The Claimant worked for the Respondents, but his employment was terminated under the probation process following a number of meetings at which his performance was considered. He made various allegations in the ET, including sexual harassment and/or harassment related to sex in relation to the actions of his team leader, the Second Respondent. The ET held that, as "unwise and uncomfortable as the conduct was", the complaint failed. The Claimant appealed on the ground that the ET erred in law in failing to apply the shifting burden of proof provisions to the determination of whether unlawful harassment relating to sex occurred.

The EAT held that the ET had correctly identified what it saw as the evidential difficulties with concluding that the threshold had been reached of showing a prima facie case that the unwanted conduct was related to the Claimant's sex, and so the burden of proof did not shift to the Respondents.