Dr R Khan v Mondelez UK Confectionery Production Ltd: 1306125/2024
EMPLOYMENT TRIBUNALS
Case No 1306125/2024
Between
Dr R KhanClaimantMondelez UK Confectionery Production LtdRespondent
Before
Employment Judge FloodIn person for claimantMr Platts Mills (instructed by Counsel) for respondentDate 4 December 2025
JUDGMENT
The unanimous judgment of the Tribunal is that the complaints of direct race discrimination; direct religion and/or belief discrimination; race related harassment; and religion and/or belief related harassment (contrary to ss 13 and 26 of the Equality Act 2010 (“EQA”)) are not well founded and are dismissed.
REASONS
[1]The Claimant completed early conciliation in respect of the Respondent between 24 May and 14 June 2024. By a claim form presented on 15 June 2024, the Claimant brought complaints of race discrimination and discrimination on the grounds of religion or belief against the Respondent and appeared to make claims additionally named Respondents, Mr D Wright, and Ms A Berry. The claims as they were made against those additional respondents were rejected by the Tribunal (see pages 16 and 54).[2]The Respondent defended the claims in a response submitted in time on 18 July 2024. It denied discrimination. On 5 August 2024, the Respondent sought further particulars from the Claimant. Following a discussion between the Respondent’s legal representatives and the Claimant on 7 August, the Claimant provided some information in writing. On 9 September 2024, the Respondent sought an order for further information. The Claimant provided further information about his claim on 11 March 2025 (see pages 55-56).[3]There was a preliminary hearing for case management before Employment Judge Dimbylow on 25 March 2025 where particulars of the complaints the Claimant wished to bring were discussed. The final list of issues agreed between the parties, based on that discussion (“List of Issues”) is set out below and referred to throughout the hearing.[4]The final hearing took place over 4 days between 1 and 4 December 2025. The Tribunal delivered its unanimous judgment orally on day 4 dismissing all the complaints made. The written judgment was sent to the parties on 8 December 2025 and on that same date, the Respondent made a request for written reasons. The Tribunal apologises for the delay in the production of these written reasons which was due to absence on pre booked leave.[5]On 31 December 2025, the Respondent made an application for a costs order to be made against the Claimant. This will be addressed separately by the Tribunal. Documents before the Tribunal[6]An agreed bundle of documents was produced for the hearing and where page numbers are referred to above and below, these are references to page numbers in the bundle. At the beginning of the hearing the Respondent made an application to add additional documents which were e mails exchanged between the parties around the production of medical records to which the Claimant did not object. On the second day of the hearing the Respondent applied to adduce a copy of a previous Tribunal decision involving the Claimant. It contended that this was a potentially relevant issue on the basis that the Claimant had indicated he had no experience in Tribunal proceedings and also that there had been a finding in that Tribunal decision that the Claimant had resigned from his employment at Coca Cola at some time in 2019 (which seemed at odds with the evidence that he had given on this to the Tribunal). The Claimant objected to this application, largely based on relevance and the lateness of the application. The Tribunal determined that the Respondent would be permitted to admit this document, on the basis that it could be a document which was necessary for the fair disposal of the proceedings, in particular to issues of credibility and potentially to remedy. The Tribunal offered the Claimant the chance to recall himself to give evidence to address the point, which he declined to do.[7]We also had a Timeline of events prepared on behalf of the Respondent.
The Issues
[8]The issues to be determined by the Tribunal were as follows and as set out at page 62: 1. Direct race discrimination (Equality Act 2010 section 13)1.1 The Claimant describes his ethnicity as “Afghan”.1.2 Did the Respondent do the following things:1.2.1 Not appointing the Claimant to the post of Plant Manager following an interview at the Wrexham Plant on 24 April 2024. AB is the only perpetrator.1.2.2 Not giving the Claimant feedback after not getting the job. AB and DW are the perpetrators.1.3 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 they were treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say was treated better than they were. The Claimant relies on the hypothetical comparator.1.4 If so, was it because of race? 2. Direct religion or belief discrimination (Equality Act 2010 section 13)2.1 The Claimant describes his religion as “a follower of Islam”. They compare their treatment with people who are Christian.2.2 Did the Respondent do the following things:2.2.1 Not appointing the Claimant to the post of Plant Manager following an interview at the Wrexham Plant on 24 April 2024. AB is the only perpetrator.2.2.2 Not giving the Claimant feedback after not getting the job. AB and DW are the perpetrators.2.3 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 they were treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say was treated better than they were. The Claimant relies on the Christian hypothetical comparator.2.4 If so, was it because of religion or belief? 3. Harassment related to race and/or religion or belief (Equality Act 2010 section 26) 3.1 Did the Respondent do the following things:3.1.1 DW blocked the Claimant’s attempt to obtain the role of Plant Manager (race and/or religion).3.1.2 AB made the Claimant unwelcome on a visit on 24 April 2024, including taking him to a derelict building, and taking phone calls when they were talking (race and/or religion).3.1.3 LP, Engineering Manager, did not engage with the Claimant’s questioning and appeared not to want him to be there on 24 April 2024 (race and/or religion).3.1.4 On a tour of the Plant, whilst in the packaging area at about 3.30pm to 4pm on 24 April 2024, the Claimant heard racist abuse (not religion or belief) directed to him by a person whose name he does not know. They said: “We don’t want Pakis at the factory.”
Findings of Fact
[9]In the judgment, the Tribunal has used initials to identify the people listed below rather than their full names in the interests of brevity. Other terms used may also be defined in a similar manner through the judgment. Witnesses and other individuals[10]The following people attended to give evidence on behalf of the Claimant: 10.1.1 The Claimant (‘C’)[11]The following people attended to give evidence on behalf of the Respondent:11.1.1 Ms A Berry (‘AB’), Plant Manager, Respondent’s Chirk site;11.1.2 Mr L Prince (‘LP’), Engineering Lead, Respondent’s Chirk site;11.1.3 Mr P Poulter (‘PP’), Manufacturing Team Leader, Respondent's Chirk site; and11.1.4 Ms R Wells (‘RW’), Respondent’s Employee Relations Adviser.[12]The following individuals were referred to during the evidence:12.1.1 Mr D Wright (DW’), Respondent’s Talent Acquisition Advisor12.1.2 Mr J McNeill, (‘JM’)), Production Team Leader in the Respondent’s Processing area. Credibility[13]As a general comment, we had difficulties in accepting the credibility of the evidence that the Claimant gave on many issues. It may well be the case that the Claimant is entirely convinced that the matters he described took place for whatever reason, and may not be setting out deliberately to mislead or be dishonest. However, we struggled with the plausibility and reliability of much of his evidence. We found his account of the tour of the factory where he states that racist comments were made, were reported by him to PP and that PP dismissed these as banter to be entirely unconvincing for the reasons we set out below. The Claimant’s account of other matters was muddled and inconsistent, for example the account of the alleged notes taken in his car after the interview and what subsequently happened to these. His evidence around the obtaining of medical evidence was also inherently implausible and led us to doubt the Claimant’s account on these matters. The Respondent’s witnesses gave evidence that was more credible and consistent with the contemporaneous documents. All four of the witnesses were straightforward, robust, and convincing Their evidence was internally consistent and broadly consistent with other witnesses and the contemporaneous notes where these were available. The fact that the witnesses were at times prepared to make concessions as to when things could have been done better (for example AW’s evidence about the learning points she had identified) added to the overall credibility of the accounts they gave. For these reasons, where there was any direct conflict of evidence, we tended to prefer the accounts of the Respondent’s witnesses rather than the Claimant’s evidence.[14]To determine the issues, it was not necessary to make findings on all the matters heard in evidence. We have made findings though not only on allegations made as specific discrimination complaints but on other relevant matters raised as background. These findings may have been relevant to drawing inferences and conclusions. We made the following findings of fact on the balance of probability:14.1 The Respondent is a large multi-national food manufacturing company which operates a number of well-known brands in the UK market. It has sites throughout the UK including the sites at Bournville in Birmingham and Chirk in the Wrexham county borough of North Wales. We saw statistics for the breakdown of the Respondent’s workforce by way of ethnicity in a document headed Ethnicity Dashboard at page 137. This indicated that the overall percentage of employees of Asian and Asian British origin was 17% which was higher than the national average in the population gained from the 2021 census of 9%. The Respondent acknowledged that the percentage of employees of a Black and minority ethnic origin in its Chirk site was considerably less than that and it was estimated to be closer to 3-5%. None of the management team at the Chirk site were of Black or minority ethnic origin. The Respondent suggested that this may be down to its geographical location which was rural North Wales and was likely to reflect the overall population in the region. It was put to the Respondent by the Claimant that it restricted its recruitment to this local area which resulted in a low percentage of Black and Asian employees which was denied. We accepted that there was no such restriction on recruitment but acknowledge that the makeup of the workforce in general is likely to reflect the makeup of the local population.14.2 The Claimant is an Afghan national and is Muslim. He has a high level of academic qualification with a degree, master’s and a PHD (obtained from Aston university). His CV (page 140-2) suggests that he has worked in a number of high-profile food manufacturing roles.14.3 A vacancy arose in the Respondent’s Chrik site for the position of Operations Manager (internally referred to as the Section Lead role). This role sat within the senior leadership team at Chirk and was to be one of two managers reporting to AB, the Plant Manager, with the other role being held by LP who was the Engineering Lead. On 21 March 2024 the Claimant applied for the role by sending an email attaching his CV to AB and Ms Penfold (who was AB’s equivalent at the Respondent’s Bournville site) - see page 139. His CV indicated that he was currently employed at Coca Cola in East Kilbride as Factory Manager and had previously worked for other employers such as GSK and Geest, primarily in manufacturing and continuous improvement roles. The Claimant’s CV described his nationality as British and did not include any information about any religious affiliation. The Claimant had seen the role advertised on Linked In and said he was very excited to apply as he had previously worked for Cadbury (now part of the Respondent) as a graduate trainee in 1998 and was keen to relocate from East Kilbride closer to Birmingham for family reasons. He told us he had tried to apply for the role through the online process but that there had been technical issues and had been given the name of the relevant managers, by his nephew who worked in the Bournville plant. Having received the Claimant’s e mail, Ms Penfold sent a further brief e mail to AB, stating “Just to say his nephew Shaheed is a shift automation technician and has an excellent work ethic” (page 139).14.4 AB reviewed the Claimant’s CV concluding that on the face of it, he had good experience with employers such as Coca Cola. On 5 April 2024 AB emailed the Claimant, cc’ing DW in R’s Talent Acquisition Team, thanking him for applying and informing him that she was copying in DW, as his application had not come through the TA team. AB invited the Claimant to an initial Teams call interview on 8 April 2024 (page 150). On 5 April 2024 the Claimant replied to AB confirming his intention to attend the interview (page150).14.5 On 8 April 2024 the Claimant was interviewed by AB and Ms Munane, the Respondent’s People Lead (calendar invite at page 143). AB’s notes are at pages 144-146. We accepted AB’s evidence that this was an informal interview which was designed to get to know the candidate initially and if successful, they would be invited to attend a second interview and on-site tour. She said she was unsure about the Claimant after the first interview as he talked a lot and although said the right things about leading from the front and continuous improvement, she was unsure whether he could deliver. We accepted her evidence that that being conscious that Teams interviews do not always give people the chance to create a good impression, she wanted to give him another chance.so decided to invite him for a second interview.14.6 On 8 April 2024 (the day of the interview) the Claimant sent a follow up email to AB page 149-150), thanking her and Ms Munane for their time and expressing excitement about a potential factory visit to discuss the role in more detail. He also went on to state which areas (within the Respondent) he would focus on, stating that he would be coaching others to improve capability, instilling confidence and leading team development. He mentioned focusing on clear goals and delivering through high performance. He went on to thank the talent team for all of their hard work to date. On 11 April 2024 AB emailed the Claimant (copying DW) asking him to lodge an application through the official portal so DW could formally progress it (page 149). The Claimant responded on 11 April 2024 stating that he had tried to do this but was unable to as the portal did not accept his email address, as it looked like it was already in use. He stated that he was happy to discuss the next stages with “[DW] and the TA team” (page 148-149). On 15 April 2024 DW emailed the Claimant asking for a contact number (page 148), stating that he hopefully could help the Claimant resolve this which the Claimant provided. It is not clear what then occurred, but as C was able to progress with his application, we find it that DW was able to assist C to progress his online application and this was submitted.14.7 On 16 April 2024, the Claimant e mailed AB and Mr Wight to enquire whether he had been selected for the factory visit and to meet the team and asked for salary details and whether relocation was available (page 147). On 18 April 2024 the Claimant again emailed DW (page 161) as follows: ““Hi [DW], hope you and the team are well. Can you please confirm the date and time for the next stage of the process at Chirk? I am really looking forward to meeting [AB] and Rob to discuss how l will be able to do this role successfully. Thanks again for your help and support.” The Claimant said that he had to chase DW and that he was not impressed with the lack of communication and shocked at how unprepared the Respondent was about the recruitment process. However he did not express any of this to DW or anyone at the Respondent and we conclude that the Claimant had a very different expectation of what the process might involve largely based on his own experience of applying for roles and conducting recruitment at other employers.14.8 On 18 April 2024 DW replied offering some dates for the Claimant to attend the second, in-person, interview (page 161). The Claimant replied as follows: “DW, Thursday would be great for me mate” (page 160). On 22 April 2024 DW sent the Claimant full details of the in-person interview page 159). This e mail gave details of the location and stated that it would last approximately 2 hours and would include a factory tour. The e mail further sent links to information about R and some useful interview tips. It concluded by wishing the Claimant good luck. On 23 April 2024 the Claimant replied thanking DW for the information, copying AB and confirming he was “delighted” to attend. He stated that he was looking forward to discussing the role and would prepare case studies of his work. He concluded by repeating his thanks to DW and the TA team for “hard work and support.” The Claimant said, “the process has been excellent and I hope that we will have a positive outcome for both parties” (page 159).14.9 We accepted AB’s evidence that she was starting to have concerns about whether the Claimant was the right person for the job as a result of some of the emails being sent and as the interview got closer and these continued, she had considered cancelling it. She decided to go ahead as felt it was too late and conscious that the Claimant had travelled from Scotland and wanted to give him a chance. Interview and Factory Tour14.10 On 24 April 2024 the Claimant attended a second, in-person, interview with AB and LP. The Claimant alleged that his interview took place in a derelict office. Earlier in the year the Respondent had to move out of its usual offices due to issues with asbestos and RAAC – the building surveyor had condemned the roof – so all office staff were relocated to different rooms around the plant. The interview therefore took place in a temporary office. AB confirmed that there were works being carried out and there were accrow props in place which she acknowledged was not the most pleasant environment but was safe. We also accepted her evidence that she apologised to the Claimant at the time about the office presenting as it did and that all other candidates being interviewed at the time were taken to the same office, until the works were completed and they had moved out of temporary offices.14.11 The Claimant said he was expecting very intensive interviews with AB and the senior team and that as “only one or two candidates were asked to attend” that he felt his chance of getting the job were high. He told us he expected to be asked about his skills and capabilities and that the interview would last around two hours to be followed by a plant tour. The Claimant also in his evidence referred to his expectation that he would be attending an assessment centre for this part of the process. There was clearly a complete mismatch in the Claimant’s expectations of what would be taking place (which was largely based on his own experiences of what the standard processes for recruitment might be rather than any information he had been given by the Respondent) to what the process actually was. The Claimant alleged that AB was not making eye contact with him, asked very brief questions and jotted down notes in a pad and that she made him feel very uncomfortable and unwelcome from the start. The Claimant said that LP joined the interview after about 20 minutes.14.12 AB’s account of the interview was that she collected the Claimant from reception and brought him to the interview room and that LP joined them a few minutes later, after she telephoned him. She stated that as soon as LP entered the room the Claimant started talking at him, not allowing him to speak. She said that as LP was naturally quiet, she had to intervene to allow LP to properly introduce himself and give his background. She told us that she quickly realised that her initial concerns had been right and that the Claimant was not right for the role. She stated that despite these concerns a thorough interview was carried out and said that there was very little substance or depth to the Claimant’s answers – for example, when asked about his safety record at Coca Cola and what the safety KPIs were, he simply stated that the KPIs were “very good”, without being able to explain what that meant or provide any proper examples. She stated that when she pushed further on this, the Claimant continued to respond, “very good” and was unable to give me any figures.14.13 She told us that she reached the conclusion that the Claimant was not operating at the level we were looking for or that maybe he had exaggerated his experience on his CV , stating that when questioned about quality she got similar responses and that the Claimant kept referring to previously held jobs, at GSK rather than his current role at Coca Cola, which gave her the strong impression that he wasn’t actually working for Coca Cola anymore. We were referred to the notes taken by AB of the interview (page 170) in which she made comments about C talking about himself immediately and that he did not give LP the opportunity to introduce himself and give background when he entered the room. AB noted down that the Claimant was production focused and results driven and was focused and had a passion for continuous improvement. She also noted though that there was no depth to answers in particular in relation to the safety record and KPIs where the Claimant was unable to provide any detail. She noted that a similar response was given when asked about quality She also noted that the Claimant talked more to LP than her and that it came across that he was no longer employed at Coca Cola as he talked more about his previous role at GSK.14.14 LP’s account of the interview was that he arrived a few minutes after the interview had started and when he tried to introduce himself, the Claimant kept speaking and AB had to interrupt the Claimant to formally introduce him. He recalled asking the Claimant a question about how he had implemented change to increase reliability, and the Claimant answered with a sense of arrogance and self-importance, as if he was telling them how things should be done. He felt that the Claimant was overqualified for the role – he was coming from a Factory Manager position, and he was now applying for a role that would be considered a step down rather than a step up. He also got the impression that the Claimant was no longer working for Coca Cola. He considered there was no depth to the Claimant’s answers, and then when asked about KPIs, particularly safety, which is something he would expect a candidate to know inside out, the Claimant gave no definitive answer and fluffed around the topic. He acknowledged that the Claimant was productionfocused and results-driven, but that he lacked the coaching and development approach valued by the Respondent. He felt that the Claimant came across as arrogant, with a ‘me, myself, and I’ approach, talked a lot about himself and often directing his responses to him and not to AB. He concluded that the Claimant was not the right fit for the business or the site as his approach seemed hierarchical. He explained that the culture at the Respondent was ‘servant led’ in that management worked for the people, supporting and facilitating colleagues on the shop floor, rather than dictating to staff. LP concluded that the Claimant’s approach seemed more about telling people what to do, rather than coaching and developing them.14.15 We preferred the accounts of the interview given by AB and LP and accepted their evidence which was broadly consistent with each other and consistent with the internal notes taken by AB. The observation that the Claimant talked about himself throughout and that he talked over LP was particularly resonant. During his evidence at the Tribunal the Claimant had to be reminded on several occasions by the Tribunal to allow the witness to answer the questions as he continuously tried to interrupt and cut short their responses. The Claimant also spent much of the time talking about his own experience working for other employers and what he felt that the ‘standard operating procedures’ should be, rather than addressing the issues the Tribunal had to consider. We were also entirely convinced by the explanation of LP and our observations of his evidence at the hearing that he was a quiet and introverted individual who was allowing the Claimant to speak. This entirely explains any perceived lack of engagement.14.16 At the conclusion of the interview AB telephoned a colleague, Mr McNeill to come and collect the Claimant to give him a tour of the Respondent’s site in Chirk. Mr Mc Neill took the Claimant around the processing side of the factory and then handed the Claimant over to PP who carried on with the tour taking the Claimant through the packaging area. The Claimant said that the first part of the tour was excellent and there were no issues. However whilst being shown round the packaging area by PP the Claimant gave evidence that he was subjected to verbal abuse. He gave evidence that it was very busy with people and he heard someone shout “We don’t want Pakis working at the site.” The Claimant also gave evidence that he was shocked at the behaviour and that when he asked PP to challenge the behaviour that PP said it was ‘Banter.’ He said he made a ‘mental note’ of the behaviour.14.17 PP recalls taking the Claimant on a tour but denied that such a comment was made by anyone in his presence. He further denies that the Claimant challenged him and denies that he told the Claimant it was just banter. He gave evidence that he conducts regular tours of the site for various visitors and that in general on those tours visitors do not speak to anyone working on the lines. We also accepted PP’s evidence that the workers on the shop floor would not have been aware that the Claimant was a job applicant and the Claimant could just have easily been a visitor from another part of the business or a supplier, as he often conducted tours for such people. He said that he was always with the Claimant and both were wearing ear plugs due to the noise on the factory floor.14.18 On this significant matter, we prefer and accept in its entirety the evidence of PP and conclude that the comment alleged by the Claimant above was not made. We find this for the following reasons:14.18.1 The first time the allegation of a racist comment was made was when the Tribunal claim was presented on 15 June 2024. The Claimant did not make a complaint that anything had occurred to AB at the conclusion of the tour on 24 April 2024. The Claimant did not mention it when he initially complained to DW on 9 May 2024 (see paragraph 14.22 below) and still made no reference at all to this during subsequent correspondence where the issue of discrimination was raised by him (see below). There were then a considerable number of e mails passing between him and DW and Ms Wells addressing the issue of discrimination and it was not mentioned once. The Claimant did not even make this allegation during a 45-minute conversation with Ms Wells which was specifically to find out why the Claimant felt he had been discriminated against. It is entirely implausible that if the events had occurred as the Claimant now suggests that he would not have mentioned this earlier.14.18.2 Moreover, not only did the Claimant not mention that a racist comment has been made during the tour, in his correspondence and during the investigation discussions, he stated that the tour had been positive (which we touch on below). The Claimant’s account that as a result of what occurred he burst into tears, his family saw how he was affected and he immediately went to the GP to seek medical help because of what happened does not accord in any way with later correspondence. Less than 2 days after these events, he sends a warm and positive e mail and in a further week, he is chasing to see if he has been successful in the process. This does not accord with someone who has suffered racial abuse of the nature now alleged.14.18.3 The Claimant’s account of what happened developed as the proceedings went on. In March 2025 the Claimant provided detail for the first time that he had written his account of what happened on the tour in a notebook when he got to the car. When he was asked for this notebook by the Respondent’s legal representative, he stated that he had thrown the notebook away as he was in a state of anger and not thinking clearly. During the hearing, the account shifted to that he had made a note on a note pad or piece of paper and had inadvertently thrown this away whilst clearing rubbish from the car on returning home. We did not accept this as a plausible or reliable account and conclude that no such note was made.14.18.4 Any suggestion that the Claimant may have heard the comment but PP did not (due to perhaps background noise) which might explain the disparity in evidence, is negated by the fact that the Claimant asserts that not only was the comment made but that PP also heard it and that when C raised it he told the Claimant it was just banter.14.19 At the conclusion of the tour, the Claimant met again briefly with AB who concluded matters with a very brief wrap up. The Claimant did not raise any issue or complaint about the tour to AB at this time. The Claimant gave evidence that he returned to his car, burst into tears, and wrote about the incident in his notebook and we have already addressed our findings about this above. He said he drove home and that his family could see he was upset about what had happened. The Claimant further contended that he was so upset about the incident that he could not sleep and that shortly after this (still in April 2024 he visited his GP and was prescribed with medication). During the legal proceedings the Respondent sought medical evidence from the Claimant about his visits to the GP and we were referred to the correspondence around this which was included in the additional documents submitted on Day 1 of the hearing (see above). We were not satisfied with the Claimant’s explanation that he was unable to get access to his medical records because his GP had told him this was not allowed. Even if this had been the case, the Claimant was later provided with details of the NHS app and how to access such records himself and indeed disclose partial information from this himself. It is clear to us that the information on the app would have shown when the Claimant consulted his GP about his health, but the Claimant has failed to provide such evidence. Therefore we did not accept the account of the Claimant about what occurred at this time.14.20 On 26 April 2024 there was an email from the Claimant to AB in which he stated, (page171): [AB], many thanks again for the opportunity to meet you and your team at Chirk. I really enjoyed meeting with [LP], Jamie and [PP] and having the plant tour allowed me to understand some of the business issues facing the site. There is a major opportunity to develop the people and culture and learning new skills will help the team to grow and enhance their performance. I remain very excited and enthusiastic about the role and l would be delighted if offered the position as it is a great fit.”14.21 On 3 May 2024 the Claimant emailed DW and AB chasing them for feedback about the factory site and interviews (page 159) and again on 8 May 2024 emailed AB seeking the outcome of his application (page 173).14.22 On 9 May 2024, DW called the Claimant by telephone to inform him that he had been unsuccessful in his application for the role. DW gave the Claimant some brief informal feedback as to why he had been unsuccessful. The Claimant sent an email later that day (page 158) as follows: “Hi [DW], thanks for your call today with some feedback which I found very confusing from [AB] about my interview at Chirk. I was asked questions for a team leader role running a morning meeting not any relating to the factory manager meeting at east Kilbride. There was no TA representation and [LP] was not interested in meeting me or discussing the site engineering issues. It was very confusing and I believe that I was not given a fair opportunity in this process. I would like to see the official notes for my interviews especially at Chirk and would like to make a formal complaint. I will be speaking to my legal representative to discuss my options but will await your response to my complaint within 7 days.” There was no allegation of discrimination or of verbal racist abuse in this e mail.14.23 On 9 May 2024 at 2.11pm DW acknowledged the Claimant’s correspondence (page 157). He apologised that the process had not met the Claimant’s expectations and that his concerns would be addressed. He asked the purpose of the Claimant’s legal advice comments and mentioned that during the feedback conversation, the Claimant had indicated that he was accepted another job offer. That same day the Claimant replied, and in this e mail he alleged that he had been subject to “racial discrimination” and would be speaking to his solicitor. His e mail did not refer to any verbal racist abuse (page 156-157) but complained about the office where his interview was held being derelict, that AB prepared had been scribbling a few notes but there was no formal interview. He further alleged that LP did not engage with him which was off putting. He described the process as shambolic He further complained about the delay in letting him know the outcome and that he had accepted another role.14.24 On 9 May 2024 DW emailed confirming that the Claimant’s allegations of discrimination would be taken seriously and treated appropriately (page 155) and asked the Claimant why he had not raised these in the telephone conversation. The Claimant responded stating that it was not for him to highlight discrimination but the duty of employers and stated that he would be starting legal proceedings for discrimination.14.25 On 10 May 2024 AB circulated the Claimant’s complaint to colleagues stating: “Very disappointing to see such a complaint, we would never discriminate against anyone in Chirk, I am very keen to promote diversity and inclusion at site. We will of course cooperate fully in any investigations required” (page 154).14.26 On 12 May 2024 the Claimant e mailed DW (page 176) further complaining of discrimination: “[DW], applying for the plant manager role at Mondelez was very difficult from the start and the whole process was to stop anyone applying so that the job would be given to a preferred person chosen by the senior manager, [AB]. The illusion to advertise roles and to pretend to conduct interview and site visit to Chirk with the intention of not offering the role to the best candidate. I have asked for proper feedback about why I didn't get the role and still waiting for it. My formal complaint last week to Mondelez of corrupt and racist discrimination against my application needs to investigated fully. There is no point having policies in place if they don't get used by the senior manager. I have asked Jess Phillips who is my MP to support my complaint and once we have the information from Mondelez to then ask the employment minister to review everything independently.” The Claimant did not allege that a racist remark had been made to him.14.27 On 13 May 2024 DW acknowledged the Claimant’s correspondence [175] and informed him that his complaint had been passed to the Employee Relations team who would be in touch with him. The Claimant responded on 14 May 2024 stating that he was distressed and unable to sleep and stating that he was planning to bring a Tribunal claim. He also stated: “On my visit to the Chirk plant l did not see any Black or Asian people in any capacity which is very unusual and is not the norm” (page 174). He did not allege that a racist remark was made during the tour of the site.14.28 On 15 May 2024 RW contacted the Claimant by e mail (page 181) to inform him that she would be investigating his complaint and wanted to take a formal statement for him and asked him for his availability. The Claimant responded on 16 May 2024 stating that he had been to see his GP to help with the anxiety and stress. He then added: “I will make a formal statement to my solicitor at Blackfriars and pass a copy to yourself next week. Are you legally qualified to carry out the investigation as I don't have any confidence in Mondelez to do it independently? Once my solicitor reviews the documents and statement then we will start the tribunal process.” He did not make an allegation regarding the racial abuse.14.29 On 17 May 2024 RW replied stating she was sorry the Claimant was unwell and reassuring him that she was independent and qualified. She asked again to talk to the Claimant so that she could support him in investigating his complaint suggesting a conversation or that he submit a written statement if he preferred (page 180). On 17 May 2024 the Claimant e mailed further challenging RW’s involvement (page 179-180) mentioning the post office scandal suggesting that directors and senior managers were not interested in any complaints and refuse to acknowledge the facts of abuse or discrimination. He further added: “It is highly unlikely that you have the authority to sack the individuals from an internal closed shop investigation. Have you taken statements from [AB], [DW] about what happened in the recruitment process? I have been involved in recruitment with CCE and know the standards that are required for first interview and plant visits and the format to follow. My application was treated with contempt and no serious effort was made by the TA team and [AB].”14.30 He sent a further email on 20 May 2024 chasing an earlier subject access request made. In neither e mail was there any mention of the alleged racist comment during the tour (page 179). On 21 May 2024 RW replied confirming she would investigate the matter (page 179) and on 21 May 2024 the Claimant told RW that he had commenced proceedings in the Employment Tribunal (page 178) and suggested that his complaint was not being taken seriously. He did not mention the verbal racists abuse in this e mail.14.31 Following a further e mail exchange where RW encouraged the Claimant to still speak to her regardless of his claim, on 29 May 2024, the Claimant attended an investigation call with RW (see Note of Investigation Meeting at page 185). On that call, which lasted 45 minutes, the Claimant confirmed that he had a number of concerns with the recruitment process, including that there were technical difficulties in applying for the role, that the second interview was not well structured, that there were delays in the process, and that the process was ‘set up’ so that the role would be given to a preferred candidate. The Claimant also raised an allegation of racial discrimination, namely that, when on site for the second interview, he had not seen much diversity in the Respondent’s workforce. When discussing the factory tour the Claimant made no mention of any alleged racial comment and instead it was noted: “got introduced to 2 people who were good and sowed [sic] around processing and other around the packaging area”.14.32 On 30 May 2024 RW interviewed AB (page 187) who gave a similar account of the recruitment process and interview as she did in evidence to the Tribunal, mentioning the Claimant talking over LP and that he was unable to give answers around safety and quality, as his answers were all about production. She further mentioned that the Claimant was directing all his answers to LP. She gave her view that the Claimant was not the right person for the role. She also stated that 3 people had attended a second interview and 2 had gone forward to a third interview but neither had been selected and the role had not been filled. RW also interviewed DW on 30 May 2024 (see page 188). She noted that he had discussed with the Claimant the difficulties he had with creating a profile on the workday system which he had tried to assist him with. He explained that AB had informed him that the Claimant’s answers had not been good and when pressed further his answers were still not strong and so had decided not to take him further in the process. It was noted that DW communicated the decision to the Claimant and gave some feedback (which was that the Claimant’s answers were vague and not solid) and that the Claimant started to complain about the process. He also indicated that feedback was usually via a phone call and not in writing. On 5 June 2024 RW sought relevant information from Ms Murnane (page 189) and LP (page 190). On 6 June 2024 the Claimant emailed RW asking whether statements had been taken from AB and DW (page 192) and on 7 June 2024 RW acknowledged the correspondence and informed the Claimant she should be able to respond to the complaint the following week (page 192).14.33 On 10 June 2024 the Claimant forwarded RW information from ACAS (page 193). On 14 June 2024, RW responded to the Claimant to confirm the findings of her investigation (page 196-199). This confirmed RW;s decision that she could find no evidence to support the Claimant’s allegation of racial discrimination - as regards the tour, the letter provides: “During your second interview you were given 2 tours of the plant, packing and manufacturing which you said was a positive experience”. The letter confirmed that the Claimant’s allegation was that when walking around the site he “did not see much diversity in the people around you.” As regards the Claimant’s allegation that that the “process was to stop anyone applying so that the job would be given to a preferred person chosen by the senior manager”, RW confirmed that the role remained unfilled, an applicant with the right skillset was yet to be found.14.34 Although no discrimination was found to have occurred by RW she did make some recommendations for learning from the business which were communicated on 2 July 2024 (page 200-1). It was suggested that hiring managers use the standard recruitment templates and that candidate communication be improved noting that the Claimant had to chase Talent Acquisition at each stage of the process. AB confirmed that the templates had now been put in place. We accepted the evidence of AB that a candidate was eventually appointed to this role in October 2024 and that person was White British.14.35 The Claimant presented his claim form on 15 June 2024 and in this form the Claimant first made an allegation of racist abuse stating: “I was then taken around the plant and I heard someone make a racist remark about me and didn't want Pakis to work at the site. I was shocked and very upset about the incident but the manager said it was banter and nothing to worry about.” We accepted the evidence of RW that she was completely shocked when she read this allegation as the Claimant had not mentioned this having occurred during their e mail correspondence nor during the conversation. She explained that had this been mentioned, she would have included it in her investigation. In addition she told us she was surprised to see an allegation of religious discrimination, as no mention of religion had been made in any correspondence or conversation that this was being alleged.
The Relevant Law
[15]The relevant sections of the EQA applicable to this claim are as follows: 4 The protected characteristics The following characteristics are protected characteristics: … Race, … Religion or belief;” 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[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.”[26]Harassment(1) 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.” 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) 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. 16. The relevant authorities which we have considered on the direct discrimination claims are as follows: Burrett v West Birmingham Health Authority 1994 IRLR 7, EAT is an example of the proposition that it is for the tribunal to decide as a matter of fact what is less favourable treatment and the test posed by the legislation is an objective one. The fact that a Claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment, although the Claimant’s perception of the effect of treatment is likely to be relevant as to whether, objectively, that treatment was less favourable. Anya v University of Oxford & Another [2001] IRLR 377 - it is necessary for the employment tribunal to look beyond any act in question to the general background evidence in order to consider whether prohibited factors have played a part in the employer’s judgment. This is particularly so when establishing unconscious factors. 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. Madarrassy vNomura 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.” 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?' 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.' 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.” 17. In relation to harassment the following authorities were relevant: 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. Grant v HM Land Registry & EHRC [2011] IRLR 748 CA emphasised the importance of giving full weight to the words of the section when deciding whether the Claimant’s dignity was violated or whether a hostile, degrading, humiliating or offensive environment was created: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” 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)). Conclusion Equality Act 2010, section 13: direct discrimination because of race or religion/belief 18. In order to decide the complaints of direct discrimination, we had to determine whether the Respondent subjected the Claimant to the treatment complained of (which is set out at paragraphs 1.2.1-1.2.2 and2.2.1 –2.2.2 of the List of Issues above and then go on to decide whether any of this was “less favourable treatment”, (i.e. did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances). We had to decide whether any such less favourable treatment was because of the Claimant’s protected characteristic. 19. We applied the two-stage burden of proof referred to above. We first considered whether the Claimant had proved facts from which, if unexplained, we could conclude that the treatment was because of race or religion/belief. The next stage was to consider whether the Respondent had proved that the treatment was in no sense whatsoever because of either protected characteristic. We set out below our conclusions on these matters for each allegation listed in the List of Issues above with reference to each paragraph number where the allegation is listed: Paragraph1.2.1 Not appointing the Claimant to the post of Plant Manager following an interview at the Wrexham Plant on 24 April 2024. AB is the only perpetrator. 20. The Claimant was not appointed to the post of Operations Lead (not Plant Manager as the Claimant alleges in the List of Issues (this role was not vacant and was not applied for by the Claimant), and this was detrimental treatment (see paragraph 14.22 above). We have therefore gone on to consider whether this amounts to less favourable treatment of the Claimant and whether this was because of the Claimant’s race and or because of his religious belief. 21. Firstly we could not conclude that there was any less favourable treatment of the Claimant as compared to any other individual who did not share his race or religion. The Claimant has not identified an actual comparator, although we do know that the candidate that was appointed in October 2024 was white British (see paragraph 14.34). What we do not know is what the relevant qualifications, experience, or performance at interview of that individual was (they had not been appointed at the time of these proceedings having commenced). We have considered whether a hypothetical comparator in the same position as the Claimant but who did not share his race, or religion would have been appointed to the role. In considering that, the individual would have to have been in the exact same position as the Claimant not only in terms of qualifications and experience but also in terms of performance at interview. The question is therefore would the Respondent have appointed to the role, someone who was not Afghan or not Muslim, but with the Claimant’s CV and who had performed exactly as he did at interview. We conclude that they would not. No one was appointed to the role at the time the Claimant was considered for it and the reasons set out by AB (and LP) as to why she did not believe the Claimant was suitable for the role (see paragraphs 14.13-15 and paragraph 14.32) were convincing, rational and non discriminatory in nature. 22. The Claimant has adduced no evidence at all to suggest that the decision not to appoint him to the role was connected to either of his protected characteristics. Firstly in relation to the Claimant’s race, we accept that the Claimant genuinely believes he was not selected due to race as he raises this early on. We were less convinced about his suggestion that religion played a part, as this came up for the first time when submitting the claim form. His claim for discrimination seems to rely solely on the fact that during his tour of the factory he did not see any Black or Asian people (see paragraphs 14.27 and 14.31). The Respondent does not dispute that the ethnic makeup of its workforce is predominantly white and suggests this reflects the ethnic makeup of the local population in rural North Wales rather than any discriminatory motive (see paragraph 14.1). We accept that this is likely to be an accurate explanation and indeed the ethnic makeup of a particular factory (particularly when compared to statistics within the Respondent as a whole) is not evidence upon which we are prepared to make an inference of discriminatory motive. There are very many reasons why a workforce is made up as it is, and it is not a foregone conclusion that lack of diversity in that location of itself shows a discriminatory recruitment practice was being operated. 23. The other evidence which may have been garnered in support of his contention that the decision was racially motivated i.e the fact that a racial slur was made to him on a factory tour has been found not to have occurred so does not assist the Claimant (see paragraph 14.18 above). The fact that the allegation was made and found to have not occurred in fact damages the Claimant’s credibility on other matters. 24. The Claimant appears to largely rely on the fact that he felt there were flaws in the recruitment process which he describes as shambolic and the fact that it did not accord with his own expectations and experience of how a recruitment process for a senior role should take place within his industry. The Respondent itself acknowledged that the Claimant could have had a better user experience, in particular in relation to communication between him and its talent acquisition team (see paragraph 14.34). However this is of itself insufficient for us to be able to infer a discriminatory motive. The Claimant expressed fixed and strident views about how he feels recruitment should be carried out and appears to be unable to accept that his views do not necessarily represent the standard way that this employer carries out its recruitment or indeed is reflective of usual practice. His suggestion that taking references before an offer of employment was made is the usual practice was a little surprising as this does not reflect this Tribunal’s experience of industry norms. However, more importantly as has been stated during the hearing, the Tribunal has not been given the task of assessing and evaluating the quality of the recruitment practices per se as compared to other industry employers. Our task is to consider whether this recruitment decision in relation to the Claimant was discriminatory. We conclude that it was not. 25. We entirely accepted the explanation of AB as to the reasons why the Claimant was not selected for the role (see paragraphs 14.13-15 and paragraph 14.32). She felt the answers given during interview lacked depth and detail which led her to conclude that the Claimant was not operating at the right level. She also felt that the Claimant’s style of management as demonstrated by his answers did not fit with the Respondent’s servant leadership ethos, focused on engaging with people in the shop floor and building trust rather than directing people what they must do. We accepted that the decision was made entirely on merit and suitability for the role and was not related to race or religion. This complaint of direct discrimination is dismissed. Paragraph1.2.2 Not giving the Claimant feedback after not getting the job. AB and DW are the perpetrators. 26. We refer to our findings of fact at paragraph 14.22 above. The Claimant was given brief and limited feedback from DW when he was informed he did not get the role. Clearly the Claimant disagreed with this and felt it was not detailed, but he was given some feedback. He was not contacted directly by AB or given feedback from her, but we accepted the explanation that standard practice in the Respondent was for the hiring manager to provide the decision and feedback to Talent acquisition, who would then give that feedback directly to the candidate. The Claimant has not shown that any other individual who was not of his race or religion would have been treated any differently. We conclude that a comparator would not have been treated differently and would have received feedback in the same manner. There is no less favourable treatment at all. We further add that there is no evidence to suggest that anything that either DW or AB did in relation to the provision of feedback had any connection to race of religion. This allegation of direct discrimination fails. Equality Act 2010, section 26: Harassment related to race and/or religion/belief.
Conclusion
[27]The Claimant also makes complaints of harassment. In order to determine these complaints, we need to decide whether the Claimant was subject to unwanted conduct of the type described; then determine whether the conduct was related to either of the protected characteristics We are then required to consider whether the conduct had the purpose or effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, having regard to:(a) the perception of the Claimant;(b) the other circumstances of the case; and(c) whether it is reasonable for the conduct to have that effect. We set out our conclusions on each matter below: Paragraph 3.1.1 DW blocked the Claimant’s attempt to obtain the role of Plant Manager (race and/or religion).[28]We refer to our findings of fact at paragraphs 14.6 to 14.8. We do not find that DW blocked the Claimant’s attempt to obtain the role. The evidence before us showed quite the opposite. DW assisted the Claimant to submit his application in the right manner, communicated with him about an interview and arranged this with him, provided him with helpful information in links and wished him good luck. The allegation is not made out on the facts and is thus dismissed. For completeness, there is simply nothing to suggest that anything that DW did was in any way related to the Claimant’s race or religion. DW had limited interaction with the Claimant and there is nothing to suggest he had any knowledge of C’s Afghan nationality or his religion as a Muslim. The only indication at this stage, may have been the Claimant’s surname, but even then, there is simply no evidence to suggest that there was any relationship at all in the way DW interacted with the Claimant which at all times was thoroughly professional and helpful. Paragraph 3.1.2 AB made the Claimant unwelcome on a visit on 24 April 2024, including taking him to a derelict building, and taking phone calls when they were talking (race and/or religion).[29]We refer to our findings of fact at paragraphs 14.10 to 14.15 above. The Claimant has not shown that he was made to feel unwelcome by AB when he attended the interview on 24 April 2024. In relation to taking the Claimant to a derelict building, it is correct that the location of the interview was a place where works were being carried out and building materials were on show. AB apologised to the Claimant regarding the location and explained what the reason was. We also found that AB made two phone calls during the interview (one to ask that LP join them at the start and the second at the end to call Mr McNeill to come over and take the Claimant on his tour). However we do not conclude that this amounts to sufficient conduct to make the Claimant unwelcome.[30]Nonetheless we have gone on to consider the remaining questions as to whether the location of the building or the fact that phone calls were made was unwanted conduct related to race or religion/belief. It clearly was not. We accepted entirely the explanation of the Respondent’s witnesses as to why the interviews were being conducted in the location they were. Other candidates interviewed at the time of different races were also taken to the same location. The two phone calls were made to contact people who were also involved in the process that day to alert them that they were required. There is simply no relationship at all between these matters and race or religion and on this basis alone, the claim must fail. Whilst we did not need to consider whether the purpose or effect of what occurred was to violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, we conclude that it had neither such a purpose or indeed such an effect (given our findings of fact about the way the Claimant communicated to the Respondent about the process -see paragraph 14.20 ). This claim is dismissed. Paragraph 3.1.3 LP, Engineering Manager, did not engage with the Claimant’s questioning and appeared not to want him to be there on 24 April 2024 (race and/or religion).[31]We refer to paragraphs 14.14-14.15 above and conclude that this allegation is not made out on the facts as we did not find that LP failed to engage with the Claimant and gave the impression that he did not want the Claimant to be there. There were clearly a number of questions asked and answered by the Claimant during interview, and we conclude that there was considerable engagement between the two as evidenced by both the observations of AB and LP that the Claimant directed much of his answers to LP. We can find nothing to suggest that anything that occurred during the interview itself had any connection with race or religion. In addition, there was clearly neither the purpose of violating dignity etc, nor the effect given the contemporaneous e mails sent by the Claimant. This complaint must fail and is dismissed. Paragraph 3.1.4 On a tour of the Plant, whilst in the packaging area at about 3.30pm to 4pm on 24 April 2024, the Claimant heard racist abuse (not religion or belief) directed to him by a person whose name he does not know. They said: “We don’t want Pakis at the factory.”[32]We refer to our detailed findings of fact about this allegation at paragraph 14.16 to 14.18 above. This allegation is dismissed on the basis that what is alleged did not occur. We do not need to go on to consider the remaining questions of relationship to a protected characteristic or the required purpose or effect. This allegation was dismissed on the facts.