M N Ullah v Greencore Food To Go Ltd: 1300043/2024

EMPLOYMENT TRIBUNALS

Case No 1300043/2024

Between

M N UllahClaimant

Greencore Food To Go LtdRespondent

Before

Employment Judge Gidney

In person for claimant

Miss Thomas (instructed by Counsel) for respondent

Date 18 December 2025

JUDGMENT

[1]The Claimant’s application to join Job & Talent Uk Ltd as a Respondent to this claim is dismissed;

[2]The Claimant’s claim of age discrimination is dismissed.

[3]The Claimant’s claim of disability discrimination is dismissed.

[4]The Claimant’s claim of sex discrimination is dismissed. 1 of 2 Case Number: 1300043/2024

[5]The Claimant’s claim of sexual orientation discrimination is dismissed.

[6]The Claimant’s claim of discrimination on the grounds of religion or belief is dismissed.

[7]The Claimant’s claim of direct race discrimination shall proceed to trial.

REASONS

[1]The claimant was employed by Job & Talent UK Ltd, an employment agency supplying agency workers. From 17 to 29 August 2023, the claimant worked as an agency worker at the respondent’s warehouse at Tamworth as a Warehouse Operative.

[2]Following a period of ACAS early conciliation that started on 18 December 2023 and ended on 22 December 2023 the claimant presented a Claim Form (ET1) on 5 January 2024 making claims for unfair dismissal, discrimination on the grounds of race, age, disability, sex, sexual orientation, and religion or belief. By a Response Form (ET3) filed by the respondent the complaints were contested and raised jurisdictional issues. Preliminary Hearings

[3]The complaint of unfair dismissal was struck out by an Order dated 21 May 2024. At a Public Preliminary hearing held on 10 December 2024, EJ Gidney dismissed the complaints of discrimination on the grounds of age, disability, sex, sexual orientation, religion or belief, and also the application to join Job & Talent UK Ltd, his former employer to these proceedings. The complaint of direct race discrimination was the only complaint allowed to proceed.

[4]At a Preliminary Hearing for case management held on 14 March 2025, EJ Gidney confirmed the factual and legal issues to be determined at this hearing. The complaint of discrimination was identified to be a complaint of direct race discrimination relating to two alleged incidents. The agreed List of Issues as set out in the Order, are repeated below. Time limits (Equality Act 2010 s123)

[1]Given the date the Claim Form was presented and the dates of early conciliation, any complaint about something that happened before 1st October 2023 may not have been brought in time.

[2]In the circumstances, the complaints of discrimination, said to have occurred on 20th and 29th August 2023, appear to have been presented out of time.

[3]Were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 3.1. Why were the complaints not made to the Tribunal in time? 3.2. In any event, is it just and equitable in all the circumstances to extend time? Direct Race Discrimination (Equality Act 2010 s9 & s13 EqA)

[4]The Claimant’s describes race is Afghan Pashtun (Pakistani).

[5]Did the Respondent do the following things: 5.1.On 20th August 2023 was the Claimant racially abused by Scott Tune and Dan Tune as the Claimant was by the turnstile carrying food from the canteen, when they said to him ‘ohh Paki Muslim you get all the food from ours and you take the leftovers food someone left at the outside table and go fuck off take out the food from the bins and the tables someone left and don't back here again we don't want Paki Muslim in here’; 5.2. On 29th August 2023 did Mr Carl Lake, the Respondent’s Transport Shift Manager respond to the Claimant’s expression of interest in a driver’s job employed directly by the Respondent by stating ‘no way, we only employ white people, no direct job for you here’.

[6]Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated.

[7]The Claimant has not named anyone in particular who he says was treated better than he was.

[8]If so, was the treatment because of the Claimant’s race? List of Issues 5. The factual and legal issues as set out above were reviewed with the parties at the start of the hearing. These were confirmed as agreed without any amendment. This Hearing Interpretation for the Claimant 6. For this hearing the claimant requested an Interpreter of Afghan Pashtun. The claimant describes himself as Afghan Pakistani. He is a Muslim by religion. His first language is Afghan Pashtun. English is his second language. 7. On the first day of this hearing, the Interpreter was Mr Wais Amiri. Before the start of the hearing the claimant and Mr Amiri had spoken with each other. Mr Amiri explained that there was slight difference in dialect with the claimant, however, they were able to communicate and understand each other. In response to a question from the Judge, the claimant confirmed he was prepared to proceed with the hearing with the assistance of Mr Amiri and that if any issue did arise he would make the Tribunal aware. The claimant also explained that he was able to read and write English; that he had a good understanding of the English language and was able to speak English fluently. 8. On the second day of this hearing, due to the unavailability of Mr Amiri, a different Interpreter, Mr Radifullah Hamid (also Afghan Pashtun) attended. Again prior to the hearing, the claimant and Mr Hamid had spoken with each other. They both confirmed they were of the same language and dialect, and that they were able to fully communicate with each other.

List of Issues

[9]In the first two days of the hearing, during which the parties evidence and cross examination was completed, the Judge observed the claimant was able to understand and communicate reasonably well in English. He did not present any difficulty in understanding and speaking English. He did not require simultaneous interpretation during the hearing. In fact, the interpreter was used sparingly by the claimant as he preferred to communicate directly in English. However, the Judge used the Interpreter more, particularly when he considered it was necessary to ensure the claimant was fully understanding of what he was being told about the issues in this case and the repeated direction and guidance given to him to remain focused on the issues to be determined rather than bring up issues which were not relevant to this case, (i.e complaints/allegations about whistleblowing; disability discrimination and religion)

[10]On day five the Judge was to give oral judgment. Mr Amiri was the appointed Interpreter. Before the start of the hearing, the claimant informed the Tribunal clerk that he did not want the assistance of Mr Amiri and also that he did not want him to be present at the hearing. The reasons given was that he felt Mr Amiri did not understand him because of a difference in their dialect, and also he did not like him. In response to the Judge, the claimant confirmed he was content and able to proceed without an interpreter. Accordingly. Mr Amiri was released from the hearing, and no alternative interpreter was engaged.

[11]During the course of the hearing, the Judge observed the claimant had a good understanding of the English language; that he was able to engage and communicate reasonably well. The claimant did not show any sign of not being able to understand the questions put to him or the discussions held. The claimant talked at a fast pace and on several occasions, the Judge requested him to speak at a slower pace so that he could be properly understood and a full note be taken of his evidence. Documentation for the Hearing

[12]The Tribunal was provided with an agreed bundle of documents of 99 pages prepared by the respondent,

[13]The claimant also produced numerous additional documents during the hearing, which were also sent to the respondent solicitors. These were as follows. On 14 December 2025 in readiness for this hearing he sent a series of emails, namely email dated 11 December 2025 setting out a Schedule of Loss; email dated 12 December 2025 showing a screenshot of Rights of Contract Workers; email dated 2 January 2025 seeking to add his employers Job & Talent UK Ltd. On the morning of the 15 December 2025 at 8.28am, copy of an email the claimant sent to his GP practice requesting a medical report; an email about his case being in the public interest; email dated 14 December 2025, re; Public Law in workplaces; and an email dated 13 December 2025 re; Agency workers protected under the Equality Act 2010. On 16 December 2025 at 8.00am, he sent an email titled Prolong Solitary confirmed and prolong work place state; Further, on the 16 December 2025, he sent 3 emails during the lunch period between 13.03 and 13.34. The first was to explain the reason why he submitted the Claim Form out of time; the second was his closing submissions and the third about his disabilities and principles of s6 of the Equality Act 2010.

[14]In discussion with the claimant, the Judge explained that emails only relevant to the issues to be determined would be read and considered. Witness statements

[15]A witness statement was received from the claimant in email form on 18 November 2025. This statement was 3 pages. The statement only contained a few paragraphs relevant to the issues to be determined. Otherwise the statement covered allegations about other incidents in the workplace involving other workers; how he had been treated unfairly, abused and discriminated (racially and religiously) by Managers and workers of different backgrounds (i.e Romanian; Indian and Pakistani Punjab) The claimant also stated that he had a disability because of issues with his hearing and right knee.

[16]The respondent provided statements for Mr Carl Lake (Transport Manager) Mr Scott Tune (Driver) and Mr Dan Tune (Driver)

[17]All witnesses gave live evidence and were cross examined. The Tribunal also asked questions of the witnesses for clarification.

[18]At the conclusion of the parties’ evidence, both parties provided written submissions. The claimant submitted his submissions in three separate emails, which he did not expand on orally. These emails were taken as read. Miss Thompson made oral submissions to supplement the written submissions and invited the Tribunal to dismiss the complaints on the grounds the claimant had not established a prima facie case, and in any event the complaints were presented out of time and the Tribunal should not exercise its discretion to extend time on a just and equitable basis. Claimant

[19]At the start of the hearing, the Judge explained to the claimant that this claim was limited to the complaint of direct discrimination on the grounds of his race as set out in EJ Gidney’s Order dated 14 March 2025. Despite this during the hearing, the claimant repeatedly asserted he was disabled person for the purposes of s6 of the Equality act 2010. He claimed he has a number of impairments, i.e memory loss, knee issues, limited hearing in left ear; anxiety and depression and that he had been discriminated because of his disability and religion. On a number of occasions the Judge had to make it clear to claimant that this claim was about discrimination on the grounds of the protected characteristic of race only. Also there was no evidence before the Tribunal about the impairments he claimed to have.

[20]In cross examination, the Judge observed the claimant did not always answer the question directly. That was not because he did not understand the question but because what he wanted to tell the Tribunal, in particular about other alleged incidents and issues and how other individuals had conspired against him and treated him, which was not relevant to this claim.

Findings of fact

[21]The Tribunal made findings of fact as set out below, based on the balance of probabilities having considered all of the evidence presented during the hearing. Any reference to a page number is to the relevant page number in the bundle. The Respondent

[22]The respondent company is part of Greencore Group Plc, which is a leading manufacturer of convenience foods and supply major supermarkets and food service companies in the United Kingdom. The respondent has multiple sites in the United Kingdom. The Claimant

[23]The claimant describes himself as Afghan Pakistani. He is a Muslim by religion. His first language is Afghan Pashtun. English is his second language. The Claimant’s employment

[24]The claimant was employed by Job and Talent UK Limited, an employment agency who provide agency workers for the respondent business. The claimant was assigned to the respondent as a Warehouse Operative (Food Picker) from 17 August 2023 to 29 August 2023 based at its Tamworth site. The claimant’s assignment with the respondent ended on 29 August 2023 after which his employment was terminated by Job & Talent UK Ltd,. The Claimant’s complaints and evidence (i) Incident of 20 August 2023

[25]On 22 August 2023 the claimant made a written complaint about an alleged incident that occurred whilst at work on 20 August 2023. This complaint was made to his employer Job & Talent UK Limited. The complaint stated, “I was walk out at turnstile and press the Green Button and there were four Guys and one of them was very negative and offering me hate and saying that fucking you got the food from the table remaining and fucking go get outside and take the empty drink bottle, someone had left for you, fucking shit you take everything, and I ignore him and saying more abusive and racist words words. It happened about 06pm (approximately) Happened last Sunday at 06pm. approx”. (p86)

[26]On 24 August 2023 the claimant attended an investigation meeting with Mr Stefan Panciuc (Account Manager) and Maria Georgiana Bajenaru (Account Co-ordinator.) of Job & Talent UK Ltd. Notes of this meeting were taken and disclosed in the hearing bundle. These notes are signed by all three attendees. (p93-94) The notes record the account given by the claimant in the following terms. The incident occurred on Sunday 20 August 2023 at around 6pm. He was exiting the area with food in his hands when four male persons crossed him. One of the four person allegedly said the words as confirmed in his written complaint.(p86) The claimant confirmed he did not know if the four persons were agency staff or employees of the respondent. He did not know the name of the person who made the remarks but said he knew he worked on the evening shift and that he could identify him if he saw him. He confirmed this was the first time he had any interaction with these persons. The claimant recalled the person asked him where he got the food from and accused him taking everything. He believed the alleged words spoken was to humiliate him and make him feel bad. He recalled the person even said about an empty drink bottle from outside to go and take it as someone left it for him. The claimant said he asked him to repeat what he said to him which he said he repeated.

[27]Mr Panciuc asked the claimant to explain what were the racist words used. The claimant replied, “ fucking you get the remaining food from the table, fucking go get outside and get the empty drink bottle someone left for you, fucking shit you take everything. “ (p94)

[28]The note also records the claimant did not believe the words were racist but the way he acted was offensive. He wanted to find out why the individual did what he did and the reason for his behaviour and agreed for the respondent to conduct this investigation in an informal manner. (p94)

[29]In cross examination, the claimant claimed he did not agree with the recorded notes despite his having signed these. He asserted he did not agree that the complaint be dealt with informally or that no action should be taken against the persons involved.

[30]Following this interview the CCTV footage relating to this incident was reviewed. It was unclear who reviewed the footage, ie the respondent or Job & Talent UK Ltd. However, the CCTV footage identified two employees of the respondent, Mr Dan Tune and Mr Scott Tune (both brothers) who passed the claimant at the time of the alleged incident. No explanation or evidence was given about who were the other 2 persons.

[31]On 24 August 2023, at 16.45pm, Mr Scott Tune (“Mr ST”) was interviewed first by Mr Carl Lake (Transport Manager with the Respondent). Mr ST was not given notice of this meeting or what was to be discussed. The notes of this meeting record the following. At the start of the meeting, Mr ST is told about the purpose of the meeting, and asked about his recollection of an incident that occurred around the turnstile area on 20 August 2023 at about 6pm. Mr ST explained he had no recollection of the alleged incident and denied saying anything to the claimant. He was adamant there must have been a mistake by the claimant and that 100% it was not him. He confirmed at the time he was with Dan, Lewis and Conor.(p87-88)

[32]After interviewing Mr ST, Mr Lake interviewed Mr Dan Tune (“Mr DT”) at 17.15pm. Again, Mr DT did not know the reason for this meeting. His recollection of the alleged incident as recorded in the notes of the meeting, are, “ I saw a guy with like 6 packs of chicken coming towards us near the canteen and I said. “effin hell son you've done well”. He denied saying anything further to the claimant. He also denied he made the comments as alleged by the claimant (i.e in his written complaint or as stated in his investigation meeting) or that he was a racist. He was offended that he was accused of being a racist. He mentioned he was brought up in a Muslim area and that he did not have a racist bone in his body. He was offended by the accusation made against him. He confirmed at the time of the incident he was with others namely, Lewis, Conor and Scott.

[33]The respondent did not confirm the outcome of this investigation. Claimant’s evidence.

[34]In the Claim Form, at Section 8.2, the claimant expressed the alleged incident at the turnstile, in the following terms. “On one occasion I was leaving from job, on the entrance gangs of white English guys threaten, use violence and bullied me racially and I haven’t said a word, if I say anyone, then they will attack on me and then I reported…” (p10)

[35]On 15 January 2024 the claimant sent a detailed email to the Tribunal. He voluntarily provided further information in support of his claim. The account relating to the turnstile issue on 20 August 2023 as stated is that, “And on another occasions at the turnstile I was leaving from work and hold two egg box and apple bag as we buying from the canteen (item which are nearly expiring) and there was group of white guys and one of them start direct racial and religious bullying and slurs and saying oh paki Muslim you get all the food from ours and you will take the leftovers food someone left at the outside table and go fuck off take out the food from the bins and the tables someone left and don't back again here we don't want paki Muslim in here and was ready to attack on me all of the group as were in action and that person repeat more than five times the racial and religious bullying and slur and I get nervous and scared as all of them in position attack on me. And I reported this after two or three days as I was feeling very depressed and emotionally disturbed due to that abuse. (p16)

[36]The claimant in his witness statement described the incident in the following terms. “ Apart from that, one day at turnstile, about 5 guys were there and I was leaving with food at my hand and start direct racially abusing on me that paki you get all the food and don't use turnstiles before ours and don't take food from ours and you will get food outside, someone left outside at Table and also repeating the racial hatred abuse again and again (see page 16, from preliminary hearing bundle.) Also I been target and abused at the turnstiles by group of guys and offered me hatred and violence such like that if I say any word, they were ready to attack on me and telling me that fucking paki taking all the foods from ours and finishing ours foods and go get outside someone let on the table leftovers foods and don't back again and we not want to you in here and not like you what race religion and nationality you have and also look like LGBT person..” Claimant’s evidence in cross examination

[37]In response to cross examination, the claimant confirmed that there was five guys, and two of them namely, Mr DT & Mr ST made the alleged remarks. In reply to a cross examination question that his accounts of the incident and alleged remarks made have repeatedly differed, the claimant explained that the written complaint first made was in short form and what is stated in the Claim Form is in full form. The reason why the written complaint was not written in full is because he suffers from memory loss and therefore is not always able to record fully the incident or what is spoken at that time. He therefore adds information as and when he remembers the incident.

[38]With reference to the alleged words, “paki Muslim”, first referred in his further information submitted on 15 January 2024, the claimant denied making these words up. His explanation for not stating these words in his written complaint, or Claim Form or witness statement (except for the word “paki) was that he suffers from memory loss and that he cannot always remember what happened at the time, and therefore remembers matters much time later.

[39]In reply to a question from the Judge, the claimant stated that he gave a “short story” in the investigation meeting about the incident. He was not able to give a full account as at that time he was emotionally and mentally disturbed, and also suffers from memory loss that prevents him from confirming the incident in full.

[40]In reply to a question in cross examination, how would Mr ST & Mr DT have known that he was Muslim, the claimant said, “because of my physical appearance they would know”. He confirmed he had not spoken to either Mr ST or Mr DT, and that he did not know their names.

[41]In relation to the investigation notes, the claimant claimed he did not agree with the notes of the meeting. He claimed he did say in the meeting that he was racially abused in the incident. He did not read the meeting notes; these were left for him in the canteen to sign, and was not given a copy. He did not see these notes until this hearing.

[42]As for the incident he re-confirmed he was confronted by 5 guys at the turnstile, and two of them made the alleged remarks to him repeatedly five times. He was asked to recall the exact words spoken in cross examination. He replied “he was not able to do because of his memory loss”. Respondent’s evidence

[43]Both of the respondent witnesses (Mr ST & Mr DT) gave their evidence consistent to their statements. The Tribunal found them to be reliable and honest. (ii) Incident - 29 August 2023

[44]On 29 August 2023, the claimant wrote an email to the respondent. It appears this was to Molly Dawson (Talent & Acquisition Manager of the Respondent). He wrote, “ Hi I am interested in the van driver position at greencore and had discussed with you before regarding this, can you tell me about the assessment please as you told me that will be at last week or this week. Please update me regarding this.” Regards. (p98)

[45]This email, was followed up by the claimant sent on the same date at 5.29pm in which he wrote, “Hi I am still waiting for yours response and it would be more better to apply direct through greencore as the job am talent staff behaviours is not good to me due race and religion base.” (p98)

[46]In an email sent by the claimant to Molly on 30 August 2023, he disputed being late for his shifts, which is the reason why his employment was terminated. In that email, he complained about the behaviour of Mr Stefan Panciuc. He stated, “He was always degrading me morally racially and religiously wise. Therefore I'm requesting it would be better to go direct through the greencore instead through agency as their behaviours and action not good towards me and then I was racially abused with hatred at turnstyle and I reported to the greencore... (p97)

[47]On 7 September 2023, Molly replied to this email and stated, “ Thank you for your e-mail. I have forwarded your grievance to the management team at Job & Talent who will investigate your statement. Unfortunately I am unable to act on this as you were not a Greencore employee this will have to be resolved through the agency your worked for.” (p95)

[48]Following this email exchange the claimant made no complaint about this alleged incident until he raised this in his Claim Form, presented on 5 January 2024, in which he wrote, “ …then I applied for driver job direct to the Green core as vacancies available and one of the Manager who signed the letter by force, told me that you just start work and now getting job with us regularly we never give job as you are not white, and on another occasion I was trying again and again and speaking to the recruitment manager Molly during one of the white manager start staring me and staking me and Molly wondered and look at me, that he looked at you very bad eye and then asked why you here and I told him that I'm applying direct to green core driver job, say no job for you and don't come again here for permanent job.” (p10)

[49]On 12 January 2024 the claimant sent an email to Molly in which he wrote. “ Hi as I have been target and abused and discriminated by yours Green core employees, and the person(name) who target and abused me racially and religiously at the turnstiles and also the transport manager name who telling me you just started and want a permanent job with ours, not possible, then the two managers name of the green core who pressurised me and signed the letter to dismiss the case against the person who target and abused me, racially and ethically with the help of two job and talent employees, need that two person name and also I know the Amir, and also the red coat big man white person supervisor name, working inside cold room. As I have put on court the case. And court had asked me their names by 16th January 2024. So please provide me with the names of these Green core employees as I need by 16th of January 2024.” (p95)

[50]In an email to the Tribunal dated 15 January 2024, in which the claimant complained about other alleged incidents and the conduct of others in the workplace, and there being a white and European mafia in the warehouse, the claimant stated as follows about the job application, “ And then I applied to the Greencore direct for driving job and they had advertised at the board and the driving team managers told me that you come just new and want direct employment with us, no we only employ white and then European and then Indian and then others. Go back and do your job and not ask for again and then I was contacting with Molly who is recruiting managers and during break I get to the office of her during that one of the manager came to me, and staring at me very badly and interrupted trying to speak to me but I was ignoring him and telling me what's for you come here no direct job in here for you….” (p16-17)

[51]At a Preliminary Hearing for case management held on 10 December 2024, the claimant identified Mr Carl Lake (Transport Manager) to be the alleged discriminator. EJ Gidney, in the record of this preliminary hearing recorded at Para 4.6 “…It was only in the course of today’s hearing that the claimant identified Mr Lake as the alleged discriminator i.e the Manager who said the respondent does not give driving jobs to people who are not white…” . Claimant’s evidence of the witnesses at this hearing

[52]The claimant, in his witness statement stated, “..As I was looking for permanent job with Greencore and there was some vacancies advertised and I want to apply for van driving job and speak to Molly in her office and during that one of the Manager staring at me and was very wondering; why I am here applying for driving position and Molly look toward me but how he next to you and staring at you and want to say something to you and then I asked me what’s for you here to get permanent job with ours, no permanent job you.”

[53]In cross examination, the claimant said he was not sure the date of this incident. He could not remember. The version of the incident he gave to the Tribunal in cross examination was as follows. At the time of the incident he was with Molly in her office. Her office is on the ground floor of the warehouse next to an office occupied by the HR team. That Mr Lake came to find him, and found him standing next to Molly. Mr Lake then asked Molly why the claimant was there. Molly explained he was applying for a driving job. Mr Lake talked with Molly, and as he left, he told him there was no permanent job for him.

[54]In cross examination Miss Thompson asked the claimant why he had not raised a complaint about this incident in his emails with Molly; and not named Mr Lake as the Manager in the Claim Form or even in his witness statement. The claimant replied it was not the right time to complain in his emails to Molly, and that at the time he presented his Claim Form he did not know the name of Mr Lake. Miss Thompson asserted to the claimant that he identified Mr Lake’s name from the respondent’s Grounds of Resistance. The claimant replied he had been given Mr Lake’s name by the agency as one of the Managers, and that he had spoken to Mr Lake sometime in June. Mr Carl Lake’s evidence

[55]Mr Lake explained he is of mixed race (white black Caribbean) and that he was employed with the respondent from around June 2023 to January 2024 as Transport Manager. He conducted the investigation meetings with Mr ST & Mr DT on 24 August 2023 in relation to the incident of 20 August 2023 with the claimant.

[56]Mr Lake confirmed he did not ever meet, speak with or engage with the claimant during his time working at the respondent’s site.

[57]In relation to the allegation made by the claimant, Mr Lake said he first became aware of this allegation against him was when he was contacted to provide a witness statement to this claim. He strenuously denied the allegation made against him and disputed that he ever met the claimant as claimed. Mr Lake could not understand why he has been named when he has never met or knew who the claimant was. Mr Lake also confirmed that he would not ever make such offensive statement as alleged. The Legal Framework Race Discrimination

The Legal Framework

[58]Section 39 of the Equality Act 2010 provides that an employer must not discriminate against an employee of his by, amongst other things, subjecting him to a detriment.

[59]Section 13 of the Equality Act 2010 provides that a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic (race in this case) A treats B less favorably than A treats or would treat others.

[60]Section 23 of the Equality Act 2010 provides that on a comparison of cases for the purposes of s13, there must be no material difference between the circumstances relating to each case. In other words, the relevant circumstances of the complainant and the comparator must be either the same or not materially different. Comparison may be made with an actual individual or a hypothetical individual.

[61]Bad treatment per se is not discriminatory; what needs to be shown is worse treatment than that given to a comparator.- Bahl v Law Society

2004 IRLR 799

(CA) Unreasonable behaviour alone cannot found an inference of discrimination but if there is no explanation for the unreasonableness, the absence of an explanation may give rise to this inference of discrimination. The Court of Appeal said that proof of equally unreasonable treatment of all is one way of avoiding an inference of unlawful discrimination, but it is not the only way. At paragraph 101 Gibson LJ said quoting from Elias J in the EAT in the same case; “ The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made.”

[62]The fact that a claimant has been treated less favourably than an actual or hypothetical comparator is not enough to establish discrimination. Something more is required, In Madarassy v Nomura International Plc

(2007) ICR 867

, Mummery LJ said; “ The base facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, a sufficient material from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”

[63]In determining whether discrimination has taken place, the Tribunal must enquire as to the conscious or subconscious mental processes which led the alleged discriminator to take a particular course of action in respect of the claimant, and to consider whether a protected characteristic played a significant part in the treatment. (Nagarajan v London Regional Transport and others

(1999) ICR 887

(HL) The burden of proof

[64]Section 136 of the Equality Act 2010 sets out the burden of proof that applies in discrimination cases. Subsection (2) provides that f there are facts from which the Tribunal could decide, in the absence of any other explanation, that person (A) has contravened the provisions concerned, the Tribunal must hold that the contravention occurred. However, subsection (2 ) does not apply if A shows that A did not contravene the provision.

[65]In Barton v Investec Henderson Crosthwaite securities Ltd

(2003) IRLR 332

, the EAT set out the guidance to tribunals on the burden of proof rules then contained in the Sex Discrimination Act 1975. This was approved by the Court of Appeal in Igen Ltd and others v Wong and others

(2005) ICR 931

[66]The conventional approach involves a two stage approach by the tribunal. At stage 1 the question is; can the claimant show a prima facia case? If so, then the tribunal moves onto stage 2 and asks itself; is the respondent’s explanation sufficient to show that it did not discriminate.? Time limits in discrimination cases

[67]Subsection 18A(1) of the Employment Tribunals Act 1996 provides that, “Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter”.

[68]Section 207B Employment Rights Act 1996 describes how time limits are affected by early conciliation. In summary;(i) where early conciliation commences after the time limit has expired then the time limit is not extended;

(ii) where early conciliation commences before the time limit expires then the claimant will have at least a calendar month from the end of the conciliation (“Day B”) to present the claim;

[69]Section 123 Equality Act 2010 deals with the time limits in which claimant’s must present discrimination complaints to the Employment Tribunal and provides as follows: (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of- (a) the period of three months starting with the date of the act to which the complaint relates or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

[70]Therefore Section 123 provides that proceedings must be brought “within a period of three months starting with the date of the act to which the complaint relates or any such period as the Tribunal considers to be just and equitable.”

[71]If a complaint is not issued within the time limits provided for by Section 123 Equality Act 2010, a Tribunal is required to go on to consider whether it is “just an equitable” to allow time to be extended and the complaint to proceed out of time.

[72]The “just and equitable test” is a broader test than the reasonably practicable test under the Employment Rights Act 1996. The burden is on the claimant to persuade a Tribunal that it is just and equitable to extend time. (Chief Constable of Lincolnshire Police v Caston

[2009] EWCA Civ 1298

). The Tribunal discretion is broad and it can only be challenged where it is wrongly exercised or perverse.

[73]In the Court of Appeal case of Robertson v Bexley Community Centre

(2003) IRLR 434

. Auld LJ said, “ The tribunal, when considering the exercise of its discretion has a wide ambit within which to reach a decision. …. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against the tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect.”

[74]In Adedeji v University Hospitals Birmingham NHS Foundation Trust

(2021) EWCA Civ 27

Underhill LJ said, “ the best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just an equitable to extend time including in particular the length of and the reasons for the delay. If it checks those factors against the list in British Coal Corporation v Keeble

(1997) IRLR 336

well and good; but I would not recommend taking it as the framework for its thinking.” Analysis and Conclusion

[75]Given that there is a jurisdictional time point relating to the two incidents, the Tribunal took the approach to first determine if the complaints were proven and then consider the jurisdictional time point, if required. Based on the documentation presented and evidence heard, the Tribunal came to the conclusion, for each of the two complaints, as set out below. (i) Complaint - 20 August 2023.

[76]An incident did occur on 20 August 2023 at about 6pm involving the claimant and 4 male persons. Two of these employees were Mr ST and Mr DT, who are brothers. They are drivers and employed by the respondent. At about 6pm, the claimant was returning from the on-site food shop. This shop sells food, (which is coming to the end of its sale date), to employees at a reduced price. The general rule (not disputed by the claimant) is that only one meat item is permitted to be purchased at any one time by any individual.

[77]The claimant was walking towards the turnstile to exit the work area to go home. In his hands he had several food items which included multiple meat items. The claimant admitted that he had multiple meat items in his hands although he mentioned that he was also carrying other food items. Upon approaching the turnstile from the opposite direction, the claimant came into contact with a group of workers, which included the Mr ST and Mr DT. Neither the claimant or the workers (i.e guys referred to by the claimant) had previously met or knew of each other. As they came face to face, Mr DT admitted he made a remark to the claimant. He said words to the effect, “ effin hell son you’ve done well”. His explanation for making this remark was that he was surprised the claimant had multiple meat items when the rule was that only one meat item was allowed to be purchased.

[78]The Tribunal preferred the evidence of Mr DT about this incident. The Tribunal found him to be a honest and credible witness. He did not deny saying the words he did. The words spoken were made spontaneously given that he had multiple meat items. The Tribunal also accepted Mr DT’s evidence that the remark made was not in any way consciously or unconsciously motivated by the claimant’s race. Mr DT did not know or had any idea about the claimant’s race or that he was Muslim. He further confirmed in evidence that looking at the claimant he would not be able to identify his race or that he was Muslim.

[79]The Tribunal was satisfied that the words spoken were those confirmed by Mr DT, and not what the claimant has alleged was said, which versions have differed on each occasion he has asserted what is alleged to have occurred. Further the remarks made had nothing to do with the claimant’s race. It is clear the context to the words spoken was in reference to the number of meat items in the hands of the claimant. The Tribunal is satisfied that Mr DT would have made the same remark to an individual of a different race in the same circumstances.

[80]The Tribunal found the claimant’s evidence about this incident to be unreliable for the following reasons.(i) The claimant’s account has been inconsistent. The claimant did not mention the alleged racist remarks “paki”, and “Paki Muslim” in his written complaint or at his investigation meeting, when these would have been fresh in his mind. Neither were these alleged remarks expressly mentioned in the Claim Form submitted on 5 January 2024. The first time the claimant asserted these racist remarks had been spoken to him was some 5 months later, in his email to the Tribunal dated 15 January 2024.

(ii) Given the claimant’s strong views on discrimination as demonstrated in evidence and the documents contained in the bundle, had the claimant been subjected to these alleged racist remarks, he certainly would have included these in his written complaint, repeated them at his investigation interview and in the Claim Form. He would not have waited some 5 months to do so.

(iii) In his written complaint he claimed only one person made the remarks yet in his subsequent accounts including in his witness statement he has maintained there were two persons who made the alleged remarks, when in fact it was only one (i.e Mr ST). Also in terms of the number of persons present in his written complaint and investigation interview he confirmed there were four guys, yet in evidence he asserted there was a group of five guys.

[81]The Tribunal therefore concluded the words spoken by Mr DT were as he stated and that the claimant was not called a “paki” or “paki Muslim” by anyone. These words have been introduced by the claimant after issuing the Claim Form to strengthen his claim. On the basis of this finding, the claimant failed to establish a prima facie case for the burden to shift to the respondent. Accordingly, this complaint was not well founded and was dismissed (ii) Complaint - 29 August 2023

[82]The Tribunal concluded that Mr Carl Lake was not the Manager involved in this alleged incident, if this incident occurred at all. There was no evidence before the Tribunal to conclude or even infer that this incident did occur.

[83]The Tribunal accepted Mr Lake’s evidence that he had never met, spoken or engaged with the claimant at all. The Tribunal found Mr Lake to be a credible and honest witness. The Tribunal also found it is highly unlikely that anyone would have spoken to the claimant as alleged.

[84]The Tribunal found the claimant’s account of this alleged incident to be unclear and uncertain for the following reasons(i) The first time the claimant raised an issue about this alleged incident was in his Claim Form some 4 months after the alleged incident. No complaint was made to the respondent in his email exchanges with Molly Dawson from 29 August 2023 despite the fact he claimed that Molly Dawson was present when the alleged incident occurred.

(ii) The claimant in his emails to Molly Dawson after his termination on 29 August 2023 made allegations about the staff at Job & Talent UK Ltd not being good to him because of race religion, but he made no complaint about this alleged incident. Again, given the claimant’s strong views and feelings about discriminatory behaviour, had this alleged incident occurred the claimant would have raised a complaint or mentioned this to Molly Dawson given that he claimed she would have witnessed this. There was nothing preventing him doing so.

(iii) Further, had the incident occurred it is highly probable the claimant would have asked Molly Dawson about the name of the Manager involved. The first time Mr Lake’s name is mentioned is at the preliminary case management hearing before EJ Gidney on 10 December 2024.

(iv) In evidence the claimant stated he was unsure if the alleged incident actually occurred on 29 August 2023. In fact he could not recall the actual date. This admission further undermined the claimant’s allegation.

[85]Based on the Tribunal’s findings this alleged incident did not occur. The claimant failed to establish a prima facie case for the burden to shift to the respondent. Accordingly, this complaint was not well founded and was dismissed

[86]Given the Tribunal’s conclusion it was not necessary for the Tribunal to determine the jurisdictional time point. Approved By

Background

[1]By a Claim Form (ET1) presented on 5 January 2024, the claimant presented claims for unfair dismissal, discrimination on the grounds of race, age, disability, sex, sexual orientation, and religion or belief. All of the complaints were struck out except for the complaint for race discrimination which heard at a final hearing.

[2]At a final hearing held on 15 to 18 December 2025, the complaint of race discrimination was dismissed. Following a request made by the claimant written reasons were provided and sent to the parties on 20 January 2026. The Costs Application

[3]By email dated 12 January 2026 the claimant made an application for costs against the respondent in the following terms, “ I apply for a Costs Order under Rule 76 against the Respondent arising from the unreasonable, intimidating, humiliating and misleading conduct of the Respondent’s solicitor during these proceedings”. The grounds are that Mrs Thompson’s conduct at the hearing was as stated below; a) Used humiliating and degrading language directed at him; b) Adopted an intimidating and harassing tone, seeking to undermine him as a litigant in person c) Misled the Tribunal by relying on irrelevant matters, including reference to a previous unrelated Employment Tribunal claim, in order to prejudice his case d) Took unfair advantage of his unrepresented status e) Made submissions that were irrelevant, prejudicial, and improper, contrary to procedural fairness.

[4]The claimant has asserted the impact of Mrs Thompson’s conduct was as follows; a) The hearing was prolonged unnecessarily; b) He was placed under significant distress and disadvantage; c) Tribunal time and resources were wasted; d) Equality of arms was undermined. The Respondent submissions in reply

[5]In accordance with Rule 75 the respondent were given an opportunity to respond to the application. By correspondence dated 14 January 2026 the respondent submitted their response in the following terms; a) The reference to the respondent solicitor is incorrect as at the hearing the respondent was represented by Miss Thomas of Counsel. b) The allegations made against Miss Thomas are denied notwithstanding the claimant has not given specific details about the alleged conduct. c) EJ Bansal made no criticism of Miss Thomas of her conduct or cross examination of the claimant during the hearing; d) There is no basis to make this application. The costs threshold has not been met and therefore should be dismissed.

The Law

[8]The Tribunal’s power to award costs is contained within The Employment Tribunals Procedure Rules 2024.(” ET Rules”)

[9]Rule 74(1)&(2) provide that a Tribunal may make a costs order on its own initiative or on application of a party where it considers that:(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success.

[10]Rule 75 provides that an application can be made at any stage up to 28 days after the date on which the judgment determining the proceedings in respect of the party was sent to the parties. The paying party must be given a reasonable opportunity to make representations in response, in writing or at a hearing.

[11]Rule 76(1) provides that a costs order may order the paying party to pay(a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;

(b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be pay being determined – (i) in England and Wales, by a detailed assessment carried out either by a county court in accordance with the Civil Procedural Rules 1998, or by the Tribunal applying the same principles.

[12]Rule 76(3) provides that a cost order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000.

[13]Rule 82 provides that in deciding to make a costs order the Tribunal may have regard to the paying party’s ability to pay.

[14]The award of costs is an exception, rather than a rule. Costs are designed to compensate the receiving party for costs unreasonably incurred, not to punish the paying party for bringing an unreasonable case, or for conducting it unreasonably. The assessment of the amount of costs to pay is a broad brush exercise and does not take the form of any sort of detailed assessment of cost. The assessment is made broadly to what would be reasonable in each case.

[15]Lord Justice Mummery stated, at paragraph 31 of his judgment in Yerrakelva v Barnsley MBC

[2012] ICR 420

: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.”

[16]Unreasonable conduct can include an “unreasonably distorted perception of matters” even where that perception is honestly held (Brooks v Nottingham University Hospitals NHS trust

UKEAT/246/18/JOJ

[17]The case of McPherson v BNP Paribas

[2004] IRLR 558

established the need to consider the nature, gravity and effect of the claimed unreasonable conduct. There is no need to show a precise causal link between the unreasonable conduct and the costs incurred.

[18]In Kapoor v Governing Body of Barnhill Community High School,

UKEAT/0352/13

Singh J held that the receiving party does not have to prove that any specific unreasonable conduct by the paying party caused any particular costs to be incurred.

[19]In Dyer v Secretary of State for Employment it was held whether conduct is unreasonable is a matter of fact for the tribunal; unreasonableness has its ordinary meaning and should not be taken by tribunals to be the equivalent of vexatious. This was accepted by the Employment Appeal Tribunal in National Oil Well Varco v Van der Ruit

UKEATS/0006/14/JW

. Analysis and Conclusion

[20]As stated in Paragraph 14 above, the correct starting position is that an award of costs is the exception rather than the rule.

[21]I must have regard to the three stage process, namely;(a) is the cost threshold triggered, e.g. was the conduct of the party against whom costs is sought unreasonable? and if so,

(b) ought the Tribunal to exercise its discretion in favour of the receiving party, having regard to all the circumstances?, and if so,

[22]I first considered whether the cost threshold is triggered under Rule 74(2)(a).

[23]I have had regard to the guidance of Lord Justice Mummery given in Yerrakelva v Barnsley MBC

[2012] ICR 420

. I have determined the threshold test in Rule 74(2)(a) for unreasonable conduct has not been met. My reasons for this are as follows;(i) Miss Thomas conducted the hearing with efficiency, a high degree of competency, professionalism and respect towards the claimant.

(ii) Contrary to the claimant’s uncorroborated assertions, Miss Thomas did not use humiliating and degrading language; adopted an intimidating and harassing tone, misled the Tribunal in any way; made submissions that were irrelevant, prejudicial, and improper.

(iii) I do not find there is any evidence or reason for the claimant to assert the respondent or their legal representatives acted vexatiously, abusively, disruptively or otherwise unreasonably, in the way the proceedings were conducted including at the final hearing.

[24]On the basis the cost threshold has not been met, I do not need to consider the application further. Accordingly, this application is refused. Approved By