Mr H Sehmar v Continental Automotive Trading UK Ltd: 1300808/2022
EMPLOYMENT TRIBUNALS
Case No 1300808/2022
Between
Mr H SehmarClaimantContinental Automotive Trading UK LimitedRespondent
Before
Employment Judge ChildeMr Holland (instructed by counsel) for claimantMs Dalziel (instructed by solicitor) for respondentDate 24 May 2024
JUDGMENT
[1]The complaint of direct race discrimination is not well-founded and is dismissed.[2]The complaint of harassment related to race is not well-founded and is dismissed.[3]The complaint of victimisation is not well-founded and is dismissed. Employment Judge Childe 24 May 2024 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.
REASONS
[1]This case is about the decision by the respondent to refuse the claimant, an IT manager’s, flexible work request to work from home five days a week. The claimant says this decision was an act of direct race discrimination and victimisation.[2]The respondent says it had a good business reason for refusing the flexible work request, which was not connected to race or any protected act done by the claimant. This reason the respondent’s gives is they required a member of IT to be in the workplace every working day of the week to provide onsite IT support in their Birmingham location and there were only two members of IT working in the claimant’s workplace. The respondent therefore agreed that the claimant could work from home on three days and attend the office on two days, with his colleague attending the office on the other working days, to provide onsite IT support.[3]The claimant also brings a claim of harassment, arising from the findings of the respondent in connection with a collective grievance raised by a colleague of the claimant, Heerendra Gohil.
Introduction
[4]We had access to an agreed tribunal bundle which ran to 775 pages including the index and a supplemental bundle which ran to 195 pages.[5]Witness evidence was provided by the claimant himself and from Marian lonicoiu, the claimant’s direct report in the IT department. From the respondent, we were provided with witness statements from Marc Delcroix, regional information officer for Western Europe, Paul Jennings, Managing Director and John Nygard , Head of Finance, Controlling and IT.[6]At the outset of the case, we discussed the issues to be determined. These were agreed at the start of the hearing and are set out in paragraph 11 below.[7]A dispute arose at the start of the hearing about the claimant’s witness statement and additional documentation. The parties had previously already exchanged witness statements and completed disclosure. The claimant wished to introduce a revised witness statement and several documents in a confidential medical bundle after those statements had been exchanged. The claimant’s revised witness statement was almost twice as long as the original statement and had only been provided to the respondent recently. It did not clearly identify where amendments to the original witness statement had been made.[8]After some consideration, Mr Holland confirmed that the new evidence contained in the revised witness statement and the medical bundle was not relevant to the issues the parties had agreed the tribunal had to determine on liability, rather it was relevant to remedy and specifically to the issue of aggravated damages.[9]The tribunal took the decision that the hearing would deal with liability only and there would be a separate hearing on remedy. The tribunal directed that the claimant’s original witness statement would stand as his evidence for the liability hearing as this dealt with the issues in dispute on liability.[10]The claimant’s amended witness statement and medical bundle would not be used at the liability hearing but could be relied on by the claimant at a remedy hearing if the claimant succeeded in his case. The reason for this was the amended part of the claimant’s statement and the documents in the medical bundle related to remedy only. Issues to be determined[11]The issues in dispute are as follows: Direct Race Discrimination (Section 13 Equality Act 2010 (“EqA2010”)a. Did the respondent treat the claimant less favourably that they would treat others because of a protected characteristic (race), by rejecting the claimant’s flexible working request on 20 September 2021?b. The claimant identifies two actual comparators, Carol Robson and Kim Francis, who he says were treated better than him and whose material circumstances were the same as him, other than their race. Harassment related to race (Section 26 EqA2010)c. Did the respondent engage in unwanted conduct related to race, and did the conduct have the purpose or effect of: i.(i) violating the claimant's dignity, or ii.(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant by doing the following: 1. On 12th November 2021, the claimant’s work colleague (Heerendra Gohil) received the grievance outcome report. The respondent confirmed use of the words Indian Bill by senior management but rejected any racism had occurred. Victimisation- Section 27 EqA2010d. The respondent accepts the claimant did the following protected acts: i. On 21st July 2021 the claimant gave evidence against the claimant’s managing director, Mr Paul Jennings, as part of a group grievance submitted on 19 May 2021 about race discrimination submitted via email to Carlos Freymann (Head of VNI Human Relations). ii. Submitted an ET1 complaining of race discrimination on 17 January 2022.e. Did the respondent do the following things: i. On 20th September 2021 the claimant’s flexible work request was rejected by John Nygard. ii. On 30 September 2021 the claimant’s flexible work request appeal was rejected by Paul Jennings. iii. On 28 September 2021, contrary to company policy, the claimant’s line manager was not permitted to attend the flexible work request appeal. iv. On 30 September 2021 the claimant’s flexible work request appeal was rejected. The claimant avers that it was rejected without any proper business reasons or evidence. The claimant avers that no explanation was given to the claimant for declining his flexible work request, nor was he shown any evidence (which he had asked for) supporting their reason(s) used in the rejection letter. Instead, the claimant avers he was asked questions by managing director Paul Jennings, around replacing him with his junior reportee (Marian Ionicoiu). The claimant avers he felt that this was a threat. v. On 6th October 2021, the claimant emailed the respondent a list of questions in accordance with the alleged procedural failures on the handling of his flexible work request. The respondent failed to respond to answer any questions. vi. In or around October 2021, the respondent deleted a recording of the claimant’s grievance meeting (of 21st July 2021) minutes. vii. From September 2018 until October 2021 the claimant was regularly invited to management meetings. The respondent failed to invite the claimant to management meetings from the date of the ‘protected acts’ set out above. From then on the respondent failed to invite the claimant to management meetings other than on 22 September 2022 when the claimant asserts that his presence was essential because the respondent has been a victim of a very serious ransomware attack and another attack was imminent. The respondent recommenced inviting the claimant to management meetings in January 2023 once the amendment application to the ET1 was made.f. By doing so, did it subject the claimant to detriment?g. If so, was it because the claimant did a protected act?h. Have the claimant's claims of direct discrimination and victimisation been brought within three months of the acts complained of, taking into account the effect of the ‘stop the clock’ provisions in respect of early conciliation? (EqA 2010, ss 123(1)(a) and 140B))i. The respondent says any acts which took place prior to 8 October 2021 are out of time.j. If not, was there conduct extending over a period?k. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?l. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: i. Why were the complaints not made to the Tribunal in time? ii. In any event, is it just and equitable in all the circumstances to extend time?
Relevant Law
[12]The relevant sections of the Equality Act 2010 applicable to this claim are as follows: 1. Section 4: The protected characteristics The following characteristics are protected characteristics: … race Burden of Proof 2. Section 136 Burden of proof (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person(a) (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision Direct Discrimination 3. Section 13: Direct discrimination (1) A person (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. 4. Section 23: Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13....there must be no material difference between the circumstances relating to each case.” Victimisation 5. Section 27: Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.” Harassment 6. Section 26: Harassment A person (A) harasses another (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect.” 7. Section 123 Time limits (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 3 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. Harassment Authorities[13]In relation to harassment the following authorities were relevant:[14]Richmond Pharmacology v Miss A Dhalliwell [2009] ICR 724. There are two alternative bases of liability in the harassment provisions, that of purpose and effect, which means that the respondent may be held liable on the basis that the effect of his conduct has been to produce the prescribed consequences even if that was not a purpose, and conversely that he may be liable if he acted for the purposes of producing the prescribed consequences but did not, in fact, do so. A respondent should not be held liable merely because his conduct has had the effect of producing the prescribed consequence. It should be reasonable that the consequence has occurred and that the alleged victim of the conduct must feel that their dignity has been violated or that an adverse environment has been created. Therefore, it must be objectively decided whether or not a reasonable person would have felt, as the claimant felt, about the treatment in question, and the claimant must, additionally, subjectively feel that their dignity has been violated, etc.[15]Pemberton v Inwood [2018] EWCA Civ 564. Underhill J ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)). Direct discrimination and Victimisation Legal Authorities[16]The relevant authorities which we have considered on the direct discrimination and victimisation claims are as follows.[17]Igen v Wong and Others [2005] IRLR 258 and Madarassy v Nomura International PLC [2007] IRLR 246. The employment tribunal should go through a two-stage process, the first stage of which requires the claimant to prove facts which could establish that the respondent has committed an act of discrimination, after which, and only if the claimant has proved such facts, the respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In concluding as to whether the claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the respondent and the claimant.[18]Madarrassy v Nomura International Ltd 2007 ICR 867 - the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the respondent ” committed an act of unlawful discrimination”. There must be “something more”.[19]Nagarajan v London Regional Transport [1999] IRLR 572, HL,-The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?'[20]Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] IRLR 830, [2001] ICR 1065, HL, - The test is what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously was their reason? Looked at as a question of causation ('but for …'), it was an objective test. The anti-discrimination legislation required something different; the test should be subjective: 'Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.'[21]Bahl v Law Society [2003] IRLR 640 – “where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn. It cannot be enough merely that the victim is a member of a minority group. This would be to commit the error identified above in connection with the Zafar case: the inference of discrimination would be based on no more than the fact that others sometimes discriminate unlawfully against minority groups.”
Findings of fact
[22]The relevant facts are as follows. Where we have had to resolve any conflict of evidence, we indicate how we have done so at the material point.[23]The respondent is the regional sales organisation for the UK and Ireland selling a range of products and services produced by Continental Tyres in production facilities outside of the UK. The respondent undertakes some small-scale production of equipment and assemblies at its Birmingham operation using electronic equipment. The respondent’s Birmingham site, at 36 Gravelly Industrial park, is its biggest UK location. This site is the location where most of the respondent’s UK IT infrastructure, including server rooms, is housed and the only site where production takes place. The respondent has four other smaller sites in the UK.[24]At the relevant time there were two members of the IT team based in the UK.a. The claimant who is and was employed as an IT manager based at the respondent’s Birmingham site, but also supporting the other smaller sites in the UK.b. Marian lonicoiu, who was the claimant’s direct report and who was also based at the respondent’s Birmingham site, but also supporting the other smaller sites in the UK.[25]The claimant’s local line manager at the relevant time was John Nygard, Head of Finance, Controlling and IT who was based in the Birmingham site. The claimant reported to John Nygard for all local and operational matters. John Nygard was not an IT specialist but had line management responsibility for the UK IT team of two.[26]The claimant’s functional line manager at the relevant time was Marc Delcroix, Regional Information Officer for Western Europe. Marc Delcroix was an IT specialist, based in Toulouse France. Marc Delcroix’s role was globally focused. He was responsible for ensuring the respondent’s international IT function met their goals and implemented the global IT strategy, projects and tasks. Marc Delcroix met with the claimant weekly in a Western Europe IT Managers’ meeting, and on an ad-hoc basis, to support the claimant to play his part in meeting the respondent’s global IT expectations.[27]The respondent’s IT support is structured so that employees need to raise a ticket first for any IT related issues. Those IT issues are, where possible, resolved by the respondent’s IT team based in Romania, as it is more cost effective to do so. If the IT ticket cannot be resolved by the respondent’s remote team in Romania it gets routed to the UK IT team.[28]The main reason a ticket is passed to the UK IT team is:a. They are hardware related and therefore cannot be resolved remotely.b. They are for systems that are specific to the UK operation, which includes the production electronic equipment in the Birmingham site.[29]During the COVID lockdown in 2020 and 2021 the vast majority of the respondent’s staff, including the claimant, worked from home. John Nygard physically worked in the Birmingham site during this time and part of his role involved supplying staff with hardware so they could work from home.[30]By June and July 2021 most of the respondent’s staff were starting to physically return to work during their working week.[31]The Respondent operated a flexible working policy at this time. Employees were required to be in the office 3 days per week and subject to their manager’s approval, employees could work remotely (i.e. from home) for the other 2 days.[32]On 14 May 2021 Heerendra Gohil raised a collective grievance against Paul Jennings and others, alleging racism. The claimant was not referred to in this grievance (“the Gohil Grievance”).[33]The claimant made a flexible work request on Friday 16th July 2021. The claimant described the working pattern he would like to work in future in his flexible work request as “I would like to be able to continue working from home Monday to Friday with the flexibility to come into the office when necessary.” The claimant went on to say in this request “Should there be an emergency or reason to be in the Birmingham office, traffic permitting I should be able to be onsite within the hour.” The claimant provided no information about why he wanted to work this working pattern.[34]On 19 July 2021, Ludger Trilken, HR Head and Wendy McEwen, Head of HR UK, met with Paul Jennings as part of the investigation into the Gohil Grievance. They told Paul Jennings about an allegation that he had made a comment in work about an individual he described as Indian Bill (“the Indian Bill Comment”). Paul Jennings was not told by Lugar Trilken and Wendy McEwen during that interview which employee had raised the Indian Bill comment as part of the collective grievance.[35]On 19 July 2021 John Nygard sent the claimant’s flexible work request to Paul Jennings and Charlotte Thompson and said “I received this request from Harmesh to continue working from home and I am not sure if this is in line with the company’s time off policy. It allows employee to work 2 days from home and 3 days in the office”, “Harmesh cc’d also Marc to this request” and “Please let me know how should I proceed”.[36]On 20 July 2021 Marc Delcroix sent an email to John Nygard supporting the claimant’s flexible work request, but in this email, he said “Of course, this is my “remote” view, which need to be confronted to the local one.”[37]On 21 July 2021 the claimant met with Lugar Trilken and Wendy McEwen to discuss the Gohil Grievance. The claimant reported the Indian Bill Comment during this meeting.[38]John Nygard was due to go on holiday for five weeks on 22nd July 2021.[39]On 21st July 2021, the day before John Nygard’s annual leave, he forwarded the flexible work request and the e-mail from Marc Delcroix to Paul Jennings and Charlotte Thompson, HR manager. John Nygard asked whether he could approve the flexible work request in this email.[40]John Nygard then had an interaction with Paul Jennings on 21 July 2021. What was discussed between them on 21 July 2021 is disputed. We set out below our findings of fact about what was discussed and why we have reached the conclusion we have. Discussion between Paul Jennings and John Nygard on 21 July 2021[41]John Nygard’s evidence was he took advice from Paul Jennings and Charlotte Thompson about the process to be followed for approving the claimant’s flexible work request. He discussed the responsibility that he had as disciplinary manager to make the decision about the claimant’s flexible work request.[42]Paul Jennings and Charlotte Thompson clarified that Marc Delcroix shouldn't be involved in that decision making process as he was a functional manager based in a different legal entity of the respondent, in France. This was a matter to be decided at local level, bearing in mind the needs of the local UK business in Birmingham.[43]John Nygard was clear in his evidence that Paul Jennings wasn't trying to discourage him to grant the claimant’s flexible work request. However, John Nygard did, fairly, accept that the business was generally advising employees to return to their place of work at this time and the purpose behind the flexible work policy was that employees would be physically in work.[44]John Nygard’s evidence was that he then contacted Marc Delcroix on 21st July 2021 and discussed that the process was he would hear the claimant’s flexible work request and Marc Delcroix would step out of the process.[45]John Nygard sent a teams’ message to Paul Jennings on 21st July 2021 at 2:00 PM explaining this. Paul Jennings responded to say he would hold off sending a note to Mark Delcroix's boss.[46]The claimant’s case is that John Nygard had already approved the flexible working request on 20 July 2021, bearing in mind Marc Delcroix’s support, and he was asking permission from Paul Jennings about whether this was acceptable.[47]The claimant says that Paul Jennings knew that the claimant had given evidence against him in the Gohil Grievance on 21st July 2021 about the Indian Bill Comment and was angry that the claimant was raising a flexible work request on that same day and so set out to sabotage that request by getting heavily involved in the flexible work process on 21st July 2021, including excluding Marc Delcroix from the claimant’s flexible work process.[48]John Nygard’s evidence was he led his own department and made his own decisions. He said that he had contacted Paul Jennings and Charlotte Thompson on 21st July 2021 for advice on the process to be followed for the flexible working request (our emphasis). When he referred to approval in his e-mail what he meant was the process he should follow to approve the request. He wanted to understand the process: such as whether the flexible work request could be via teams, or in person. He also said he wanted to understand what his authorisations were under the flexible work policy.[49]We find as a fact, on the balance of probabilities, the following.a. John Nygard approached Paul Jennings and Charlotte Thompson on 21st July 2021 about the claimant’s flexible work request because he was unsure of the process to be followed and he was due to go on annual leave for five weeks on the next day, 22nd July 2021. The following factors inform our finding on this point: i. We find that the claimant’s flexible work request was the first one that John Nygard had done in the UK. ii. John Nygard was extremely process driven. He considered himself to be a specialist in the detail of the flexible work request policy. He understood the local policy which granted two days working from home, but not the distinction with the statutory framework for flexible work requests. iii. John Nygard didn’t understand the nuances of the flexible work policy and wrongly believed he had no discretion to offer anything other than the 1-2 days working from home offered under the policy. iv. John Nygard’s second language is English and when he used the word approve, in his e-mail to Paul Jennings, he meant what process he should follow to approve the request.b. John Nygard had not already approved the claimant's flexible work request as suggested by the claimant. We have accepted John Nygard’s evidence on this was clear, straight forward and honest.c. John Nygard was the one who took the decision alone to reject the claimant’s flexible working request. He did so because he genuinely believed that there had to be a member of the IT function present in the Birmingham workplace each working day of the week, for the reasons he set out in his outcome letter to the claimant’s flexible work request on 20th September 2021 as we have set out in paragraph 63 below. When was Paul Jennings aware that the claimant had taken part in the Gohil grievance on 21 July 2021?[50]The date that Paul Jenning was aware that the claimant had taken part in the Gohil Grievance on 21 July 2021 is disputed. We set out below our findings of fact about when we find Paul Jennings was aware of this and why we have reached the conclusion we have.[51]Paul Jennings’ evidence was that he couldn’t recall exactly when he found out about the claimant’s participation in the Gohil grievance. However, he was clear that it was after he had decided to dismiss the flexible work request on appeal, which was 3 October 2021.[52]The claimant’s case is that Paul Jennings must have been aware that it was the claimant who had raised a complaint against him about the Indian Bill Comment, because this comment had been mentioned to him by Ludger Trilken and Wendy McEwen during their meeting with him on 19 July 2021.[53]The claimant says that Paul Jenning’s evidence was he had only made the Indian Bill Comment to the claimant, and not anyone else at the respondent. The claimant’s case was therefore Paul Jennings must have put two and two together on 19th July 2021 or on 21 July 2021 after the claimant had attended the Gohil Grievance meeting, and realised it was the claimant who had raised the Indian Bill comment as part of the Gohil Grievance.[54]Paul Jennings denied that he had had this thought process at the time. Paul Jennings’ evidence was he didn’t realise that it was the claimant who had raised the Indian Bill comment on either 19 or 21 July 2021. Paul Jennings’ evidence was that he had possibly said the Indian Bill comment to Mr Gohil during the COVID period and not just to the claimant. Paul Jennings also said he didn’t think that the claimant had been upset about their discussion about the Indian Bill Comment at the time and so had no reason to suspect the claimant would raise a grievance against him, without being explicitly told.[55]We find on the balance of probabilities that Paul Jennings did not know on 21st July 2021 or indeed until after 6 October 2021 that the claimant had given evidence against him in the Gohil Grievance.[56]The information he was told at the time by Ludger Trilken and Wendy McEwen was that Mr Gohil had raised a grievance against him. The claimant was not mentioned. We find, in the absence of being told or any other evidence to suggest otherwise, there was no reason that Mr Jennings would reach the conclusion that the claimant was involved in the Gohil Grievance at all at this time. Paul Jennings had no reason to think the claimant was upset about the Indian Bill Comment.[57]We find John Nygard contacted Marc Delcroix quickly, on 21 July 2021, to explain he would make the decision about the flexible work request and that Mark Delcroix should keep out of it because he believed that was the correct process and because he was going on holiday the following day and wanted to get the matter resolved before he went off on holiday.[58]We've accepted John Nygard’s evidence on this point which was clear and straightforward. It was also consistent with the evidence Marc Delcroix gave to the tribunal about their discussion. John Nygard and Marc Delcroix gave consistent evidence that Marc Delcroix was not to be part of the flexible work request process as this was a local, not a functional issue and Marc Delcroix didn’t have local knowledge. John Nygard and Marc Delcroix agreed about this.[59]We find that things moved quickly on 21st July 2021 because John Nygard wanted to get this clarified before his five-week holiday which was due to start the next day.[60]We’ve therefore accepted John Nygard and Paul Jennings’ evidence that Paul Jennings was not seeking to influence the outcome of the flexible work request on 21 July 2021, rather he was seeking to ensure that John Nygard followed correct process. We reject Mr Holland’s submission that Paul Jennings wasn't interested in process and therefore that can't have been the reason for his intervention. We find that the respondent had a clear flexible work request process in force at this time and Paul Jennings wanted that process to be followed. The respondent’s employees were expected to return to work from July 2021 and Paul Jennings wanted a consistent approach to be followed on the company’s flexible working arrangements.[61]The claimant agreed that he was invited to attend monthly remote management meetings in his capacity of IT manager in July and August 2021.[62]On 20 September 2021 Marc Decroix emailed the claimant and suggested that he could negotiate with John Nygard to always have either himself or Marian lonicoiu physically present at Birmingham to provide IT support.[63]On 20 September 2021 John Nygard wrote to the claimant and rejected his flexible work request. The reason given for this rejection in the outcome letter was:a. The claimant’s physical absence from the workplace would impact the respondent’s ability to meet employee demand for IT services.b. It would be difficult to provide the necessary onsite support for IT services each working day as the claimant’s direct report, Marian lonicoiu would need to be on site and carrying out the IT function in Birmingham every day of the week, whilst the claimant worked from home.c. IT are needed onsite to deal with issues that occur on an ad hoc basis, including hardware issues.d. The current flexible work policy applies and this provides two days working from home and three days in the office.[64]The claimant was offered the right of appeal.[65]On 20 September 2021 the claimant was invited to attend a management meeting in person. The claimant declined this invitation as it was an in-person meeting and he said he would prefer to join remotely. They respondent wished the claimant to attend in person only and therefore he was not required to attend the meeting.[66]On 21 September 2021 John Nygard emailed Paul Jennings to say the claimant’s attitude in not attending the meeting was annoying him a bit as he felt the claimant should have chosen to attend the office that day and attend the meeting in person.[67]Later that day Paul Jennings replied to say that there was a risk of alienating the claimant if he was forced to attend the office and that a softer approach should be taken. In fact, the respondent took no further action following the claimant’s decision not to attend the management meeting in person.[68]The claimant submitted his appeal to the flexible work request outcome on 21st September 2021.[69]On 23rd September 2021 the claimant was invited to an appeal hearing to discuss the outcome of the flexible work request. The appeal invite letter said, “please also let me know if you would like a fellow worker of your choice to accompany you, so that we can add them to the invite.”[70]On 27th September 2021 the claimant wrote to Charlotte Thompson to request that Marc Delcroix attend the appeal hearing.[71]Charlotte Thompson responded on 28th September 2021 by email and said: “Unfortunately as Marc is your functional manager it would not be appropriate for him to join the meeting. If you wish to be accompanied it should be someone from within our own legal entity. I will set up the Teams meeting so let me know if you want me to add someone else to accompany you.”[72]The claimant attended the appeal meeting to discuss the outcome of the flexible work request with Paul Jennings on 28th September 2021.[73]The claimant’s appeal was rejected by Paul Jennings on 3rd October 2021. The reason Paul Jennings gave for rejecting the claimant’s appeal into the flexible working outcome was:a. There was an increasing number of people returning to the Birmingham workplace over the coming weeks who would need IT support.b. Paul Jennings said he had considered the original reasons for rejecting the claimant’s flexible work requested and these remained valid. Paul Jennings identified those reasons as: i. Firstly, the detrimental impact on meeting customer need. Paul Jennings confirmed that the customers were all employees within the respondent’s UK legal entity including the HR team and the production facility in Birmingham. ii. Secondly, the ability to rearrange the work with others. Paul Jennings said: There are two people in the IT team in our legal entity who are required to give support to the whole team, which can include hardware support that is planned or at very short notice. It would be unreasonable to expect the second person to not have the flexibility of working from home one or two days a week as this flexibility is being given to most of our organisation.[74]Paul Jennings went on his letter to propose a compromise, for a trial period of six months, where the claimant worked from home for two to three days per week and attended the workplace for two days.[75]The claimant did not accept Paul Jennings’ offer and instead continued to work from home two days per week and attend the workplace for three days.[76]On 6 October 2021 the claimant emailed Paul Jennings with a list of further complaints about how his flexible work request had been dealt with.[77]Paul Jennings responded to the claimant’s email the next day, on 7th October 2021, and offered to meet with the claimant to clear the air and try and move forward in a positive way. The claimant did not take Paul Jennings up on his offer.[78]On 12 October 2021 Heerendra Gohil received the outcome to the Gohil Grievance. In this outcome, the respondent accepted that the words Indian Bill were used by Paul Jennings but concluded that racism had not occurred.[79]The claimant first contacted ACAS on 7th January 2022 and an ACAS certificate was issued on 10th January 2022. The claimant’s ET1 was lodged on 17th January 2022. Carol Robson Flexible Work request[80]On 2 August 2021 Carol Robson made a flexible work request and this was dealt with by John Nygard. Carol Robson described the working pattern she would like to work in future in her flexible work request as “I would like to have the flexibility to continue to work remotely and come to the office on an as- needed basis.”[81]Carol Robson is white. Carol Robson’s role was financial controller. She reported to John Nygard only. She did not have to respond to urgent or ad-hoc queries, which required her to be physically present in the workplace.[82]Carol Robson’s flexible work request was not granted as she requested. Instead, on 21 October 2021 she was offered a trial arrangement where she would work one day in the office and four days from home. Kim Francis Flexible Work request[83]Kim Francis made a flexible work request on 14 September 2021 and requested that she work from home five days a week, due to a disability and the need to care for her elderly mother. This was dealt with by John Nygard.[84]Kim Francis is white. Kim Francis’s role was credit controller. She did not have to respond to urgent or ad-hoc queries, which required her to be physically present in the workplace.[85]Kim Francis’ flexible work request was not granted as she requested. Instead, on 19 October 2021 she was offered a trial arrangement where she would work one day in the office and four days from home. Rachna Kumar’s Flexible Work request[86]Rachna Kumar made a flexible work request and requested that she work from home. This was dealt with by John Nygard.[87]Rachna Kumar is of Indian ethnicity. Rachna Kumar’s role was controller. She did not have to respond to urgent or ad-hoc queries, which required her to be physically present in the workplace.[88]Rachna Kumars’ flexible work request was not granted as she requested. Instead, on 26 January 2022 she was offered a trial arrangement where she would work one day in the office and four days from home. Invite to Management Meetings[89]Prior to the COVID pandemic, when management meetings were held in person, the claimant was invited to attend the meeting over lunch to provide an IT update.[90]From October 2021 onwards the claimant was not regularly invited to management meetings.[91]We have accepted that the reason for this is that the claimant is not part of the UK management team and therefore there is no need for him to attend. Those meetings moved online to teams during the pandemic and since then there is not the same opportunity for the claimant to pop into the meeting in person, during the lunch break as he did previously. We've accepted the respondent’s evidence that on the rare occasions that those management meetings are in person, the claimant is generally asked to attend and provide an IT update. As we have already found at paragraph 65, the claimant declined the offer to attend the management meeting in person on 21st September 2021. Analysis and conclusion Direct Discrimination Did the respondent treat the claimant less favourably that they would treat others because of a protected characteristic (race), by rejecting the claimant’s flexible working request on 20 September 2021? John Nygard rejection of the flexible work request[92]The first issue for us to determine is whether the claimant has proved facts which could establish that the respondent has committed an act of discrimination.[93]John Nygard rejected the claimant’s flexible work request. The claimant has said in evidence that he does not believe John Nygard was racist.[94]It wasn’t put to John Nygard that the reason for the refusal of the flexible work request was race.[95]There is therefore no basis for us to find that John Nygard's decision to refuse the flexible work request was due to the claimant’s race.[96]The only way that the claimant can establish that John Nygard’s refusal of the flexible work request was due to race is if he can establish that Paul Jennings was the controlling mind, exerting influence and requiring John Nygard to make the decision to refuse the flexible work request, due to the claimant’s race.[97]The claimant has not done so. We are satisfied that the reason for rejecting the flexible work request was taken by John Nygard alone, as we have found at paragraph 49.c and was not done because of the claimant’s race.[98]We’ve accepted John Nygard’s evidence that he took the decision independently of anyone else, including Paul Jennings.[99]The comparators that the claimant has identified do not assist him in shifting the burden of proof.[100]Firstly, those comparators, Carol Robson and Kim Francis, were not in the IT team and their material circumstances were therefore different. As we have found in paragraphs 81 and 84, Kim Francis was a credit controller and Carol Robson was a financial controller. They dealt with external customers, rather than internal employees. They were not required to deal with ad hoc tasks from employees immediately in the moment, like the claimant was, and so there was less of a need for their presence in the workplace every day.[101]As we have found at paragraphs 82 and 85 above, those comparators also did not have their flexible work request accepted in full, which suggests they were treated similarly, rather than differently to the claimant. They were both required to attend the office one day per week, which was not what they originally asked for.[102]We would add that, as we have found at paragraph 88, Rachna Kuma John Nygard did allow Rachna Kumar to work from home four days a week which was more than was provided for in the flexible work policy. This evidence suggests that John Nygard was not motivated by the race or ethnicity of the individual when considering a flexible work request but rather on the circumstances of the request.[103]We conclude that the claimant hasn’t shifted the burden of proof because he has not presented evidence which could suggest his flexible work request was rejected by John Nygard because of his race.[104]If we are wrong on this point, we go on to look at whether the respondent has established on the balance of probabilities that John Nygard refused the claimant’s flexible work request for non-discriminatory reasons.[105]We have concluded that the reason John Nygard rejected the claimant’s flexible work was as set out in paragraphs 49.c above. John Nygard genuinely formed the view that an IT presence was required in the Birmingham site.[106]The claimant disagreed with this view, but we find this was a reasonable and genuinely held view. The reason for this was that employees required support with hardware issues: laptops, headsets and screens etc. John Nygard gave evidence about his personal experience of providing limited IT support in person during the COVID pandemic and therefore had first-hand experience of how necessary this was for an IT function and we have accepted this evidence. This work couldn’t be done remotely.[107]John Nygard formed the view that it was not enough that there was simply hardware in the cupboard which employees could help themselves to, as the claimant suggested, and we find this was a view genuinely held and reasonable in all the circumstances.[108]It is common sense that employees want an IT issue to be resolved in the moment, on the ground. This conclusion was also supported by the evidence of Marc Delcroix, who was the specialist IT manager and the claimant’s functional manager. Marc Delcroix said in evidence that whilst there was the global ticketing system for resolving disputes, there was also the reality on the ground. Employees often wanted support immediately with IT hardware issues and this was most effectively dealt with if someone from IT was there on the ground.[109]Marc Delcroix’s evidence was that all sites in France were covered in this way. For this reason Marc Delcroix suggested to the claimant on 20 September 2021 by email that he negotiate a working pattern where either himself or Marian Ionicoiu, the other member of the IT team on the ground in Birmingham, would be on site at any given time to provide IT cover as we have found at paragraph 62 above.[110]We therefore accept that John Nygard was focused on the role, not the person when he rejected the claimant’s the flexible work request. John Nygard formed the view that the claimant was required to be in the office for at least part of the week due to the needs of the respondent’s business and not because of his race.[111]We would add the we have concluded at paragraph 49.a.iii that John Nygard didn’t understand the nuances of the flexible work policy and wrongly believed he had no discretion to offer anything other than the 1-2 days working from home offered under the policy. We’ve accepted at paragraph 49.a.i that this was the first time John Nygard had dealt with the flexible work request in the UK. He was both highly process driven and unfamiliar with the statutory flexible working process. The approach he took, possibly influenced by his finance background, was to dogmatically follow the wording of the policy to the letter and not deviate from it.[112]The claimant did not share with John Nygard the personal reasons he had for requesting full time working from home.[113]Once John Nygard became more familiar with the process, he realised he could exercise his discretion and deviate from the company policy, which he did with Carol Robson, Kim Francis and Rachna Kumas’ flexible work request all of which came after the claimant’s flexible work request. Harassment On 12th November 2021, the claimant’s work colleague (Heerendra Gohil) received the Grievance Outcome Report. The respondent confirmed use of the words Indian Bill by senior management but rejected any racism had occurred.[114]It is accepted by the respondent that this took place. Was this unwanted conduct related to a relevant protected characteristic (race), and did the conduct have the purpose or effect of;(i) violating the claimant's dignity, or(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.[115]The respondent has accepted in submissions that the outcome of the grievance on 12th November 2021 was unwanted conduct and connected to race.[116]We've heard submissions from Mr Holland about the environment that this unwanted conduct might have created for minority ethnic employees of the respondent.[117]However, the claimant has not given any evidence to us about whether the unwanted conduct violated his dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him personally.[118]We have concluded that the claimant has not provided us with sufficient evidence to determine that he felt, subjectively, his dignity was violated or that an intimidating, hostile, degrading, humiliating or offensive environment had been created by the grievance outcome report of 12 November 2021.[119]In the absence of such evidence, we find the claimant was not subjected to unlawful harassment by the grievance outcome report of 12 November 2021. Victimisation- Section 27[120]The respondent accepts the claimant did the following protected acts:a. On 21st July 2021 the claimant gave evidence against the claimant’s managing director Mr Paul Jennings as part of a group grievance submitted on 19 May 2021 about race discrimination submitted via Email to Carlos Freymann (Head of VNI Human Relations).b. Submitted an ET1 complaining of race discrimination on 17 January 2022.[121]The next question for us is did the respondent do the following things: On 20th September 2021 the claimant’s flexible work request was rejected by John Nygrad.[122]Yes, the respondent did reject the claimant’s flexible work request.[123]Not granting the claimant his flexible work request to work five days per week from home was a detriment.[124]John Nygard’s evidence was he didn’t know about the claimant providing information about the Indian Bill Comment being made at the meeting to discuss the Gohil Grievance on 21 July 2021, when he refused the flexible work request, which was on 20 September 2021. In other words, John Nygard’s evidence was that he was not aware of the claimant’s protected act when he made this decision.[125]John Nygard said he only found out about the claimant’s participation in the grievance, when the claimant’s claim was lodged, which must have been February 2022 at the earliest as it not filed with the tribunal until 17 January 2022 (as we find at paragraph 79).[126]We’ve accepted John Nygard’s evidence on this point. He was credible, clear and consistent under cross examination. In his role of Head of Finance, Control and IT he had a high level and global overview of finance and IT matters. He did not micromanage his team in the UK. We’ve accepted his evidence that the matter of the claimant being involved in a grievance was not brought to his attention and would not have been brought to his attention.[127]We’ve found at paragraph 49.c that John Nygard took the decision not to uphold the flexible work request and nobody else.[128]We’ve therefore concluded that John Nygard’s decision not to grant the flexible work request was not because the claimant gave evidence in the Gohil Grievance on 21 July 2021.[129]Even if we’re wrong on that, we have already found at paragraph 110 that the reason the flexible work request was due to the needs of the respondent’s business and not because of his race. On 30 September 2021 the claimant’s flexible work request appeal was rejected by Paul Jennings.[130]Yes, Paul Jennings did reject the claimant’s flexible work request on 30 September 2021.[131]Not granting the claimant his flexible work request to work five days per week from home, was a detriment.[132]We’ve accepted Paul Jennings’s evidence was that he was not aware that the claimant had given evidence against him on 21 July 2021 as part of the Gohil grievance, as we have set out in paragraph 55 above.[133]Having reached this conclusion, we find that Paul Jennings did not refuse the claimant’s the flexible work request because he did a protected act as he didn’t know about the claimant’s participation in the Gohil Grievance at the time.[134]If we are wrong on this, we find the reason Paul Jennings rejected the claimant’s grievance appeal was for genuinely held business reasons. Paul Jennings genuinely believed there was a need for someone in IT to be present in the Birmingham workplace on each working day.[135]We find Paul Jennings’s reason for requiring the claimant to be on site two days a week was:a. The claimant supporting the IT needs of the small production team in Birmingham.b. The claimant being available to support and develop Marian Ionicoiu, who was the claimant’s junior.c. The claimant being able to support legacy hardware such as PCs which couldn’t be serviced remotely.d. It being unfair on Marian Ionicoiu if the claimant worked from home five days a week as this would mean Marian Ionicoiu would have to attend work five days a week.[136]In other words, Paul Jennings decided the claimant’s flexible working request should be refused due to business need and the impact on the claimant’s colleagues. We found Paul Jennings’s evidence on these points to be genuine and supported by the evidence we have heard.[137]The UK entity of the respondent paid for the claimant’s IT services, and we find Paul Jennings was entitled to require the claimant to support the IT needs of the production team when he could. We accept there was a ticket system for IT matters in existence for the global business. However, if there was an urgent need for local support with a machine or piece of IT hardware or software and the claimant had the skills, through his hobby and outside work interests or his IT skills or a combination of the two, it was reasonable of Paul Jennings to ask him to do that work. The claimant argued that there weren’t permanent IT staff on the other UK sites. However, as we have found at paragraph 23 above, they were much smaller than the Birmingham site and they didn’t have a production facility. Furthermore, the server rooms were located on the Birmingham site.[138]The claimant’s insistence that the requirement to carry out IT fixes in production wasn’t his job, because it wasn’t in a service level agreement, with the implication being that this meant he didn’t need to be in the workplace to help fix these issues, was unrealistic and unhelpful to Paul Jennings or the respondent’s business. We find it was reasonable of Paul Jennings to require the claimant to help with production in this way.[139]We accept that Paul Jennings required the claimant to give support and training to Marian Ionicoiu to develop and train him. This couldn’t effectively be done from home. Face to face contact was required. This is why Paul Jennings reasonably required the claimant to spend one of his in workdays in the week with Marian Ionicoiu.[140]We accept that Paul Jennings genuinely believed that if there were legacy hardware or software, or indeed any hardware which required an IT fix, it would be preferable to the respondent’s business if someone from IT was physically there.[141]Finally, we find that Paul Jennings genuinely believed that it would be unfair of Marian Ionicoiu to have to attend the office every day to allow the claimant to work remotely all week. Marian Ionicoiu gave evidence that he would not have been prepared to do this and it was unreasonable to expect him not to have the flexibility all other employees had, to suit the claimant.[142]We reject the claimant’s submission that he was best placed to decide whether he could work successfully from home full time. Part of the claimant’s argument for working from home was he had successfully done so for eighteen months during the pandemic. However, this failed to consider that in July 2021, with the easing of lockdown restrictions, staff were returning to the workplace and required IT support in person, as we have found at paragraph 30 above. John Nygard and Paul Jennings were in the best position to determine this as the claimant did not factor in the impact his physical absence from the business would have on the respondent’s business.[143]Paul Jennings, at appeal, offered the claimant more time working from home than John Nygard had. The claimant was offered an additional day working from home which was more than was in the flexible work request policy and more than he had been offered by John Nygard. This suggests to us that Paul Jennings had a genuine need for the claimant to attend the office but was doing what he reasonably could to reach an agreement or compromise, rather than victimising him for doing a protected act. For reasons which were not clear to us, the claimant didn’t accept Paul Jennings’s offer and instead continued to work from home for only two days a week.[144]Taking the above factual matrix into account, we conclude that Paul Jennings did not victimise the claimant by rejecting his flexible work request at appeal. On 28 September 2021 contrary to company policy the claimant’s line manager was not permitted to attend the flexible work request appeal.[145]Yes, Paul Jennings didn’t allow Marc Delcroix to attend the flexible work appeal meeting.[146]Yes, not having Marc Delcroix at the claimant’s the flexible work request appeal meeting did subject him to a detriment.[147]We’ve already found at paragraph 55 that Paul Jennings didn’t know about the claimant’s part in the Gohil Grievance at the time this decision was taken, so he can’t have decided to refuse Marc Delcroix’s attendance at this meeting for this reason.[148]Even if we are wrong on this point, we find the reason Paul Jennings refused Marc Delcroix’s attendance at this meeting was because it was a local issue, not a functional for the reasons set out in Charlotte Thompson’s email referred to in paragraph 71.[149]We’ve accepted Paul Jennings’s evidence on this and it was broadly consistent with what Marc Delcroix said in evidence. On 30 September 2021 the claimant’s flexible work request appeal was rejected. The claimant avers that it was rejected without any proper business reasons or evidence. The claimant avers that no explanation was given to the claimant for declining his flexible work request, nor was he shown any evidence (which he had asked for) supporting their reason(s) used in the rejection letter. Instead, the claimant avers he was asked questions by managing director Paul Jennings, around replacing him with his junior reportee (Marian Ionicoiu). the claimant avers felt that this was a threat.[150]We found the flexible working request was rejected by Paul Jennings.[151]It is not correct to say, and we don’t agree that the flexible work request was rejected without any proper business reason, evidence or explanation. The claimant was provided with these reasons in the appeal outcome letter from Paul Jennings, as we have set out in paragraph 73 above.[152]We also accept Paul Jennings’s evidence that he didn’t suggest replacing the claimant with Marian Ionicoiu at any point. There was little evidence to support this allegation, and this was a point which was not pursued with much enthusiasm by Mr Holland. We accept the respondent’s submission that Marian Ionicoiu was much more junior to the claimant and could not realistically replace the claimant.[153]We don’t find the claimant was subject to a detriment in connection with this allegation as the claimant was provided with a proper business reason for the rejection of his flexible work request and we find that Paul Jennings didn’t suggest replacing the claimant with Marian Ionicoiu at any point.[154]If we are wrong on the above points, we’ve already found at paragraph 55 that Paul Jennings didn’t know about the claimant’s part in the Gohil Grievance at the time this decision was taken, so the reason Paul Jennings treated the claimant as he did in connection with this allegation cannot have been because the claimant did a protected act. On 6th October 2021, the claimant emailed the respondent a list of questions in accordance with the alleged procedural failures on the handling of his flexible work request. The respondent failed to respond to answer any questions.[155]We do find that the respondent failed to answer questions put to Paul Jennings by the claimant on 6th October 2021.[156]Yes, the failure to answer questions the claimant puts did subject him to a detriment.[157]We’ve already found at paragraph 55 that Paul Jennings didn’t know about the claimant’s part in the Gohil grievance at the time this decision was taken, so the reason for rejecting the flexible work request, or any comments about Marian Ionicoiu can’t have been made for this reason.[158]As we have found at paragraph 76, the facts in connection with this allegation are that the claimant sent a list of questions to Paul Jennings after he had concluded the grievance appeal. We find that these questions were another attempt by the claimant to complain about procedural failings in connection with his flexible work request. Indeed, the claimant said in cross examination he would not let this matter rest until he had answers to the concerns he had about his perception of these procedural failings.[159]Instead of answering those questions, Paul Jennings suggested that the claimant and he meet to have a discussion to clear the air, as we have found in paragraph 77.[160]We find the reason he did so was because the flexible working request appeal process had concluded and there was little to be gained by engaging in any alleged procedural failings in this regard. We find that Paul Jennings intention was to try and establish an acceptable working pattern for the claimant moving forwards. He did not fail to answer the claimant’s questions because the claimant had complained about the Gohil Grievance. In or around October 2021, the respondent deleted a recording of the claimant’s grievance meeting (of 21st July 2021) minutes.[161]Yes, the respondent deleted a recording of the claimant’s grievance meeting on 21st July 2021.[162]Yes, it did.[163]The recording was deleted by Wendy McEwen. No evidence has been advanced by the claimant to suggest that Wendy McEwen deleted this recording because of the claimant’s part in the Gohil Grievance.[164]We find the reason the recording was deleted was because it had been used to type up the notes of the hearing on 21st July 2021 and therefore was no longer required once those notes were typed. The claimant was asked where he wanted to add or amend the notes, but he didn’t put forward any comments. It was not because of the claimant’s part in the Gohil Grievance. From September 2018 until October 2021 the claimant was regularly invited to management meetings. The respondent failed to invite the claimant to management meetings from the date of the ‘protected acts’ set out above. From then on the respondent failed to invite the claimant to management meetings other than on 22 September 2022 when the claimant asserts that his presence was essential because the respondent has been a victim of a very serious Ransomware attack and another attack was imminent. The respondent recommenced inviting the claimant to management meetings in January 2023 once the amendment application to the ET1 ‘f’ was made.[165]The claimant was not invited to management meetings from October 2021 until January 2023, other than on 22nd September 2022[166]Yes.[167]The claimant’s case is that Paul Jennings knew about his participation in the Gohil Grievance on 21 July 2021 and that he victimised him as a result.[168]However, the claimant accepts that he continued to be invited to management meetings in July, August and September 2021.[169]In fact, the respondent invited the claimant to fewer management meetings from October 2021. He was invited to an in person meeting in September 2021 but he chose not to attend in person. We accept Ms Daziel’s submission that when the claimant said he wouldn't attend this meeting in person, Paul Jennings showed no hostility towards him, as we found at paragraph 67 above.[170]We find the claimant’s case is not plausible in connection with this allegation. If Paul Jennings had wanted to victimise the claimant once he found out about his participation in the Gohil Grievance on 21 July 2021, he would have stopped inviting him to meetings from July 2021 and not October 2021.[171]The far more likely explanation and the one which we accept is that the claimant was not invited to management meetings regularly from September 2021 because he was not a member of management, as we found at paragraph 91 above. Meetings were being held over teams rather than in person at this point. Whilst the claimant had previously popped into in person management meetings over lunch, this was no longer possible when the meetings were being held over teams. Therefore, the claimant was no longer regularly invited to such meetings, but he was occasionally asked to attend. It was not because he had done a protected act.[172]We have not upheld any of the claimant’s claims and therefore the issue of time limits is not strictly relevant.[173]However, we do conclude that any alleged acts of discrimination that occurred prior to 8th October 2021 are out of time.[174]The conduct of John Nygard in refusing the flexible work request was done on 20th September 2021. This decision was not part of a continuing course of conduct.[175]The conduct of Paul Jennings in:a. refusing the flexible work request appeal was done on 28 September 2021; andb. subsequently deciding not to answer the claimants list of questions was done on 6th October 2021. This was not part of a continuing course of conduct.[176]The direct discrimination and victimisation complaint connected to these allegations are therefore out of time as they occurred prior to 8 October 2021.[177]We find that the claimant was in discussion with ACAS about his claim on 22nd October 2021 and was carrying out research on the Internet about his legal rights.[178]We find the claimant would have been aware of the time limits at the time.[179]The claimant has provided no good reason why he did not submit his claim at the time and instead did so on 17 January 2022 and we therefore find it would not be just and equitable to extend time in the circumstances.