily have been dealt with in the office there was no necessity to go out, the Claimant was not hesitant about going out for a coffee with Mr Lees.
The Claimant makes two specific allegations of unacceptable conduct on the part of Mr Lees towards the Claimant during 2006. The first relates to the Hedge Fund dinner award ceremony on 23 November 2006. The Claimant complains that at the dinner when the Claimant arrived with her female colleague Sarah Port and joined Mr Lees, Mr Lees commented that he was glad that they had arrived as all the women at the dinner were 'old and desperate and that there should be an age barrier for women that were allowed in'. When asked by the Claimant why he had made that remark the Claimant said that Mr Lees commented "present company excepted of course". Mr Lees denies making the remark although the Tribunal did not hear from Ms Port it considered her written statement and Ms Port did not recall the remark being

made. The Claimant accepts that the remark if made was not addressed to her. The Hedge Fund Dinner was an event that was attended by many glamorous young women in their thirties.

During the dinner and on other occasions the Claimant complains that Mr Lees would make reference to his 'formula' - used to calculate the age of a man's or woman's ideal Mr Lees accepts that he would refer to this formula from time to time; it was used by Ian Fleming in a James Bond book/movie and whilst Mr Lees accepts that he may have made reference to the formula during the dinner denies making any reference to the Claimant or saying that in her case her ideal partner would be in his sixties. The Claimant claims that Mr Lees did make such a remark and that she was offended by it.
The Claimant also alleged in evidence although it was not raised in her grievance of 18 April 2008 that Mr Lees commented that 'ambitious women will do anything to get on'. This remark the Claimant says, suggested to her that women were not recognised on merit The Claimant argues that such a remark is consistent with an environment in which 'the boss has affairs with young women employees'. We were not told the context of the alleged remark and the Claimant did not explain why it was that she inferred that such a remark meant having an affair with the boss. Mr Lees denied making such a remark. The Claimant said she found such remarks undermining and chauvinistic especially as the Claimant had achieved her position through hard work.
The day after the Hedge Fund Dinner on 24 November 2006 Mr Lees had made an arrangement to meet up with a Mr Lucas an advertising sales executive/journalist with the Financial Times. They had agreed to meet for breakfast at a restaurant - Terminus - Mr Lees was running late so he contacted the Claimant by phone and asked the Claimant to meet Mr Lucas at the restaurant and explain that Mr Lees would join them later. The Claimant met with the journalist and she says that when Mr Lees joined them at the restaurant he suggested by implication to the journalist that one of the women he'd been out with the night before was sleeping with clients and that Mr Lees commented that he sometimes felt that he was 'running a brothel' and 'a team of prostitutes'.
Mr Lees denies making such comments and points out that he has been trained as to how to speak with the press and would not have made such comments in all the
Mr Lucas the journalist who gave evidence at the Tribunal did not recall such comments although he was able to recall other subjects talked about and what they ate for The Claimant says that she made it clear that she was not the person the comments were about. Mr Lees whilst denying that he made the remarks he is accused of having made, says that he may well have referred to brokers as 'the whores of the industry' this apparently is a frequently used expression. Mr Lucas did not remember Mr Lees saying that the comment that it was used so frequently that he would not have recalled it in any event.
The Claimant records the incident (page 836-837) and her notes record 'Mr Lees started talking about the behaviour of one of the staff members he had been at

the dinner with the night before.' In her note the Claimant refers to the initials of the individual and the note records 'he does not know what (she the member of staff) does to get business but at times he thinks he is running a brothel and a team of prostitutes. The comment referred to another staff member not the Claimant.

On 15 January 2007 the Claimant had a meeting with Mr Carp following discussions that Mr Carp had had with Mr Messrs Lees and Carp had decided to invite the Claimant to consider the position of a marketing manager for the First Respondent. Mr Lees considered that the First Respondent had been spending substantial sums of money on marketing with little impact and felt that the monies could be spent more wisely to achieve better results.
In an e-mail at page 272/271 for Mr Lees to the Claimant Mr Lees sets out what the First Respondent expected from its 'marketing'. The position of marketing manager was offered to the The Claimant responded that she was not interested in that role as she saw it as a more junior role and not where she wished her career to go.
The Claimant informed Mr Carp by e-mail on 18 January and he informed Mr Lees by e-mail of the Claimant's The e-mail read 'not interested in marketing role sees it as a more junior role - and not in the direction where she wants her career to go she started asking if it means her current role doesn't exist any more - can see where that was going - but if it did who would do it. Reassured her all was cool' Mr Lees response was 'F..k!!'
The Claimant saw this e-mail in a hard copy left by a printer, there was no evidence that the Claimant had accessed Mr Lees or Mr Carp's computer to obtain them. This e-mail does show that the Respondents had concerns about the Claimant's position in the workplace at that
One of the Respondents stated reasons for offering the Claimant the marketing manager was because complaints had been received by Mr Lees from in particular the IT staff in Paris and also from a client about the Claimant's perceived abrasiveness. The Claimant however suggested that Mr Lees was wanting to move her out of the AES sales team so that he could employ a younger woman, Renata De Angelis, on the 'buy-side'. Ms De Angelis was in fact recruited by Mr Carp and was recruited specifically to deal with Italian and Swiss Ms Angelis had a following of clients from those countries that she had promised to bring with her to the First Respondent from her then present employer.
Other reasons were put forward for the suggested move ranging from the Claimant's health and her sick record: the fact that the Claimant's position in the company was under scrutiny in France and that the Claimant's position was vulnerable yet the Respondents accept that at that time the 'buy-side' client flow income was increasing and was encouraging.
The marketing manager role was eventually filled by someone from Paris where the role was based.
The Claimant suggests that this proposed move to the position of marketing manager was made on the grounds of her age and/or for her failure to submit to Mr

Lees advances and part of an attempt by Mr Lees to reduce the Claimant's salary. The Respondents did not pressurise the Claimant at all when she indicated that she was not interested in taking on the marketing managers role that was the end of it.

In early January 2007 the Claimant had been in touch with Mr Khadri to ensure that clients income streams were properly recorded against the Claimant's name when she had been involved and these matters were discussed when the Claimant met with Mr Lees and Carp at a meeting on 26 January a meeting held to discuss how the Claimant might be more productive in terms of performance going forward in her role on AES 'buy-side'.
Following the meeting the Claimant on 29 January sent an e-mail (p280/281) to Mr Lees setting out her understanding of what had been agreed. In her e-mail the Claimant raised her concerns that she had not been previously advised that the meeting on 26 January 2007 was going to be a business review meeting and the Claimant complained that the Respondents request that she produced a list of top 10 key revenue prospects in a spreadsheet of revenue streams was adding an additional burden to her already heavy workload.
An e-mail in response drafted but never sent by Mr Carp is at (page 282).

The Claimant had been complaining the revenue she was generating was not being allocated against her name and also that there were problems when successfully finalising a sale to AES 'buy-side' clients to ensure that the support team could have the clients on line and going live within a reasonable The delay was frustrating for the client and this added to the difficulties to make sales on the buy-side combined with the fact that the traditional traders were reluctant to embrace electronic trading.

As previously stated the First Respondent had received complaints from the support staff in Paris about the Claimant's attitude towards them. The Claimant had become annoyed and frustrated by the apparent inability of the support staff to ensure that systems wishing had sold to AES 'buy-side' clients be made live.
The e-mail at (page 299) dated 2 February 2007 from Mr Lees to Mr Anconca illustrates there were concerns about the Claimant but Mr Lees did not wish to discuss them at his desk which would have been in front of the Claimant and her colleagues. The meeting of 26 January had been an attempt by Mr Lees and Mr Carp to find out from the Claimant the exact position regarding the Claimant's work and the problems she was experiencing so as to be able to support her and to assist her in finding a sensible solution and a way forward. It was not a meeting to undermine her.
The Claimant's 2006 appraisal was conducted by Mr Carp on 15 February 2007 copy of the appraisal is at page 4. Mr Carp scored the Claimant with a '2' meaning a good performance (meets expectations across most areas of performance). It was recorded in the appraisal that on the occasions the Claimant's tenaciousness and persistence could often alienate her from work The Claimant's comments on her appraisal we see at page 7; the Claimant highlights the resistance which she has been experiencing from traditional brokers on her attempts to persuade to clients to trade electronically. Something that the First Respondent was aware of and in fact had anticipated.

During the Monaco sales conference in April 2007 at an event hosted by the First Respondent at a night club the Claimant was invited over to join Mr Lees and Mr Peacock at a table near to the Mr Lees in the opinion of the Claimant had been drinking heavily and commented to the Claimant when she joined them at the table 'you've got fantastic tits' Mr Lees denies making such a remark but accepts that he may have commented on the Claimant's cleavage the Claimant was not wearing a low cut dress at the time. The Claimant was surprised by the remark particularly as it was made in the front of Mr Peacock (Mr Lees equivalent in New York) and according to the Claimant Mr Peacock invited the Claimant to sit down and offered to order the Claimant a drink apologising for the remark. The Claimant declined and walked away.

The Claimant made a note about this incident with a copy at (page 839) where the notes records that "Jerry was OTT last night" and goes on to say that Ian told him to stop and that later Jerry asked me to come to his room to sleep with him. During the investigation process whilst Mr Peacock said that he could not recall such a comment being made he did say that it was one which he could imagine was the sort of comment which Mr Lees would make. There are other references where referring to this incident at page 833 a typed note the Claimant said that Mr Lees referred to 'a great pair of tits' and in her interview during the investigation page 1038 referred to a "fantastic pair of tits". The Claimant confirmed to the Tribunal that it she was 100% certain that Mr Lees made the remark that she had 'a fantastic pair of tits'.

Later that same evening whilst at the night club the Claimant alleges that Mr Lees asked the Claimant to go to his room and sleep with him saying that he would do 'unbelievable things to her and that it would be the best thing she had ever had'. The Claimant made a note of this incident at page 839 the note does not record these words being used.
Mr Lees denies making such remarks. Ms Port with whom it was rumoured that Mr Lees had had an affair with was also present at the event.
The Claimant let the night club in the early hours of the morning and returned to her Sometime later at about 4.45am the Claimant was phoned by Mr Lees on her mobile, a call which she did not take. Mr Lees did make a call to the Claimant on her mobile at about 4.45am and he states that the reason that he made that call and a number of other calls at about the same time, supported by his itemised bill, was that he was phoning the Claimant and other members of the First Respondent's staff who had been at the event as he was 'rounding up the troops to return everyone back to the hotel'.
The Claimant accepted in the Tribunal having heard what Mr Lees said and having seen Mr Lees mobile phone itemised bill that there may well have been an innocent explanation to Mr Lees phoning the Claimant in the early Linking it with the conduct which she says that he displayed the previous evening the Claimant still felt it unlikely, particularly bearing in mind she says that Mr Lees knew that she had returned early to her hotel.

At the Monaco conference in April 2007 as part of a team building exercise the attendees had to split into two teams choosing a name for the team and act out an

advertising scenario. The team would then be filmed by an independent 'film' company. The employees were provided with a selection of costumes from which they could choose. The Claimant selected a bunny girl outfit she was in the team called 'Borats Bitches', it is unclear whether there was a choice of outfits by the time the Claimant came to select hers the evidence from the Claimant is that the bunny girl outfit was all that was left whilst Ms Ranunkle and Mr McClean suggests that there were other costumes which the Claimant could have selected. Regardless of this the Claimant took part in the event and we see in the bundle a photograph of her wearing the bunny girl outfit posing for a photograph and appearing to be quite relaxed about it and enjoying the experience.

On 1 June 2007 the Claimant, Mr Lees and Mr McClean are in the office at 'close of play' Mr McClean and Mr Lees are going for a drink; they ask the Claimant whether she wishes to join The Claimant was presently finishing off some work and confirmed that she would join them later.
The Claimant's evidence then varies slightly as to precisely how events unfold. On the one hand she says that she telephoned Mr Lees on his mobile to inform him when she was about to leave the office to join them and that in response to his question as to what she was drinking she replied, water, to which the Claimant recalls Mr Lees responded 'you can only have water if you let me suck your nipples'. When the Claimant then arrived at the bar Mr Lees again asked her what she wanted to which she again replied water Mr Lees repeating his earlier comment and the Claimant responding 'oh well I will have a gin and tonic then'.
In a different record made by the Claimant of the event she alleges that she phoned to say that she was on her way and it was only when she arrived at the bar that she was asked by Mr Lees what she wanted and when she replied 'water' that he made the comment 'you can only have water if you let me suck your nipples'.
The Claimant made a contemporaneous note at page 839 regarding this incident made the Claimant says when she got home that The note reads 'went for a drink with Jerry and Matt at the Globe. Jerry was getting the drinks and when I asked for water he said 'only if you let me suck your nipples'. I said 'I would have a g and t instead but he continued asking to suck my nipples even Matt seemed lost for words'. In a typed note, copy at page 833 relating to the same incident typed within a matter of weeks reads 'JL invited Matt and I to have a drink about 17.15. Matt and Jerry went before me. I called to say I was on my way. JL asked what I would like to drink - I said I'd have water. He said I could only have a water if I let him suck my nipples. I told him I would have a gin and tonic instead. When I arrived (at the Globe) Jerry was buying my drink and kept saying that 'he would like to suck my tits' he said this in front of Matt.
The two accounts are not consistent in the handwritten note Mr Lees first makes the offensive comment when the Claimant has arrived at the pub and asked for water whereas in the typed note he is first recorded as having made the comment on the telephone. The Claimant says the typed note was made without reference to the manuscript note yet in the Claimant's in-mail to Ms Lewis (832) she claims that the electronic notes were made after a decision to 'collate all of my handwritten notes into a typed google mail At p958 the Claimant explains the inconsistency of the

notes as follows 'I wrote my original note based on what happened in front of Matt. When I came to create the electronic copy I added in the comment that JL had made over the phone which not for one minute did I expect him to repeat, or I would never have gone for a drink.'

In the particulars of claim at paragraph 46 and also at paragraph 67 of the Claimant's witness statement the Claimant contends that the comment was first made when she arrived at the bar.
Mr Lees denies making such a comments to the Claimant and Mr Mcclean who gave evidence at the Tribunal says that he has no recollection of such a comment being made and told the Tribunal that he would have remembered 'such an outrageous remark' had it have been made. The remark the Claimant says was said not only once but at least two or three times and that it was after the first remark that she ordered a 'gin and tonic' 'to make light of the remark' and to as it were 'laugh it off.

Mr Lees during the grievance investigation denied making the remarking it was suggested that he 'sometimes orders a slippery nipple' and suggests that perhaps the Claimant misheard him although he does not say that he did order such a cocktail on that night.
The Claimant during the Tribunal proceedings alleged although not contained in her witness statement, that Mr McClean could well lie on oath and the Claimant informed the Tribunal that during the investigation of her grievance process Ms Lewis the investigator had told the Claimant that Mr McClean had specifically stated that he would not speak out against Mr Lees because he was new and a junior in the First Respondents organisation. That comment was not referred to in the Claimant's written statement, it is not recorded in Ms Lewis's investigation record, it was not set out and recorded in the Claimant's criticism of the investigation process.

At the Tribunal Mr McClean gave evidence and insisted that if he witnessed unfavourable and unlawful discriminatory conduct then he would make a stand about it and would not lie regardless of whether the conduct was that of his boss.
Residential AES conference - on the weekend of 20 January 2008 the First Respondent held a residential conference at a hotel in Hertfordshire for its AES employees. The Claimant alleges that on the Sunday morning the Claimant and Mr Lees were in the foyer during the morning break and Mr Lees approached the Claimant and mentioned that everyone thought that they were having an affair. The Claimant says that Mr Lees then went on to say that he still fancied her and asked when they were going to 'get it together' the Claimant reminded Mr Lees that they were never going to get it together and said that it was not true that people thought that they were together.
The Claimant then goes on in her evidence to complain that Mr Lees told her that 'he was fantastic in bed' and that he had great staying power and sexual prowess. The Claimant says that she responded by reminding Mr Lees that it was never going to happen and walked away she says feeling angry and humiliated. The Claimant made notes of this incident at page 838. In that note the Claimant records Mr Lees as saying that 'he's great in bed and can last really long'. Whilst during the investigation the

Claimant said that Mr Lees said that he could 'sustain an erection for a long time' this expression was not referred to in the handwritten note or in the Claimant's witness statement or in oral evidence to the Tribunal and the allegation was not put to Mr Lees at the Tribunal. The notes as recorded by the Claimant and the account given to the investigator Victoria Lewis differ.

The Claimant suggested that Mr Lees conduct was that of an arrogant man who likes to shock and embarrass others.
Mr Lees recollection was that the Claimant and he did meet up but not mid morning and it was after the conference had ended at about mid-day and that they were in the foyer where there were two queues for checking out and that was when a conversation between Mr Lees and the
Mr Lees concedes that he mentioned to the Claimant that others had suggested that two of them were having an affair but he denies making the remarks attributed to
The conference ended about lunch time on the Sunday and the Claimant accepted Mr Lees invitation to go with Mr Lees for a drive in his new Aston Martin, this occurred on the Claimant's evidence shortly after the alleged conversation in the The Claimant explaining why she had gone for a drive with Mr Lees after being subjected to such comments by saying 'I thought perhaps naively that he was trying to make up for his earlier behaviour and so reluctantly agreed'. During the drive the Claimant and Mr Lees engaged in small talk.
The Claimant's explanation for going for the car drive is inconsistent with her expressed view that she had felt intimidated and humiliated by Mr Lees continuous sexual harassment over the preceding three years.
The Claimant in her evidence claimed that Ms Murphy another of the First Respondents employees had told the Claimant and Mr Blanquet (a colleague of the Claimant) that Mr Lees had 'come on' to her (Ms Murphy) during the conference the Claimant alleged that Mr Blanquet had on seeing female staff with Mr Lees during the conference commented 'it must be bonus time'. Both Ms Murphy and Mr Blanquet came to the Tribunal and gave

Ms Murphy denied that Mr Lees had ever 'come on' to her and denied too that she had said that he

Mr Blanquet gave evidence to the Tribunal denying that he had ever made the remark attributable to him.
There where says the Claimant rumours circulating at the conference that Mr Lees had spent the Friday night with a female Mr Lees denied that he had done so and explained that in fact his girlfriend had spent Friday night at the hotel and left on Saturday morning (the conference was only strictly for staff and not for partners).

There were inconsistencies between the Claimant's oral evidence to the Tribunal, her notes and what the Claimant told the

It appears that it was the Claimant who was creating the rumour that Mr Lees had spent the night with a female member of
During a meeting at head office in Paris on 31 May 2007 Mr Bassien raised the fact that he had heard that the Claimant had insufficient product knowledge of the electronic trading business and products. Mr Lees fully supported the Claimant arguing that it was highly unlikely that the Claimant was lacking in knowledge of DNA
At the meeting on 31 May 2007 (minutes at pages 1299-1301) after Mr Bassien raises his concerns about the Claimant the minutes go on to record Mr Lees response which is a robust support of the Claimant. Mr Lees stating that the Claimant was tenacious, did not lack knowledge of DNA connectivity but could possibly upset colleagues by her attitude.
The Claimant's appraisal for 2007 was signed off by Mr Carp copy at page 8 and is dated 25 February The Claimant was again given a box '2' marking - good performance.
The Claimant alleges that by January 2008 the sexual comments had increased in frequency yet the Claimant stating that she did not complain because she feared to lose her job; explaining that she reacted in the way in which she did in an attempt to maintain a normal working relationship between her and Mr Lees and also to ensure that she was accepted and remained a part of the team. The Claimant gave no examples of any such comments which she found
Pausing at this stage we do believe that banter and exchanges of a sexual nature did take place in the office environment and in which the Claimant participated. There was a reference to a discussion amongst the team about 'probes and vibrators' although there was no suggestion that the Claimant prompted the discussion she was an active participant in the
We find that in the office environment e-mails were exchanged some of which had sexual connotations, the Claimant did not complain and in fact one e-mail which had annexed pictures of a large woman entitled "hunt the man" was not even disclosed in the proceeding initially but only raised by the Claimant to show that the First Respondent's IT system did not have a filter to block out 'flesh coloured' images.
In May 2005 the Claimant herself sent an e-mail to a client referring to her car as a 'pulling machine' - 'especially with two blondes in it' and of course there was the e-mail forwarded on to Mr Lees in November 2005 referring to the 'well hung male'.
The Claimant in her evidence suggested that senior managers would send e-mails with a sexual content although none were produced and the Claimant could not give any examples of such offensive e-mails which she alleges were The Claimant never raised any objection to any e-mail material received by her.

The Claimant first raises her concerns about her perceived unfavourable treatment with Ms Ranunkle during a taxi ride at the end of March 2008 the Claimant did not give any details or name any individuals the Claimant claiming that she was being sexually harassed at During that conversation Ms Ranunkle cautioned the Claimant to be sure of her facts before she raised any complaint and advised the Claimant that any complaint should be raised with Mr Duchesnes.
Ms Ranunkle asked the Claimant if the Claimant wanted to sit with a different team namely the sales traders rather than the AES
At a meeting on 14 March 2008 the Claimant was told by Mr Carp that her bonus for 2007 would be €140,000. The Claimant was disappointed at the size of the bonus. The Claimant told Mr Carp that she felt that others in the team were treated better than her in that she does not get free leads and that she did not have a true product until some time in 2007. The Claimant mistakenly believed that some colleagues received bonuses of nearly €1m.
Mr Carp explained that he did not know the precise basis of the calculation of the bonus neither individually or for the team but knew that net revenue and costs were taken into account.
About half an hour after that meeting on 14 March 2008 Mr Carp was able to confirm an increase in the Claimant's basic salary from £95,000 to £110,000 per
The Claimant complained to Mr Carp about her bonus. Mr Lees was away at the time Mr Lees e-mail on 14 March says 'I don't want Ross talking to Patrick until I'm back - make sure she realises, I will be really pissed off if she talked to Patrick before Monday' in response Mr Carp responds 'OK - ... Patrick is not back till Wednesday'.
The Claimant believed that her bonus had been affected by her age and that as she had been subjected to sexual harassment by Mr Lees that had affected his recommendation relating to her The Claimant was not satisfied responding that it was entirely reasonable for her to ask for details of Mr Lees proposals and the factors he considered in making the proposal and the Claimant confirmed that she would set out her discrimination concerns in writing and requested an independent woman be appointed to investigate as she did not feel comfortable discussing some of the personal and embarrassing details of Mr Lees harassment of her with his close male colleagues (page 654). On 25 March 2008, in an e-mail from the Claimant to Mr Lees and copied to Mr Duchesnes under the subject matter "re meeting", the Claimant complains that she was distressed at the way the meeting on Wednesday had gone. In her e-mail she reiterated that the purpose of requesting the meeting was because she believed the bonus she received was unfair and she then goes on to say:

"Had the meeting progressed as I had expected I would have had the opportunity to explain that I believe I have been discriminated against on grounds of age and gender. Also I believe that I have been sexually harassed and I consider the adverse treatment of me is connected with that. I know you will find this hard to accept but you have to treat me with enough respect to understand I do not suggest this lightly. The way forward has to ensure that I

am not at risk of any further discrimination and as regards my bonus, I am looking for you to reconsider this."

This e-mail followed two meetings on 14 and 19 March respectively. That is the final occasion the Claimant states that she has been discriminated against on the grounds of gender and age (a protected act).

The Claimant had discussions with Mr Duchesnes on 1 and 3 April 2008 claiming that the Claimant felt the whole process to be difficult and stressful and that she was concerned as colleagues in the office appeared to be aware of what was going on.

On 3 April in an e-mail the Claimant confirmed her commitment to the Respondent and pointed out that she wanted to resolve her concerns amicably and again repeated her request for the information she asked for any other relevant materials that were considered in relation to how her bonus had been calculated the Claimant had been promised a list of accounts that had been taken into consideration in calculating the bonus Mr Duchesnes responded on 3 April setting out a list of the clients serviced by the Claimant and those to which he had made a contribution but did not provide information about the proposals made by Mr Lees or the factors taken into account in making the proposal.
There was a further meeting with Mr Duchesnes on 4 April the Claimant made notes of the meeting (870-873) on return to her desk. At the meeting on 4 April the Claimant explained to Mr Duchesnes that she saw her treatment as being directly linked to Mr Lees harassment of her or at least the fact that she had not submitted to his advances.
Two further meetings occurred in April. On 8 April 2008 see notes at (862 and 865) during those meetings Mr Duchesnes confirmed that he had discussed the allegations with Mr Lees as it had been surmised that the allegations and harassment were against Mr Lees.
The Claimant's recollections of those meetings is that Mr Duchesnes had said that even if Mr Lees accepted that harassment had taken place and apologised and agreed not to continue harassing the Claimant Mr Duchesnes could not guarantee that it would not happen That he (Mr Duchesnes) knew what Mr Lees was like; that Mr Lees contributed much to the business; Mr Duchesnes went on to suggest that perhaps the Claimant had lined up another job.
Mr Duchesnes acknowledged that he was aware that the rest of the team were not speaking to the Claimant and that there had been much Mr Duchesnes said that he had spoken with Mr Le Prince and that their appeared to be three options to have an open discussion with him (Mr Duchesnes) and Mr Lees in which the Claimant raised all her issues and concerns after which they drew a line and moved on, or to raise a formal grievance which Mr Duchesnes could investigate as 'Mr Lees would find it difficult to speak to a female investigator or alternatively that two less senior female employees could investigate the grievance' Mr Duchesnes pointing out that if the Claimant did this the relationship between her and Mr Lees would be irreparably damaged or the alternative would be to leave.

At the same meeting Mr Duchesnes had confirmed to the Claimant that her clients had generated more commission in the first quarter of 2008 than for the whole of 2007 and this would ultimately reflect on her 2008 bonus.

The Claimant was upset at the end of this meeting and not sure of the best way of proceeding Mr Duchesnes on 9 April verbally asked the Claimant for her proposals the Claimant e-mailed Mr Duchesnes a summary of the discussions (page 661).

Mr Duchesnes response later the same day is at page 663 through to 664 and it is worthwhile setting out that response in full

Dear Ross

"I look forward to receiving your grievance. This will be investigated in accordance with the Company's procedures. I have been urging you to provide details of your allegations in respect of the alleged discrimination and harassment for some lime if that is what you wanted to do. Once they are sent to me the Company can undertake an investigation in accordance with its procedures.

I met with you informally on Friday last week and Monday and Tuesday this week. Your interpretation of our discussions is not the same as mine and I think it is important for me to set out the broad nature of our conversations as I understood them.

On Friday we discussed the level of your bonus and I explained how it was calculated. My impression was that you accepted the information I had provided you with. You did not provide any details about your allegations of discrimination and harassment.

Al the end of the meeting on Friday I said that it was now important to address the issue of your relationship with Jerry. You have regular1y mentioned that you want to deal with matters in an informal way. I offered to arrange a meeting between you and Jerry (with me present if necessary) in order to talk matters over. I also said it was your choice how to proceed but if you had allegations of discrimination and harassment you must provide the details (whether informally or formally is a decision for you to make). I proposed to speak to Jerry in order to check if he was happy to take part in an informal meeting with you. You said you would also consider having a meeting over the weekend.

On Monday we spoke again. I told you that Jerry was ready to meet with you for a discussion but he wanted me to be present. You stated that you wanted to consider matters further. Again I made it clear that you were free to lodge a grievance or sit down with Jerry and discuss. However, it was not an option to do nothing given the allegations you have made about discrimination and harassment. In my view, I was doing my best to provide you with options about how to deal with these issues in the way you felt most appropriate.

We spoke again on Tuesday and you said that you were still thinking about the meeting with Jerry. I said that you must decide what you intend to do in relation to the allegations of discrimination and harassment.

I did not tell you had three options in the way you describe. I did not tell you not to raise a grievance (in fact I urged you to do so if this is what you thought best). I did not tell

you to resign or mention it as an option from the Company's point of view. During our meetings I told you that the Company did not want to lose people like you who do a good job.

The Company's Equal Opportunities policy makes it clear that your complaint should be sent to me in the first instance. An appropriate investigation will then take place, in accordance with the procedure. The procedure states that the Company will endeavour to have such an investigation carried out by (in your case) a female. I have never suggested that I would carry out the investigation. If you have any suggestions as to an appropriate person to investigate then let me know. However, the Company will appoint the person it considers most appropriate in the circumstances.

There is no need for you to reply to this email unless you wish to do so. I agree that matters should be dealt with under the formal procedures and the Company does not want to cause you stress.

I look forward to receiving your grievance, hopefully by the end of Monday. Regards

Patrick"

The Claimant eventually submitted her written reasons to Mr Bassien on 18 April 2008 her grievance is at 668 and following with appendices referred to (pages 695-711) the Claimant's grievance was acknowledged on 24 April Mr Pierre James Cheuvreaux Head of International Development was appointed to hear the grievance but Byrne Dean a firm of external consultants would investigate the grievance and would be contact with the The Byrne Dean employee assigned to undertake the investigation was Victoria Lewis. Ms Lewis was appointed as an independent investigator and not a decision maker, she was a fact finder conducting an investigation in an independent and objective way.

The Claimant was unhappy with Ms Lewis' investigation the Claimant considering that it was deficient in many respects. The Claimant set out in her statement at paragraph 262 of the witness statement the alleged flaws in the investigation grievance procedure gives details at paragraphs 264 and 265 of her statement. The Claimant became concerned about the confidentiality of the investigation process and the Claimant complains that often other staff will be discussing her grievance in the office.
The effects of unfavourable treatment which the Claimant alleges have occurred since raising her allegation of age and sex discrimination and which she believes is a direct consequence of having raised such allegations are the three alternatives put to the Claimant at the meeting on 8 April 2008 with Mr Duchesnes for which of course Mr Duchesnes denies is the case; that on 22 April 2008 the Claimant had not been invited to the Hilton bar in Paris where others were meeting for a drink that happened again the following day and that the Claimant was not offered a place at an awards dinner when non sales colleagues were; that the Claimant was not given a VIP pass to a VIP party at a club hosted by several brokers of which the First Respondent was one; that having raised her complaints the atmosphere in the office turned very sour; that Mr Lees barely spoke to her; that Mr Lees repeatedly breached confidentiality by informing her colleagues of her grievance and discussing her and his response to the Claimant's

allegations with them. The rest of the AES team increasingly isolating and ignoring the Claimant and whispering behind her back; Mr Lees who sat opposite the Claimant giving her intimidating and aggressive looks on numerous occasions after concerns had been raised. Not being included in client events such as Ascot in June 2008, a polo event May 2008, a Cartier polo event July 2008, the fact that the Claimant had not been informed that one of her client's had been invited to attend a party in New York and an aggressive phone call from Mr Khadri on 14 July 2008. When the Claimant expressed the view that other brokers were not expressing the same set-up problems as the First Respondent experienced and that Mr Khadri suggested the Claimant should resign and that her client with whom she had previously had a good relationship Mr Thomas of Downay Day Brokers had stopped calling her. Of course Downay Day Brokers was the client that had been partly re-allocated to Kate Pritchard back in 2007 because Mr Thomas had raised concerns about the Claimant's conduct.

The First Respondents bonus scheme is a discretionary bonus scheme (see contract of employment page 65, para E).
There is no specific mathematical formula to base the calculation of a bonus entitlement of any employee.
Mr Duchesnes in his e-mail of 27 March 2008 (page 684) explained the Respondents process for the calculation of the awards of bonus. Mr Lees further explained in his witness statement beginning at (page 27) 'the way the Respondent assesses and calculates bonus entitlement'.
There is a formula which applies to determine the bonus pool out of which bonus payments will be paid. The bonus pool is determined by the head office in

As the Respondents were entering into increased activity in the AES where commissions etc were reduced compared to traditional trading even in head office were initially having to evaluate the percentage of commission that should be assigned to the bonus pool. Mr Lees was not involved in that process. It was for Mr Lees to submit the net AES revenue figures to Paris each year and these were then used by the Directors when fixing the bonus pool. The bonus pool had to cover management support staff and sales and hence the bonus could never be 18% of net sales less
As far as the traditional 'buy-side' research business is concerned the bonus pool is set at approximately 20% of the gross commission less facilitation costs and rebate. This pool has to take account of the salary costs and is used to pay sales, research analysts, sales traders and In relation to the AES products for which Mr Lees was responsible the starting point is normally set at approximately 18% of the net commission after execution and settlement costs have been deducted.
Once the bonus pool for the relevant team has been fixed by the head office the process becomes discretionary in nature and it is left to the team manager for example Patricia Ranunkle and Mr Lees to make appropriate recommendations as to each individual's entitlement.

Mr Lees explained the typical process for agreeing bonuses for individual employees to be as follows 'the relevant section head (e.g. John Carp) will collate data which establishes how much revenue should be attributed to individual sales people; that section head will then discuss the headline revenue figures with the relevant head of sales; the head of sales will then make a recommendation to the Respondents remuneration committee based on his/her own analysis of individual performances the Remuneration Committee will then take a view on whether the recommendation should be approved.

The remuneration committee consists of Mr Pierre Janus, Mr Bassien and Mr Simon their recommendation goes to the Executive Committee and the final decision regarding each employee's bonus is taken by the Executive The Executive Committee's decision is conveyed to the Remuneration Committee who informs the team heads accordingly and the salary and bonus figure entitlements are then announced to employees.
Mr Lees explained that there was often a discussion and consultation between the Remuneration Committee and the head of sales as to what the final recommended staff bonus should be. From time to time there may be a disagreement between the Remuneration Committee and the relevant head of sales and explained Mr Lees that this happened in 2008 when Mr Bassien informed Mr Lees that he wished to increase the bonus for some members of his team and decrease it for others. In this instance reducing Mr Ford's bonus by some €35,000 and increasing the Claimant's by €25,000.
Mr Lees in this instance disagreed with the bonus allocation suggested by the Committee and Mr Lees raised his concerns with the committee. Mr Lees explained that it was his job to ensure that bonus allocations were equitable and fairly reflected actual as opposed to perceived performance and as Mr Lees worked closely with his small team he was the best to make that judgment.
Mr Lees set out his approach when deciding and making his recommendations for bonus as follows:
He would consider three pieces of information. The individual's performance appraisal and an analysis of the individual's revenues over the year and finally his assessment, (usually in consultation with the relevant line manager of the individual's overall performance, capabilities and development of client relationships).
Mr Lees would begin his assessment of the bonus calculation by considering actual revenue figures and would allocate the majority of bonus pool broadly in line with the revenue figures.
Once the initial exercise according to revenue performance alone has been concluded Mr Lees would then factor in other matters for consideration. This included reviewing the individual's latest appraisal, and non revenue based performance during the year and an assessment usually in consultation with the relevant line manager of the individual's capabilities and development potential for the forthcoming year.

To summarise the exercise has to reward strong performances and encourage people to develop their potential, but also to be firm about possessing weaknesses. Having completed that exercise the proposals are submitted to the Remuneration Committee and the consultation process would then begin.
Mr Lees explained that the process of putting together bonus recommendations was not and could not be a purely mathematical exercise. Particularly so on the buy-side of the business where due to the complex nature of the business a number of variables come into play and whilst the starting point was always the revenue which has been generated by an individual and that this obviously is an important indicator of performance; revenue alone is not a perfect barometer of the employee's performance over the past year.
The reasons why this is so includes in particular that (i) much of the business generated would have been derived from existing clients who may have approved the business in any event i.e. the business was not attributable to the efforts of the individual employee and (ii) business will often be brought in as a result of a number of individual employees providing high quality services to the client for example research services so it can be difficult to plot precisely where the responsibility for the business

Mr Lees explained that it was also necessary to be aware that sales people may artificially inflate their revenue figures so assessment of revenue generation is undertaken by reference to management observations of how a particular person performs on a day to day basis, these observations require the input of the relevant section head.

Other matters taken into account in making an assessment for bonus are how well that individual has worked throughout the year with the members of the team and support staff and in this respect comments made by the relevant manager during the appraisal process are noted.

The final recommendation for bonus was made based on the balancing of all the relevant considerations as explained and that whilst not based on a mathematical formula Mr Lees indicated that he strove to ensure that he arrived at a result which was rational and fair in all of the circumstances to each member of the Essentially it was for Mr Lees to recommend what was the appropriate bonus for the members of the AES team based on his subjective view.

The nature of the bonus calculations were explained to the Claimant in an e-mail of 27 March by Mr Duchesnes (page 648). The Claimant had been concerned about the amount of bonus she was going to receive early in 2008 and at (page 562) on 17 January 2008 the Claimant sent a tongue in cheek e-mail to colleagues suggesting that to receive a decent bonus award it was necessary to be French. Also for 2008 the Claimant understand, we know not how, that her colleagues were receiving bonuses of between €750,000 and €1m which was clearly not true and indeed far from the reality of the situation.

For the year ending December 2004 Mr Lees had recommended a figure of

€30,000 for bonus which had been reduced by Remuneration Committee to €20,000. Mr Lees made this recommendation in or around February/March 2005 shortly after the alleged Amsterdam incident in January 2005.

In the years ending 2005/2006 Ms Ranunkle was the Claimant's line manager so was principally responsible for the recommendations to the Remuneration Committee although Mr Lees did have some input and did top up the Claimant's bonus from his 'pool' the Claimant does not suggest that Ms Rununkle in any way treated her

The Claimant alleges that the Respondent did not take into account her full revenue stream and compares herself for example with Mr Mcclean who the Claimant says received an additional bonus, a signing on bonus which was to compensate him for the fact that he joined mid-year from an employer and so would lose part of a bonus entitlement that he would have achieved had he remained with his existing firm. This was not uncommon practice within the City environment when an employee is attracted from one employer to another. The Claimant did not receive such a signing on bonus when she joined the Respondents as she was at the time unemployed and of course did not receive such a signing on bonus at the time that Mr McClean did as her circumstances were different.

In the Claimant's evidence which was not supported by the documentation the Claimant suggested that the revenue streams of Mr Ford and Ms Pritchard were less in 2007 than in 2006. The reality is that was incorrect the net revenue for both had increased for Ms Pritchard by some €1.5m and for Mr Ford by some €3.1m.
The bonus awards for 2006 and 2005 were dealt with initially by Ms Ranunkle who made the proposal to the Remuneration Committee and in fact for the year 2006 Mr Lees suggests that a higher figure for bonus should be awarded to the Claimant than was actually awarded. Mr Lees confirmed this to Ms Rununkle in an e-mail of 14 March 2007 (page 309). Mr Lees had no involvement in the figure that was actually awarded by the Remuneration Committee and it was a figure less than Mr Lees had
The Claimant's 2005 bonus was proposed by Ms Rununkle. Ms Rununkle did seek Mr Lees involvement (memo page 190) and Mr Lees in a memo of 22 February 2006 to Mr Bassien confirmed that Mr Lees had agreed with Ms Rununkle on splitting the bonus with Ms Rununkle and suggested €85,000 for both the Claimant and Mr Hawgood which was contributed half from Mr Lees budget and half from Ms Rununkle. Mr Lees was involved at that time as the Claimant had spent part of the year in his team. The Claimant and Mr Hawgood who were both doing the same task were treated equally in the award of bonus.
The bonus considerations for 2005 see (pages 192-193) illustrate the hands-on involvement which Mr Bassien had in ultimately deciding on relevant
For the 2005 bonus the Claimant compared herself with Ms Pritchard but accepted at the Tribunal that by the end of 2004 it would have been clear that in the

case of Ms Pritchard that there would have been a substantial Incomes stream due to come on line during 2005 when Ms Pritchard's revenue reach €3.5m.

The Claimant suggests that her bonus for 2005 was less because she rejected Mr Lees advances as bonuses paid to Ms Pritchard and Ms Port were higher than they merited because they had submitted to Mr Lees advances. What was the evidence before the Tribunal that Mr Lees had had affairs with both Sarah Port and Kate Pritchard? There was absolutely no evidence whatsoever that Mr Lees had had such an affair with either Ms Port or Ms Pritchard nor indeed with anyone else.
The Claimant was basing her claim relying totally on speculation, rumour and gossip which appears may well have been generated by her. The best evidence that could be put forward was that the Claimant had observed that "Ms Port and Mr Lees used to 'argue like a married couple".
Apart from there being no evidence to substantiate that Mr Lees was in fact having affairs with either Ms Port or Ms Pritchard we look at whether or not there was evidence of less favourable treatment by reason of the Claimant's failure to submit to such advances had they occurred. There was no evidence that Ms Port or Ms Pritchard received higher bonuses than they merited based on the Respondents normal allocation of bonuses and there was absolutely no evidence that the Claimant had a smaller bonus by reason of the fact that she had not submitted to any advances and neither was there any evidence to support the fact that the transfer to the sell-side or the offer of the marketing manager's role was in any way connected with the client's age or gender.

On 12 March 2008 in an exchange concerning bonuses and bonus allocation Mr Lees wrote to Mr Bassien "just a few months back you were asking me to fire Rosemary and now you want me to overpay her''. Mr Bassien had suggested reducing Michael Ford's bonus by €25,000 and increasing the Claimant's by €25,000. The letter from Mr Bassien also suggested raising Mr Hawgood bonus by some €6,000. Mr Lees objected not only to the proposed amendment but also from Mr Hawgood indicating that Mr Hawgood had not generated the income expected and did not deserve to have any Mr Lees responds in terms 'I feel very strongly about the changes as you are now overriding my judgment on running the successful team at Cheuvreaux with people I work with every day with no explanation of why you choose to make the changes it is highly de-motivating to be honest.
On 13 March Mr Lees sent a message via his blackberry pointing out in 2006 both the Claimant and Mr Hawgood received €150,000 rather than €110,000 shown on the spreadsheet and that effectively they were given less bonus this year than last and suggested a rise to €170,000. Mr Lees was on holiday at the time.

The reference at (page 599) to the Claimant having €1m income was wrong. Mr Lees was on a skiing holiday? the mistake would have been obvious to Mr Bassien.
The evidence before the Tribunal is clear that over the whole period since the Claimant joined up until the present time Mr Lees had supported the Claimant for instance in June 2007 Mr Lees questioned why Mr Le Prince was visiting staff when the Claimant introduced that business to Cheuvreaux and had been building the

account for a couple of years (page 511) see an e-mail dated 26 November when Mr Lees supports the Claimant.

The Claimant had a number of meetings with Mr Lees, Mr Carp and Mr Duchesnes during the latter end of March and the beginning of April 2008 in informal attempts to resolve the Claimant's concerns regarding her The Claimant as we know raised the question that she had been subjected to discrimination on the grounds of age and gender and that she had been sexually harassed though she was reluctant to specify the details of those allegations and did not do so until she raised a grievance on 18 April 2008 where the matters were specified. During this period of just over 1 month after the announcement of the bonus and the Claimant indicating her dissatisfaction it was difficult to resolve matters on an informal basis as the Claimant was not prepared to identify precisely what her sex discrimination allegations were as she was holding them in reserve as it were and as it appeared keeping them as a threat to be used in the event there was no satisfactory resolution to her concerns about her bonus.
The Claimant's grievance was raised on 18 April 2008 and is at (page 668-678). The Claimant's grievance is set out under various headings namely background, examples of sexual harassment, examples of discrimination "lower base salary, bonuses are lower than those awarded to my colleagues, attempts to sideline me and exclude me and examples of victimisation and detriment" since she raised an informal grievance and under the heading 'conclusions' the Claimant writes 'the responses I have received to date do not adequately explain my low salary or bonus indeed from the very limited information I have been given it appears that I am being given no explanations rather an account of the criteria actually applied at the Whilst I was hopeful that my attempts to resolve issues that iniformally would be successful it now appears that this is not possible and I continue to believe that I have been discriminated against on the grounds of my agenda and/or my age. In terms of the discrimination on the grounds of my gender, I believe that I have been sexually harassed and I consider that the adverse treatment of me is concerned with that. I also believe that I have been seriously underpaid for a significant period of time and that the reason for this is likely to be my sex or age and/or the fact that I rebuffed Jerry's sexual advances. I believe that I have been victimised and subjected to detriment to raising the above concerns.'
The Claimant withdrew her allegation relating to being paid a lesser salary than others. Clearly that was not the Also it is significant that in that grievance she refers to the fact that she had been hopeful to have resolved matters informally and that those attempts would have been successful - the only matter the Claimant tried to resolve informally was the bonus - thus the Claimant's own words gives credence to the view that had the bonus question been settled to her satisfaction - that could have been it.
In an e-mail dated July 2008 (page 1142) concerning the recruitment of a more senior person to a sales role a person when appointed to whom the Claimant and Mr Hawgood would Mr Lees refers 'to the potential loss of Ross'. This remark was not surprising it was evidently clear to all of the Claimant's unhappiness at that time.

The Claimant's grievance was investigated by Victoria Lewis of Byrne Dean Associates Ltd Ms Lewis reported to Mr Janus who was the individual who made the final decision on the grievance Ms Lewis was appointed to carry out the fact finding exercise. The grievance The Claimant complained about Ms Lewis' handling of the grievance alleging that it was unfair.
The Claimant has been ill and off work since 20 October
All three counsel submitted detailed written submissions which are deemed to be incorporated into this decision in their
The Tribunal were referred to the case of Richmond Pharmalogy v Ms A Daliwell [2009] IRLR page 336.

The Law

Sex Discrimination Act 1975:

Direct and Indirect Discrimination against Women

In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a women if -

On the ground of her sex he treats her less favourably than he treats or would treat a man".

Section 4 - Discrimination by way of Victimisation:

"(1) A person ("the discriminator'') discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970 [or sections 62 to 65 of the Pensions Act 1995], or

given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act or the Equal Pay Act 1970 [or sections 62 to 65 Pensions Act 1995]."

Section 4A - Harassment, including Sexual Harassment:

"(1) For the purposes of this Act, a person subjects a woman to harassment if-

[he engages in unwanted conduct that is related to her sex or that of another person and] has the purpose of effect -

of violating her dignity, or

of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

He engages on any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect -

of violating her dignity, or

of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, of

on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b}, he treats her less favourably than he would treat her had she not rejected, or submitted to, the

Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of sub-section (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that "

Section 6 - Applicants and Employees:

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -

in the arrangement he makes for the purpose of determining who should be offered that employment, or

in the terms on which he offers her that employment, or

by refusing or deliberately omitting to offer her that

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

(a} in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment.

Employment Equality (Age) Regulations 2006:

"Regulation 3 - Discrimination on Grounds of Age

For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if -

on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or

A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different in the

Regulation 4 - Discrimination by Way of Victimisation

For the purposes of these Regulations, a person ("A") discriminates against another person (''B") if he treats B less favourably than he treats or would treat other persons in the same circumstances, and does so by Reason that B has -

brought proceedings against A or any other person under or by virtue of these Regulations:-

otherwise done anything under or by reference to these regulations in relation to A or any other person; or

alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of these

or by reason that A knows that B intends to do any of those things, or suspects that B has done or intends to do any of them.

paragraph (1) does not apply to treatment of B by reason of any allegation made by him, or evidence or information given by him, if the allegation, evidence or information was false and not made (or, as the case may be, given) in good

Regulation 6 - Harassment on Grounds of Age

For the purposes of these Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of age, A engages in unwanted conduct which has the purpose or effect of -

violating B's dignity; or

creating an intimidating, hostile, degrading, humiliating or offensive environment for 8.

conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of 8, it should reasonably be considered as having that "

Regulation 7 - Applicants and Employees:

"(1) It is unlawful for an employer, in relation to employment by him of an establishment in Great Britain, to discriminate against a person -

in the arrangements he makes for the purpose of determining to whom he should offer employment;

in the terms on which he offers that person employment; or

by refusing to offer, or deliberately not offering, him

It is unlawful for an employer, in relation to a person whom he employs at an establishment in Great Britain, to discriminate against that person -

in the terms of employment which he affords him;

in the opportunities which he affords him for promotion, a transfer, training, or receiving any other benefit;

by refusing to afford him, or deliberately not affording him, any such opportunity; or

by dismissing him or subjecting him to any other "

At the hearing before the Tribunal the Claimant also alleged certain acts amounted to sexual harassment on at least six occasions by Mr Lees and in the issues agreed at the Case Management Discussion some of those acts were only considered to be pursued as acts of direct sex discrimination, those events are - January 2005 - Amsterdam; Hedge Fund Dinner/Restaurant November 2006; Monaco April 2007 - June 2007 Globe Pub and AES Conference in January 2008.

In addition the Claimant complains that sexual and/or ageist remarks made by Mr Lees during 2005/2006 (not 2007) also amounted to harassment.

The Claimant mentioned the Amsterdam 2005 incident and some of the other matters to her older sister in whom she confided and who cared very much for the
The Claimant's sister did not keep records but in her statement to the Tribunal said that she "recalled all too painfully the incidents and the impression and effect that they were having on her sister's state of mind and that her sister was ostracised by work colleagues during 2005." There was no evidence at all of Mr Lees ostracising the Claimant, on the contrary throughout her employment Mr Lees supported the Claimant before senior management and with other colleagues and it was Mr Lees to whom the Claimant turned when she needed support. For example she complained to Mr Lees about her feeling that the team were excluding her. Would she have asked Mr Lees for support had she have thought that it was him who was excluding or encouraging the team to exclude the Claimant.

The Claimant made notes of certain of the alleged incident and those were the notes produced to the Tribunal. There were discrepancies between the handwritten and the typed notes.

The Claimant explained to the Tribunal the differences arose because she did not refer to her handwritten notes she made the typing yet when sending her letter to Miss Lewis (page 832) the Claimant referred to 'collating her hand written notes.'
The evidence before the Tribunal from both the Claimant and the Respondent was that the Claimant was meticulous. Although the Claimant was meticulous in documenting concerns that she had at work the Claimant made no notes of many of the events which she alleges took place in 2005/2006 concerning the alleged sexual harassment and neither was she that meticulous in typing up making up her typed notes from the manuscript ones. Nor was she meticulous in ensuring her accounts of events were accurately and consistently recorded. Notes and accounts with so many variations are surprising bearing in mind the Claimant's reputation for being meticulous and organised.

The Claimant has alleged that she has been continually sexually harassed by a sexual predator Mr Lees from January 2005 to early 2008.

What is of some concern to the Tribunal is the fact that the Claimant did not make any complaint about this unacceptable conduct. The Claimant had known Mr Lees for some 12 or so years the Claimant's sister had first met Mr Lees over 16 years ago. The Claimant and Mr Lees were friends they had worked together previously for a number of years the Claimant had sought out Mr Lees to find a job to see if she could work with him.

The Claimant's sister in her witness statement suggested even 16 years ago that Mr Lees had left his wife to have an affair with another woman.
Yet nowhere do we find the Claimant, who often goes to Mr Lees for support rather than turning Mr Carp or Ms Ranunkle, saying to Mr Lees that his conduct was making her angry and causing her upset and distress and yet we do find her joining in sending risque e-mails to Mr Lees, participating in the team building exercise wearing a bunny girl outfit and in the photograph not appearing to be distressed about it. Even after making the allegations in March 2008 of sexual harassment we find the Claimant joining with clients at the Crazy Horse nightclub - a strip club - in Paris without any objection. Why we ask did the Claimant not ask Mr Lees to stop this alleged conduct as it was upsetting and distressing her.

The Claimant did not complain about this unwanted sexual conduct until the end of March 2008 in a letter dated 25 March 2008 some 11 days after a notification of her 2007 bonus - even then the Claimant appeared to be suggesting that if the question of her bonus was not sorted out to her satisfaction that she reserved her right to raise allegations of sex discrimination. The Claimant was appearing to make a threat to the Respondent that they should re-consider her bonus or else she would pursue allegations of discrimination. On a number of occasions in March the Claimant was pressed by Mr Duchesnes to set out details of these acts of sex and age discrimination and/or sexual harassment. At paragraph 92 of her particulars of claim the Claimant alleged that Mr Duchesnes admitted that what was alleged was true against Mr Lees. Mr Duchesnes denied making such an allegation, at that stage the Claimant had merely written her e-mail of 25 March which did not contain any specific allegations

against Mr Lees so we find it unlikely Mr Duchesnes would have made such a comment.

When pressed by Mr Duchesnes to set out details of the acts of discrimination the Claimant wanted time to enable her to set out her complaint and this tends to confirm that in the event that the Claimant had received a satisfactory bonus then she would not have been pursuing her allegations of sex and age discrimination/harassment.
The Claimant at the Tribunal was very ready to make quite scandalous comments and allegations about the conduct of two of her female colleagues on the team Ms Port and Ms Pritchard. Those allegations were completely unsupported by evidence and the Tribunal rejects them entirely. However the Tribunal is saddened that both of these women were because of these false allegations subjected to considerable interest by the press during the hearing and we believe the Claimant's conduct damaged those women's reputation quite unjustifiably and wrongly. The Claimant throughout the hearing was too ready to cast doubt over the moral conduct of her colleagues without any evidence
Despite the Claimant's claims that Ms Port was treated more favourably than the Claimant it is noted that Ms Port's services with the First Respondent were terminated yet Mr Lees when it was suggested the Claimant's services might be considered for termination fought the Claimant's corner and supported her. This notwithstanding the Claimant's evidence that she was unfavourably treated by Mr Lees because of her rejection of Mr Lees advances. Yet Mr Lees allowed Ms Port to be The Claimant's argument does not stand up - her evidence is incredible.
We see examples at (page 1299/1301(a)) when Mr Lees protected the Claimant from dismissal and other examples at (pages 442, 511, 516, 515 and 189(b)) where Mr Lees supports and defends the Claimant.
There was absolutely no evidence before the Tribunal that Mr Lees made any advances to Ms Port or Ms Pritchard or that they had submitted to such advances if they had been made nor was there evidence that they were paid higher bonuses because of any such submission neither was there any evidence from which the Tribunal could conclude that the Claimant's bonus which was less than Ms Pritchard's and Ms Port's had anything to do with the Claimant's alleged refusal to accede Mr Lees advances. The Claimant's alleged unfavourable treatment for her refusal to accede to Mr Lees advances is just not supported on the
The Claimant was treated in exactly the same way as Mr Hawgood so far as bonuses was concerned, Mr Hawgood was the employee doing the most similar work to the Claimant so on the question of bonuses and the hypothetical comparator it is without doubt that the Claimant's claim would
The Tribunal had great concerns when considering the sexual harassment claim

- in isolation and together the Amsterdam event, the Monaco conference, the Globe pub, and the AES conference events if true could be said to have the effect of violating the Claimant's dignity or of creating a hostile, degrading or offensive environment for her.

However when we considered the evidence in this case it is significant as we have said that the Claimant never asked Mr Lees to stop making such remarks as she found them offensive. It is the more surprising that this did not occur as if the events did occur as the Claimant suggests and they did cause her such distress as she alleges and as Mr Lees had been known to the Claimant for so many years that one could describe them as friends. Also what we consider to be significant is that after certain of the alleged events occurred the Claimant joined in banter of a sexual nature both in the office and by e-mail and chose a bunny girl outfit at a team building exercise, and furthermore the Claimant felt comfortable notwithstanding this alleged conduct to seek the support of Mr Lees for example when she felt she was being excluded by the team, was happy to meet him on a one to one basis for a coffee out of the office to talk about an office matter or to meet him socially for dinner or to go for a ride alone in Mr Lees car or to go to the pub for a drink (at the Globe) after Mr Lees had made a comment about sucking the Claimant's nipples. We appreciate how difficult it must be for women if they are harassed in the work place but we find the Claimant's behaviour after these alleged events to be so contrary to commonsense in the circumstances that we conclude either the conduct did not occur or that if it did it did not concern the Claimant and she accepted it as

We believe the Claimant was finding it difficult to do her job she was meeting resistance from traditional traders to changes from traditional to electronic trading - experiencing frustrating and annoying delays with the IT department in Paris and had been removed from the Dawnay Day account at the request of the client and the Claimant was not getting on with the team for whatever We hasten to add that we are not suggesting that the Claimant was not performing adequately merely that she was finding it difficult to do her job.
In respect of the first alleged incident (Amsterdam) if it occurred - whilst the Claimant says she rejected Mr Lees advances she did not say to him that he should not speak to her in that way in the future because she found it
There would have been ample opportunity for the Claimant to have said or indeed written to Mr Lees on a personal level without referring the matter elsewhere to tell Mr Lees that his conduct was offending her, that she was finding it degrading and humiliating and asking him to stop. She does not do that but what she does do is to send a 'well hung man' e-mail shortly after that incident so that things could carry on as 'normal'. There must therefore have been an environment where sexual banter etc was prevalent so on that basis although the conduct was not acceptable if it occurred, the Claimant had not indicated to Mr Lees that it was unwanted. We certainly do not condone such conduct as has been complained about in the
We do recognise the difficulties which women find themselves in where they are subjected to unwanted sexual conduct by 'their bosses' in the workplace it is understood why they would be fearful to escalate the matter formerly and to raise a grievance for fear of losing their jobs - but we do not accept that a woman would be any difficulty in informing her alleged harasser directly that she finds the conduct unacceptable and asking the harasser to stop We wrestle in this case to understand why the Claimant did not adopt that course if the allegations of continuous sexual harassment which she makes were in fact true.

The Claimant towards the middle of January 2008 was clearly anxious about her bonus and we see her e-mail at page 562 where she suggests unfairness in bonus allocations is on the grounds of The Claimant is anxious about the bonus to be awarded some two months later and is already suggesting to colleagues that she will be unfairly treated as is he is not French.

The Claimant first raises complaints of unfavourable treatment on the grounds of age and gender in her e-mail of 25 March after she has been informed on 14 March of the amount of her bonus for the preceding year and after she had been informed of her increase in pay from £95,000 per annum to £110,000 per annum. Her first reaction was that she was being paid less than the others and this was unfavourable perhaps this was because she had in her mind a quite wrong assumption that the others were achieving bonuses between of £750,000 and £1m each. No one was.
We accept the Respondents evidence they do not have a formula system for the calculation of bonuses. We accept the evidence of Mr Lees and Mr Duchesnes as to how the bonus award is calculated. We accept the final say is with the Remuneration Committee although clearly they are influenced by the recommendations of the department head in the Claimant's case for 2007 year by Mr Lees. It was Mr Lees who made the recommendation which he thought was fair in all the circumstances. He has explained his thought process to the Tribunal, the Tribunal recognises that such a system can lead to unfavourable treatment it is subjective it is not transparent. What the Tribunal considers it is necessary to do bearing that in mind is to be aware and to be cautious as such a system can lead to unfavourable treatment and to consider the evidence carefully.
We do not consider that because of that lack of transparency alone and that because one employee received a lesser bonus than another then that is unlawful, unfavourable treatment. It is necessary to look at all the evidence and in this case the most striking aspect is that the Claimant was treated identically to Mr Hawgood - male and younger - in respect of bonus and the Claimant was also awarded a pay increase to €110,000 which Mr Hawgood was not. So in fact the Claimant was better rewarded than Mr Hawgood her most obvious comparator.
Messrs Ford, Le Prince and Randall were not appropriate comparators, they all brought in substantial revenue than the Claimant and also when comparing those male employees to the female employees Ms Port and Ms Pritchard their bonuses although greater than the Claimant's were roughly in line with those male employees and the earnings of Ms Port and Ms Pritchard were substantially greater than the Claimant and their bonuses bore a similar relation to the male bonuses as did their earnings.
We were satisfied with the explanation given by Mr Lees as to his recommendations for the allocation of bonuses. We do not consider that the Claimant was treated unfavourably on all of the evidence before us both as to revenue and the yearly appraisal the bonus seemed proportionate to the other employees and as a percentage of remuneration to revenue earned the Claimant had a slightly higher percentage although all employees earned a similar percentage with a plus or minus 1%.

The Claimant's method of raising her concerns regarding her bonus was quite bizarre - she appeared to be raising the allegations of sexual harassment and age discrimination as a threat to achieve a greater bonus. The Tribunal does not understand her initial reluctance to identify the acts of discrimination she had suffered and her discriminator. This was a small team and a relatively small office and such unspecific allegations would be bound to affect the relationship between the employees in the team.
Mr Lees reaction suggestion in his e-mail that it appeared that the Claimant was saying sort out an acceptable bonus for me and the allegations of discrimination will then disappear is quite The Tribunal believes the Claimant was using her threat of alleging discrimination as a lever to increase her bonus.
The Respondent Mr Duchesnes, Mr Lees and Mr Carp did their best to explain the basis of the calculation of the bonus to the Claimant over numerous meetings - they told the Claimant what had been taken into account, confirmed they had taken into account the correct income stream of €4m, confirmed that they had checked whether she had been credited correctly with income from clients that she had been involved with and it is clear that having investigated in detail in the evidence at the Tribunal or relevant revenue that they had taken into account all the Claimant's revenue income. The Tribunal concludes that looking at the bonus across the team the Respondents given explanation which explains why some were awarded more than others is consistent with the supporting evidence and is not tainted with
Mr McClean it is noted queried his bonus - he was dealt with in the same way by the Respondents and was not given an increase and was not supplied with any documentation or information other than that supplied to the
The Tribunal were impressed by Mr Duchesnes evidence - we are content that he did his best to resolve the Claimant's concerns - he we believe did not as the Claimant suggest in her letter to him give three options one of which was to We can imagine a discussion about the reality of the situation which was that the Claimant would have to resolve matters between herself and Mr Lees either amicably or follow a formal grievance procedure if she were to stay with the Respondents there was no other alternative the situation had to be sorted out one way or the other. It was very difficult for Mr Duchesnes as serious allegations had been made by the Claimant that needed to be resolved yet the Claimant was until 18 April 2008 not prepared to clarify precisely what they were and in the meantime it made the work situation extremely difficult. The Claimant believes that other members of the team knew what was going on - this was a small team working in an open plan office it would be naive to think that the rest of the team did not at least 'suspect' that there was something going on merely on the basis that they saw the Claimant attending meetings from time to time with Messrs Lees, Carp and Duchesnes that fact alone would have raised suspicion.
We deal with the issues 5(1)(a) the Claimant was in 2005/2006/2007 paid a lower bonus than Mr Mr Ford was employed on the sell-side - he had revenue earnings for the year 2005 gross €6m, 2006 gross €9.8m, 2007 €7.2m net. Mr Ford is not a suitable comparator or if he is then he was the Respondents AES Teams greatest earner he was paid a greater bonus because of his greater contribution to the First Respondents business and because of his considerable revenue stream. Mr

McClean received a lesser bonus than the Claimant for the year 2007 he did however receive the signing on bonus to compensate him for his loss of bonus from his previous employer - such was not paid to the Claimant when she joined in 2004 as she had not previously employed there was no reason to pay her such a bonus in 2007. Mr Le Prince received a higher bonus than the Claimant throughout but earned considerably more, Mr Randall received a lesser bonus in 2006 a higher bonus in 2007 but during that year Mr Randall's revenue exceeded the Claimant's revenue.

Mr Hawgood is the comparator who was the most similar to the Claimant and throughout (except for a bonus paid in July 2005 to cover his transfer to Paris) the Claimant and Mr Hawgood received identical bonuses although in fact Mr Hawgood had slightly higher revenue in We might say at this stage that the calculation of the employee's basic plus bonus has a percentage of their revenue left the Claimant with 11.67% the highest earner (except for Mr McClean who had only joined part way through the year).
5(1)(b) In the instances where the Claimant received a lesser bonus than the man Mr Ford, Mr Le Prince and Mr Randall this was because the Claimant generated less income to the Respondent than the
The Claimant received a greater bonus than Mr Mcclean and an identical bonus to Mr Hawgood, Mr Hawgood being the employee who did the most similar job to the Claimant they were given the same bonus although the Claimant received a higher salary, the difference in bonus was not to do with the Claimant's gender nor because she refused to submit to any unwanted conducted of Mr
5(1)(c) Mr Lees was responsible either solely or jointly with Ms Ranunkle in respect of the 2006 bonus in making the recommendation to the remuneration committee. So whilst each bonus allocation was a discrete event we consider that the common factor of Mr Lees influence in the recommendation process could if found proved, which it was, not form part of an act extending over a
It was the Claimant's case that Mr Lees was a sexual predator who abused his senior position to obtain sexual favours from his subordinates and who sexually harassed women.
The only evidence put forward by the Claimant was her own position. Ms Murphy who denied that Mr Lees had 'come on to her' and on the Claimant's case in respect of Ms Port and Ms Pritchard was that they had in any event consented to having an affair with Mr Lees. So it was the Claimant who found Mr Lees to be a sexual predator.
It is difficult for the Tribunal in the light of the evidence before it to conclude whether the allegations of sexual conduct which it is said to amount to sexual harassment actually occurred.
There was evidence before the Tribunal from which it can conclude that sexual banter took place in the workplace, there is evidence that the Claimant participated g. the e-mail at (page 166) the e-mail sent by the Claimant to a client referring to her car as a 'pulling machine' the Claimant participating in a Respondent events at the Crazy

Horse strip club where women paraded semi-naked and the Claimant wearing a bunny girl outfit for the team building exercise (see 593(j)).

As to the Amsterdam incident in January 2005 the Claimant makes the allegation which was denied by Mr Did it happen? We look at the Claimant's and Mr Lees conduct after the alleged events on 27 January - they carried on as normal - shortly after the Claimant sends an e-mail with sexual innuendo - the Claimant explains her reason was to normalise the working relationship. This reason only makes sense if the working environment is one where sexual banter is prevalent in the workplace and which the Claimant goes along with and in that light the Claimant cannot argue that it was unfavourable conduct. The Claimant in her evidence seems to suggest that her sending of risque e-mails to her manager, was alright yet infers that the sending of similar e-mails (although none were identified) by managers and others on the team was not appropriate. The Claimant was suggesting one standard for her and one for others on the team.

(b) On the evidence we are satisfied that when Mr Lees transferred the Claimant to the 'buy-side' in April 2005 that it Mr Lees gave the Claimant an assurance that she will not earn less - she did not - this could only refer to what was earned in the previous year. There was a discussion that there was a long lead-in time for the clients on the buy-side and that it would take time to build up revenue - the Claimant was not misled - she was assured that this long lead-in time would not affect her and she was compensated for it - there was no unfavourable treatment of the Claimant by transferring the Claimant from the sell-side to the buy-side.
Even if it was unfavourable treatment we accept that the First Respondents were concerned about the Claimant's progress on the sell-side and that the Claimant's strengths gained at Liberty where she had set up electronic routing sales were skills needed to progress the sales of AES to the First Respondents existing clients and that the Claimant had the skills and the right personality and tenacity to do There was no unfavourable treatment. The Claimant's age and gender were nothing to do with the First Respondents decision.
(c) In regard to this issue the Claimant has adduced little actual evidence she makes generalised and sweeping statements that Mr Lees made various The Claimant had not recorded these incidents when they occurred, had not indicated to Mr Lees that they were unwanted and that the Claimant found them offensive. Mr Lees denied making such offensive remarks about the Claimant's breasts or figure or that he propositioned the Claimant - these comments were alleged to have been made both in and out of the workplace - the Claimant adduced no evidence to support the allegations and bearing in mind the workplace was a small working environment with some 10 people on the team all closely working together we feel sure had the remarks have been made as often as the Claimant suggests that she would have been able to refer to corroborative evidence to support her allegations. The Claimant has not satisfied the Tribunal that the remarks complained about were made.

Of course during that period the Claimant raised her concerns with Mr Lees about her perception that she was being excluded from the team - Mr Lees recalls that conversation and confirms that he tried to reassure the Claimant and even if the comments allegedly made were in fact made we do not consider it to be unfavourable

treatment Mr Lees was merely trying to reassure the Claimant and attempting to explain that the Claimant was imagining that she had been excluded.

(e) The Hedge Fund dinner - 2006 - the Tribunal finds it highly unlikely that the comment would have been made as the attendees of the Hedge Fund Dinner were for the large part glamorous young women in their Even if made the Claimant accepted that the remark was not addressed to her so there was no unfavourable treatment. We do not accept that Mr Lees made the comment attributed to him but if he did it was not an act of sex or age discrimination against the Claimant. Neither was the discussion about the James Bond/Ian Fleming formula during dinner such a discussion could not reasonably be considered as an act of harassment on the grounds of age or gender nor an act of sex or age discrimination.
(f) The breakfast meeting at Tony's. We find it highly improbable that Mr Lees who was trained to deal with the press and journalists would make the comments attributed to him to Mr Mr Lucas the journalist from the Financial Time whose recollection was good on things such as what was ate and what matters were discussed (something about rental properties) was unable to confirm the Claimant's claims as to what Mr Lees was alleged to have said. The Tribunal accepted Mr Lucas evidence. We do not find that Mr Lees made the comments attributed to him.
(g) The marketing manager role in January 2007 - the offer of this position was made to the Claimant - the Respondents were in Mr Lees view not getting value for money spent on marketing - they considered the Claimant would have been able to do that task - the Claimant declined - no further action was taken and the job was offered to another - there was no unfavourable treatment.
(h) The meeting on 27 January 2007 - the review meeting was called to enable Mr Carp and Mr Lees to discuss with the Claimant the way forward and was the opportunity for them to give advice if necessary to the Claimant to enable her to apply her mind and to progress her activities for the First Respondent. The Claimant understood what was required of She wrote back after the meeting to record her understanding of what was expected. This was the sort of meeting that occurs on a daily basis in offices throughout the world - it is part and parcel of the manager's duty to manage subordinates. The Tribunal believes that the Claimant felt vulnerable at this time as she was aware that she was not achieving as she would have wished. This was just a normal meeting - no unfavourable treatment.
(i) Monaco - we conclude that Mr Lees did make a remark about the Claimant's cleavage, the Claimant's sister records the use of the word cleavage was told to her by the Claimant and a remark which Mr Lees acknowledges he may have made. Mr Lees denies later inviting the Claimant to spend the night with him and saying that he would do unthinkable, unbelievable things to We are not satisfied these latter comments were made. If we are wrong then it would have been a discrete act of direct sex discrimination. However it is out of time we do not consider that it would be just and equitable to extend time.
0) (June 2007 Globe pub - 'suck nipples' remark) - we are not satisfied these remarks were made there are inconsistencies and an unsatisfactory explanation for those inconsistencies in the notes made by the Claimant - however if we are wrong

then on its own such conduct would have amounted to direct sex discrimination and to sexual harassment. On its own it is out of time - we do not consider it just and equitable to extend time.

(k) January 2008 AES conference. We do not accept that Mr Lees asked the Claimant when they were going to get together nor did he say that he was 'fantastic in bed' and 'had great staying power'. The account given to the investigator and to the Tribunal where reference was made to maintaining an erection for a long time suggests
that the Claimant a meticulous person used to recording events and details detailing her concerns may not be entirely accurate or truthful with her Bearing in mind the Claimant alleges that she was angry and upset at such conduct it is inconsistent with such feelings for her then to accept a ride with Mr Lees in his new car
an offer she could quite easily have declined - she could have made an excuse that she had to leave - she did not is this the reaction of a woman who has been subjected to sex discrimination a short time before -we believe
(I) Mr Lees did inform Mr Bassien of the Remuneration Committee that he rejected the suggestion to increase the Claimant's bonus by €25,000 and decrease Mr Fords by €35,000. Mr Lees explained why - that he was not justified by reason of Mr Ford having done extremely well and that in any event the figures put forward by Mr Lees to the committee reflected fairly the awards across the team. We accept that evidence and we believe that taking all matters into account and considering the table at page 261 showing the percentage of an individual's earnings compared to the revenue they bring in does show a consistency across the This was not an act of unfavourable treatment either on the grounds of the Claimant's age or sex or because she had rejected Mr Lees advances.
(m) The Claimant was given the only information that was available - they treated the Claimant in the same way as Mr McClean - one asks what else could they have In any event this could not have amounted to victimisation as the Claimant did not do a protected act until 25 March 2008.
(n) On 17 March 2008 Mr Lees did confirm that he would meet with the Claimant - there was no evidence that anyone on the team heard the conversation - it appears from evidence that only two work colleagues were present and neither likely to have heard anything and in any event it was only a conversation to arrange a This could not be victimisation as the Claimant had not at that stage done a protected act. It was not in any event unfavourable treatment.
(o) The meeting of 19 March 2008 the Claimant complains was intimidatory and aggressive and her concerns were belittled. A meeting was to consider the Claimant's query over her bonus - it was for her to set out the basis of her complaint - the Claimant adopted a hostile stance from the beginning indicating that she was there to listen and to take The meeting was unproductive - it was getting nowhere - it seemed right to stop it - it was an attempt at an informal meeting which because of the Claimant's attitude got nowhere. Mr Lees, Mr Duchesnes and Mr Carp cannot be said to be behaving unfavourably on the grounds of the Claimant's sex or age nor was it an act of victimisation. In any event the Claimant accepted that Mr Carp was not aggressive and did not maintain that allegation at the Tribunal. The Claimant's notes show that Mr Lees did give an explanation for her bonus - the Tribunal do not accept

that Mr Lees left the meeting laughing - the Claimant's own evidence on this is inconsistent. There was no unfavourable treatment of the claimant at that meeting.

(p) Whether Mr Lees misrepresented the nature of 19 March meeting in his e-mail at (page 626) of 20 March to the Claimant when he stated 'we did not know the purpose of the meeting you requested for yesterday - at the time the Claimant was not only questioning her bonus but also alleging that she had been treated unfairly' it would be normal at the start of any meeting for the person who called the meeting (the Claimant) to explain what it was about. The fact that the Claimant may have told Mr Carp a day or so before concerning her bonus would not affect that position this is not unfavourable treatment.
(q) There was no evidence to support the Claimant's contention that Mr Lees bullied or intimidated the Claimant on 26 March to arrange a meeting or that he referred to the Claimant's allegation in front of others in the office. The evidence of others was that Mr Lees did not and their evidence does not support the Claimant's claim. The Claimant had agreed to have a further meeting with Mr Lees he was suggesting it took place that day - it must have been in the interests of all not least the Claimant to resolve matters amicably if they could and at the earliest opportunity there were no documents which could have been supplied to the Claimant. We do not accept that there was unfavourable treatment of the
(r) Did Mr Lees marginalise the Claimant as from March 2008 - there was no evidence to support the Claimant's contention that Mr Lees had not maintained confidentiality about the matters she had complained about there was no evidence from the Claimant's colleagues that this had happened and the Claimant gave no evidence as to circumstances which suggested that that had Nor was there any evidence to support the Claimant's allegation that Mr Lees marginalised her.
(s) April 2008 Mr Duchesnes failing to provide documents and information - Mr Duchesnes provided the Claimant with all relevant information - he did not give full information to the Claimant about the bonuses of others but this was not because of the Claimant's age or gender or because she had done a protected act it was for genuine business reasons.
(t) There is no evidence to support the Claimant's contention that Mr Lees had informed either Mr Bassien and/or Mr Duchesnes that he could not work with the Claimant. It was commonsense for Mr Duchesnes to inform the Claimant that the matters needed to be resolved either informally or The Claimant had made serious allegations and there was a long delay between 25 March 2008 when the Claimant first made an allegation of discrimination and her giving details in her letter of 18 April by way of grievance.
This delay would have led to tension between the Claimant and Mr Lees and would have created an atmosphere in the
We do not accept that Mr Lees said that he could not work with the Claimant again. It is clear that Mr Duchesnes and Mr Bassien by offering the additional £10,000 bonus were doing all they could to ensure the Claimant did continuing working and

they would not have done this had Mr Lees have said that he would not have worked with the Claimant.

The Tribunal accepts Mr Duchesnes evidence that he did not give the Claimant the three options which she sets out in a letter of 10 April 2008 (page 661) we accept Mr Duchesnes version of the meeting which he sets out at (pages 663-664) which are recorded in full earlier in this We acknowledge that Mr Duchesnes was doing his best for the Claimant in attempting to persuade her to raise her grievances informally in the first instance and then formally and we accept that he says in his e-mail of 10 April (page 664) that the Claimant was a person that the Respondent did not wish to lose. Mr Duchesnes was doing his best to resolve the situation to the Claimant's and First Respondent's satisfaction.

(v) Mr Duchesnes did raise with Mr Bassien the amount of the Claimant's bonus and had in fact received authority from Mr Duchesnes to offer a top up of an additional £10,000 to the Claimant as an addition to her bonus as a sign of goodwill. Unfortunately because of circumstances relating to the manner in which the Claimant behaved this offer was never made as the relationship had become strained.
(w) Mr Duchesnes had two meetings with the Claimant on 8 April - Mr Duchesnes was anxious that the damaged relationship with Mr Lees and the Claimant be repaired as soon as It must have been obvious that the Claimant's work would suffer so long as matters were unresolved Mr Duchesnes was anxious for the Claimant and for the business he did not wish to lose the Claimant.
(x) We accept Mr Duchesnes explanation and his letter of 10 April (page 663-664). We find his recollection of the meeting far more credible than the Claimants
Mr Duchesnes did not mischaracterise the meeting of 8 April and the options which the Claimant alleges she was
(y) It was apparent from the evidence and from Mr Duchesnes comment in his witness statement that the Claimant had not felt or been part of the team for some while - the Claimant had felt it herself and Mr Duchesnes had observed that - having said that there was no evidence before the Tribunal to suggest that Mr Lees or the team were deliberately ostracising the In respect of Mr Lees, the Claimant of course had explained to him that she felt that she was being excluded by the team not by him when she raised the matter with him and sought his support.
(z) Messrs Lees, Carp and Duchesnes attempted to resolve matters informally - they did all they could - it is not clear what more they could have done save to agree that the Claimant was paid a lower bonus than she was entitled to and increased that bonus. That was the only outcome that would have satisfied the Claimant. The Tribunal are satisfied that they did all within their There was no unfavourable treatment on the grounds of age, sex or because of the protected act.
(aa) The Dawnay Day account was given to the Claimant when she started by Mr Lees - the account was shared with Ms Pritchard after the Respondent received a complaint from Mr Thomas who had asked for Ms Pritchard to be involved with the account rather than the The account was shared in 2007 because of the

Client's request and not because of the Claimant's sex or age. The account was shared long before any protected act.

For the above reasons we do not find that the Claimant has been victimised for making any of the protected acts which she sets out in the response to her request for further We find the first protected act was the letter of 28 March 2009 that was the first occasion when the Claimant alleged discrimination on the grounds of age and/or sex.
Had the various complaints been proved in particular the complaint of sexual harassment and or sex discrimination by the Respondents failure to pay her a correct bonus in March 2008 we believe the Claimant could have relied on a continuing act on the grounds that the matters alleged were against Mr Lees and had they have been proved would have established a course of conduct amounting to unfavourable treatment of the Claimant based on her
The Claimant's claim that she was not given a proper bonus as she saw it because she had rejected Mr Lees advances would have been a claim under section 4A(i)(c) of the Sex Discrimination Act The Claimant was unable to make out the elements of (section 4A(i)(a) or (b)) or that she received less favourable treatment or that there was a causal link between the two. For all of the above reasons the Claimant's claims fail and are dismissed.
It is regrettable that this situation has occurred. The Claimant was a valued employee. The Tribunal are conscious that the Claimant is still in the employment relationship although she had been absent since October 2008 by reason of ill-health. During the Claimant's evidence before the Tribunal it became clear that whatever the outcome of this case the Claimant did not wish to return to work for the With that in mind the Tribunal encourages the parties to enter into some form of mediation to resolve what must be an unsatisfactory position for both the Respondents and the Claimant.

SIGNED BY EMPLOYMENT JUDGE

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