Employment Judge C Knowles, Mr. Hutchinson, Ms. Russell.In person for claimantDate 10 August 2026
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The complaints of direct race discrimination are not well-founded and are dismissed.[2]The complaints of direct discrimination because of perceived disability are not well-founded and are dismissed.[3]The complaints of victimisation are not well founded and are dismissed.
REASONS
[1]The claimant brought complaints of direct race discrimination, direct discrimination because of (perceived) disability, and victimisation. The claimant has not at any time been an employee of the respondent. His complaints arise out of the respondent’s decision to reject his job applications / not to offer him a specific interim role. The respondent denied the claims, and over three and a half days we heard evidence and submissions relating to issues of liability. We reserved our decision and explained to the parties we would send the decision in writing. This document contains our written reasons for our decision. DOCUMENTS AND WITNESSES[2]We were provided with the following documents: 2.1. The respondent’s final hearing bundle (432 pages) (the main bundle). 2.2. Additional documents (added to the main bundle as p433 -439). 2.3. ‘Second’ bundle prepared by the claimant (58 pages). 2.4. The respondent’s supplementary bundle (75 pages). 2.5. The respondent’s cast list and respondent’s chronology. 2.6. Additional documents (added to the main bundle on day 3 as p440-459). 2.7. A witness statement bundle (41 pages).[3]We read witness statements and heard oral evidence from the following witnesses:3.1 The claimant. His witness statement was dated 22 March 2026.3.2 Sarah Griffith, the respondent’s People Director. Her witness statement was dated 20 March 2026.3.3 Ilona Belinska, who is now the respondent’s Head of Technical and Process, but who at the date of the events the claim was about was a Technical Manager. Her witness statement was dated 20 March 2026.3.4 Nick Gollins, the respondent’s Head of Technical since 1 February 2025, but previously providing Interim Technical support from June 2024. His witness statement was dated 20 March 2026.
PROCEDURE
[4]On the afternoon of the first day, the claimant made an application for an order that unless the respondent disclosed specific documents by the end of the day, the response should stand struck out. Having heard submissions, we unanimously rejected that application for the reasons we gave orally at the time.[5]On the first day of the hearing, we also discussed and agreed that we would take a break of around 5 minutes after every 1.5 hours of hearing time. The claimant agreed to let us know if he needed further time to gather his thoughts. The claimant used an unmarked copy of his witness statement printed on pastel paper. The claimant had also requested an adjustment of not being interrupted. The Employment Judge explained to the claimant that whilst the Tribunal would try to avoid interrupting, it may sometimes be necessary for her to interject. She gave examples of situations in which this might be necessary, and ways in which the need for her to interject might be reduced.[6]We agreed on a timetable for the evidence, which each party stuck to (with the Tribunal reminding the claimant when he was half-way through his time for questions to a witness).[7]We had a slightly later start on day 2 due to an unavoidable commitment on the part of one of the members. On the morning of day 3, we were told that the respondent had disclosed further documents to the claimant. This delayed the start of the evidence on day 3. The claimant considered that the documents were relevant and wanted us to see them, but he initially wanted to have most of the morning to consider those documents before he felt able to continue with the respondent witnesses. We allowed the claimant to have some time to read them, but not all morning for the reasons we explained at the time. It was then possible to complete the evidence by the end of the third day, but there was not time to hear submissions. The parties attended on 13 May 2026 and made submissions. The Tribunal started the process of deliberations on the afternoon of 13 May 2026, and we met again on 10 July 2026 to complete our deliberations.
ISSUES
[8]It was agreed that we should decide liability first. The liability issues that we had to decide were those set out in the case management order of Employment Judge Perry following the preliminary hearing on 1 May 2025 (save for some minor amendments that we made at the start of the final hearing to clarify that the question was not whether the claimant was a disabled person but whether he was perceived to be and to correct a typographical error). The list of issues is set out as an Annex to these reasons.[9]In his written submissions, the claimant had referred to a second alleged protected act not identified as something relied upon as a protected act in the list of issues. When asked about this, the claimant confirmed that he was not applying to amend the list of issues and was happy to rely on the one alleged protected act identified in the list of issues.
FINDINGS OF FACT
[10]We have made the following findings of fact on the balance of probabilities. We did not make findings of fact about every matter referred to in evidence before us, only those matters relevant to the issues we had to decide in the case. The respondent[11]The respondent is a dairy company that produces, packs and supplies cheese and butter products to retail customers. Its sites included a site in Nantwich (where cheese was made) and a site in North Wales (where cheese was wrapped and packed for supply).[12]Across the Nantwich and North Wales sites, the respondent had around 460 employees in total. We were not referred to detailed statistics about the race (colour, nationality, ethnic or national origins) of those employees, nor the numbers of employees who had a stammer. Nor did we have statistics about the population local to the respondent’s sites. The claimant asked some questions in cross-examination, particularly directed to the senior leadership team. There were no British Pakistani employees in senior leadership team roles. We were told two permanent employees in the senior leadership team at Nantwich and one permanent employee on the senior leadership team in North Wales were (and this is the terminology adopted by the claimant in his questioning rather than the Tribunal’s terminology) “non Caucasian”. At the date of the hearing, Ms. Belinska was aware of one person she worked with who had what she described as a ‘severe’ stammer. LinkedIn Enquiry in 2017[13]On 17 January 2017, the claimant contacted the respondent’s CEO, Mr. Heler, via LinkedIn asking whether the respondent’s technical department needed support. Mr. Heler replied saying he had forwarded the claimant’s email to the technical department who had put it on file in case they needed any support. He thanked the claimant for getting in touch. Until 2024, this was the claimant’s only interaction with the respondent.[14]By 2024 the respondent no longer held a copy of this email. Ms. Griffith’s evidence on this point is consistent with the fact that it was the claimant who disclosed this message in the litigation and with GDPR and data protection legislation which means that companies would not be expected to retain a message such as this for 7 years. The claimant’s first application to the respondent[15]On 21 February 2024 the respondent posted a vacancy for the role of Technical Manager on the Indeed recruitment website and their own website. The salary advertised was £45,000 - £50,000 per year and the vacancy was to work at the respondent’s Nantwich site. The job post summary stated the essential criteria were: degree or equivalent in Food Science or related discipline; min. 5 years’ experience in FMCG (fast moving consumer goods) or similar environment, and with at least 2 years of managing teams; BRC Compliance and audits aware; up to date knowledge of technical advances and the changing consumer landscape; an interest in the food industry, and especially food safety; ability to develop individuals; diligent and attention to detail focused; organised and able to both multi-task and prioritise effectively; competent in MS Office Suite.[16]The vacancy arose because of the impending retirement of the existing Technical Manager at the Nantwich Site, Adrian Cartlidge.[17]On or around 24th February 2024 the claimant applied for the role via the Indeed website. Under cross-examination, the claimant said he wasn’t able to confirm whether the CV that we had at p87 of the core bundle was the CV that he had submitted to the respondent, saying he had a few versions. At paragraph 4 of his witness statement, the claimant himself expressly referred to p87 as being his CV when talking about the application that he had made to the respondent in February 2024. We find that the CV at p87 was the one he used in each of his applications for employment with the respondent. If he had submitted a different version to the respondent, we would have expected him to have disclosed that and to have ensured that it was included in the bundle.[18]The claimant’s CV referred to the claimant having a “passion for food, rooted in my Pakistani heritage”. The CV also referred to the claimant having “excellent communication skills despite having a stammer”. Whilst anyone reading the CV would have known the claimant had a stammer, they would have understood that it didn’t affect his communication skills to more than a minor or trivial degree. If the claimant’s stammer had any adverse impact on his ability to carry out normal day-to-day activities, a person reading his CV would not have known that, because the CV did not give any further detail.[19]Amongst other things, the claimant’s CV stated that he had a degree in Pharmaceutical Chemistry BSc (Hons). With regards to his career history, his most recent role (suggested to be ongoing at the date of his application because the dates were said to be July 2023 – May 2024) was stated as being “Confidential – Food and Health & Safety Compliance Manager”. Underneath in smaller print were the words: “This role would be referred to as a Regional Technical Manager with food manufacturing”, but the company for whom the claimant was said to be carrying out this role was not identified. In relation to work experience prior to that, the claimant next said he was “Head of Technical / Technical Manager / Business Consultant” between September 2013 – July 2023, and then stated “Below are some of the companies that have been supported over the last several years in all areas of technical, NPD and hygiene”. He then listed 20 different businesses. This was followed by a section that said “achievements include” and a list of achievements / responsibilities, but it was not clear from the CV what role the claimant had undertaken at each of the twenty businesses, how long he had carried out work for each business, or which achievements in the list related to which role. He did provide more specific information in respect of five chemist / pharmaceutical roles that he had held between August 2002 and September 2013. March 2024: not selected (Technical Manager)[20]In March 2024, a BRC audit was taking place at the respondent’s sites in North Wales and Nantwich. This involved a technically focused assessment, and it required significant involvement from the Technical team and the Nantwich leadership team. The Technical team in particular did not at that point have time to continue to actively progress recruitment for the Technical Manager role. We find that the recruitment process was paused on 15 March 2024 for all candidates who had applied via Indeed.[21]Ms. Griffith’s evidence was that by mid-March 2024 “around 105” candidates had applied for the Technical Manager vacancy via Indeed. As part of disclosure in these proceedings, the respondent disclosed three sets of screenshots from the Indeed website. Someone had typed a date to distinguish between the different sets of screenshots, the first being 21 February 2024, the second 8 April 2024 and the third 4th July 2024. These screenshots suggest that a large number of people applied in response to each advertisement. In cross-examination, the claimant suggested that he couldn’t verify what the respondent was saying about how many people had applied because the dates of the vacancies had been “typed on”. However, when he cross-examined Ms. Griffith, the claimant didn’t challenge her evidence about the number of people who had applied in response to the February vacancy. Further, when referring to this application in his own witness statement, the claimant referred to the screenshot that he had copied into his own email to Ms. Walker dated 7 May 2024, which said “Not Selected by Employer. Technical Manager. Joseph Heler Cheese. Nantwich. Applied on 27 Feb. Around 116-120 people have applied on Indeed.” We find that a large number of people applied via Indeed in response to the respondent’s advertisements, and that by mid-March 2024, over 100 candidates had applied for the Technical Manager role. Whilst we were not provided with details of the protected characteristics for each of those candidates, we accept given the numbers of candidates that this will have included candidates who were not British Pakistani and did not have a stammer.[22]The claimant’s application status on the Indeed website changed to “Not selected by Employer” on 15 March 2024. We return to our findings about why this was in our “conclusions” section below. April 2024[23]The BRC audit completed at the end of March 2024. Ms. Griffith spoke to the then Nantwich site Director, Helen George, about the Technical Manager role that Mr. Cartlidge was retiring from. They decided that the scope and requirements of the role were broader than the respondent had initially thought when advertising the role. Mr. Cartlidge had been with the business for a considerable amount of time and when initially advertising the vacancy before the BRC audit the respondent had not realised the full extent of his role.[24]On 8 April 2024 the respondent re-advertised the Technical Manager role on the Indeed website and on their own website, but with pay now advertised as being up to £52,000 per year.[25]In April 2024, Ms. Belinksa reviewed CVs. We accept the evidence that at this time she reviewed a large number of CVs, and sorted them into three piles: low, medium and high. At this time, she considered most CVs were not relevant, and the claimant’s CV was one sorted into the ‘low’ pile. She did put forward two candidates for interview: Adam Lanckmans (AL) and Michael Njini (ML). AL’s CV did not mention a degree, but according to their CVs, both AL and ML were working as Technical Managers elsewhere. In contrast to the claimant’s CV, their CVs named the companies they were working for, AL set out specific “achievements and responsibilities” in his existing and previous roles, and ML set out his “duties” in his existing and previous roles. We were given no information about AL or ML in relation to the protected characteristic of race. Neither CV declared a stammer.[26]Mr. Cartlidge led the interviews of AL and ML on 11 April 2024 and was assisted by Ms. Belinska. Neither AL nor ML were appointed by the respondent.[27]At around this time Ms. Belinksa also reviewed a CV from a candidate (LB) who had been put forward by White & Clayton recruitment agency, but decided not to interview her. We did not have any information about LB’s race. Her CV did not mention a stammer. Interim appointment[28]As Mr. Cartlidge’s retirement was getting closer, Ms. Belinska and Mr. Cartlidge decided it would be sensible to try and recruit an interim option, pending the identification of a suitable permanent candidate. Ms. Belinska spoke to Ms. Walker who contacted agencies in order to identify potential candidates who could be appointed on an interim basis.[29]On 23 April 2024, Ms. Walker emailed Ms. Belinska and Mr. Cartlidge to say that five agencies had presented good candidates for the interim role but after discussing it with Ms. George, the respondent would not pay the day rate for these candidates. Ms. Walker put forward what she said were three options “right now” for interim candidates: Ms. Dzhipova (ID), Mr. Cross (GC) and Paul Segynowwycz. Mr. Segynowwycz[30]Mr. Segynowwycz was a white man. He had approached Ms. Walker on LinkedIn saying he would be happy to cover a contract for the respondent, and he had previously worked with the owners of the respondent. This was clear from Ms. Walker’s email dated 23 April 2024. Mr. Segynowwycz had not applied for the permanent Technical Manager role. According to his CV he had been working on interim contracts since 2012. In contrast to the claimant’s CV, Mr. Segynowycz’s CV clearly set out, in reverse chronological order, the specific roles he had held at named companies, the duration he had worked for the named companies, and a brief overview of his responsibilities / achievements in respect of most of those.[31]On 26 April 2024, Ms. Walker said that agencies were putting forward candidates for the permanent role who were looking for a salary of £60,000 - £70,000, and that if Mr. Segynowwycz were appointed as an interim candidate the respondent would need to reevaluate the adverts, job description and salary bracket for the permanent Technical Manager role.[32]The claimant was not one of the candidates put forward by any of the agencies that the respondent had asked to source a potential interim candidate. He was not interviewed for the interim role. We find that none of the other candidates who had applied for the permanent Technical Manager role via Indeed were interviewed for the interim role either.[33]On 2 May 2024 Ms. Belinska interviewed Paul Segynowwycz for the interim role. She made the decision to appoint him on an interim basis on a sixmonth fixed term contract, starting on 13 May 2024. ID and GC[34]In his witness statement, the claimant suggested that the respondent had interviewed ID and GC (who Ms. Walker had mentioned in her email on 23 April) and that their CVs had disclosed no degree at all, whereas his CV showed that he had a Pharmaceutical Chemistry degree.[35]In his witness statement the claimant asserted that ID was “Caucasian / Polish”. According to ID’s CV she did not have “cheese experience”, and her existing role was as Site Quality Lead (QA Manager) at a (named) food related company. ID’s CV set out her career history in reverse chronological order and, in contrast to the claimant’s CV, made clear what her job title had been at each relevant time / in respect of each employer, and which key accomplishments related to which role. It did not suggest that she had a degree or equivalent in food science.[36]ID, who Ms. Walker had mentioned in her email on 23 April, had applied for the permanent Technical Manager role via Indeed. At an earlier point in the process of recruitment for the permanent Technical Manager role, Ms. Belinska had asked to interview ID but had then rearranged her schedule and in fact ID was not interviewed by the respondent for the permanent role. Nor was ID interviewed for the interim role. She was not appointed to any of the roles that the claimant applied for in this case.[37]According to GC’s CV, his existing role was as a Group Technical Manager in a milk products company. His CV set out his career history in reverse chronological order. Again, in contrast to the claimant’s CV, GC’s CV made clear what his job title had been at each company, and what he had done at each company. It did not suggest that he had a degree or equivalent in food science. GC was not interviewed for the interim role. He was not appointed to any of the roles that the claimant applied for in this case. Technical Services Quality Manager[38]By 9 May 2024, with no permanent candidate yet appointed to the Technical Manager role, the impending retirement of the experienced Technical Manager, and recent audits, Ms. Belinska, Ms. Walker and Ms. George agreed that the specification of the permanent vacancy should include quality functions, including broader responsibilities and a higher level of Technical Competence. The title of the Technical Manager role was changed to Technical Services Quality Manager, although the pay at this stage remained advertised as up to £52,000 per year. Claimant’s contact with Sarah Walker[39]By this point, the claimant had, on 2 April 2024, notified ACAS for the purposes of early conciliation, and obtained a first early conciliation certificate. This followed him having received notification on Indeed on 15 March 2024 that his status was “Not selected by Employer.”[40]On 7 May the claimant emailed Sarah Walker. He said that he had been told that having been notified he was ‘not selected by employer’ had been a ‘mistake’. This was a reference to contact he had received during the early conciliation period. He said the role was still active on the respondent’s website but the link to Indeed appeared to show that the role had expired on Indeed. He said he knew the role had not been filled because he had been contacted by more than one recruitment consultant to discuss the role. He asked the respondent to confirm the status of his application.[41]On 8 May 2024, Ms. Walker replied to the claimant saying that the respondent was still recruiting for the role of Technical Manager, and that “when we pause the job on Indeed it must be seen by the applicant as ‘inactive’ or ‘expired’ but as it says on the tab there are a number of reasons for this – for us, we are still reviewing applications.” Ms. Walker said that the claimant’s CV “is in a pool along with other candidates as a strong contender with relevant background / skill set, we were in the process of contacting applicants so thank you for your direct email. If you are still interested, I can let the Head of Technical know to review your CV and come back to me regarding a decision on an interview.” The claimant replied on 9 May 2024 to say he was still interested in the role. Ms. Walker had not herself been involved in the initial sifting that Ms. Belinska had carried out in April 2024.[42]On 17 May, the claimant emailed Ms. Walker asking whether she was in a position to provide an update, saying he could see she was looking to move on from the respondent and he wished to have his application status clarified and not lost or forgotten about.[43]On 17th May Ms. Walker emailed the claimant saying an ‘Interim’ Technical Manager had joined who had worked for the respondent before, understood the business / product thoroughly and was covering the role on a short-term contract basis whilst they carried on recruiting for a permanent member. This was a reference to Mr. Segynowwycz. Ms. Walker said the respondent had been hoping to look into CVs “this week” for the permanent role but had an unannounced audit from a major customer that had taken over site for three days. She asked the claimant to bear with her and said she would be chasing on Monday. She asked the claimant to confirm whether, if he were selected for interview, a teams or on-site interview would be better.[44]On 21 May, the claimant emailed Ms. Walker again saying that he had been waiting for an update since 9 May. He said that it had come to his attention that the respondent was advertising for the role of Technical Quality Manager and that he had applied. He said he found it “highly interesting that the company would be recruiting for 2 very similar roles at the same time. I am happy to provide the Heler Foods with an opportunity to provide an update and / or an explanation without jumping to conclusions. I would like to have my applications considered before you move on…”[45]Ms. Walker replied the same day, forwarding an email sent to the claimant on 17 May. She pointed out she had replied to the claimant on the previous Friday (i.e., 17th). She also said she had been advised by the Site Director (i.e., Ms. George) to change the title of the role, which we find was a reference to the point that change in job title to that of Technical Quality Services Manager. She said she would come back to the claimant once she had feedback or confirmation on times from the Head of Technical. Interim Technical Manager leaves[46]On 5 June 2025, Mr. Segynowwycz left the respondent’s employment.[47]In his witness statement the claimant suggested that the “notification of leaver” form in the bundle was “not a genuine document” and that the reason for Mr. Segynowwycz leaving was “questionable”. We do not accept this. The claimant did not suggest that Mr. Segynowwycz was in fact still working for the respondent after 5 June 2025. Nor did he produce evidence to show that Mr. Segynowwycz left for anything other than the reasons that the respondent gave to us in evidence. We find that it would not make sense for the respondent to have produced a fake leaver’s form for Mr. Segynowwcz. We accept the respondent’s evidence that by June 2025, the respondent had received “amber” results in two audits in succession, and this had caused difficulties with one of its significant retail clients. We accept that Mr. Segynowwycz had expressed that there was too much to be done within the Technical Manager role at Nantwich. Interview invitation to the claimant[48]On 7 June the claimant emailed Ms. Walker saying that he was waiting for his interview to be arranged, and that “I can’t help but conclude that fair consideration for my application is unlikely at this point and any interview that might now spontaneously appear will undoubtedly be in bad faith.” Ms. Walker replied the same day, saying she had sent the claimant’s CV to the Technical team a number of weeks ago, that with business audits and priorities recruitment seemed to have been put on hold for a few weeks and asking him to liaise with Sarah Griffith (as Ms. Walker was due to leave the respondent’s business).[49]On 13 June 2024, having reviewed the claimant’s CV again, Ms. Belinska decided to invite the claimant to interview, and she emailed Ms. Griffith to ask her to send him an invitation for an interview on “Teams” on 28 June 2024. We accept Ms. Belinska’s evidence that at this time she felt that the claimant’s CV did not demonstrate that the claimant met all the essential criteria of a Technical Manager in the sector, but that she decided to speak to the claimant directly to gain a better understanding of his background and to clarify the gaps. We found that her evidence in this regard was consistent with the CV in the bundle, in particular the fact that the claimant’s CV unusually suggested that his latest role was with a “confidential” company, and, in relation to his career history in the ten years prior to that, did not make clear how long he had been at each company, what exactly his role had been at each company, or which of the achievements he listed related to which role / company.[50]Ms. Belinska also asked Ms. Griffith to invite another candidate, Janet Daniels (JD) to interview. JD had also applied via Indeed. JD’s CV set out that her existing role was as Quality Manager at a named food related company, and she also set out her previous career history in reverse chronological order. In contrast to the claimant’s CV, JD’s CV gave the name of each company that she had worked at and her job title, and in respect of each role, she set out “career experience and achievements.” JD’s CV did not suggest that she had a stammer. JD’s CV did not identify her race, but neither party suggested to the Tribunal that JD was British Pakistani. Appointment of Nick Gollins on an Interim basis[51]On 17 June 2024, Nick Gollins was appointed as Interim Technical Support at the Nantwich site. We accept that this appointment was made by the Site Director, Ms. George, on the recommendation of the then Interim Site Transformation Director, Johnny Izamis, with whom Mr. Gollins had previously worked. Mr. Gollins had not applied to the respondent. Instead, he was contacted directly by Mr. Izamis who asked whether he was available.[52]This Interim Technical Support role was not advertised. None of the candidates who had previously applied in response to the permanent vacancies on Indeed were considered. Ms. Belinska was not involved in the appointment of Mr. Gollins. She was told by Mr. Izamis once the appointment had been made. Mr. Izamis told Ms. Belinska that she would now be required to spend all of her time at the Wales site to concentrate on the issues at that site, and Mr. Gollins would deal with the Nantwich site, keeping Ms. Belinska updated where necessary. Mr. Izamis also told Ms. Belinska to pass the majority of her recruitment responsibilities to Mr. Gollins. Claimant’s email on 18 June 2024 (the alleged protected act).[53]On 18 June, the claimant emailed Ms. Griffith. He asked her to confirm if the role of Technical Manager (by now strictly Technical Quality Services Manager) was still available or if it had been filled. He said his initial application had been on 27 February, followed by a second on 9 May after the role had been renamed and readvertised. He said he had already “expressed concerns about potential discrimination in the way my application was handled and the lack of progression. Thus far, Heler’s conduct and lack of transparency have only emphasised my concerns.” We find that this was a reference back to the fact that in April 2024 the claimant had commenced early conciliation and that at, or around, that time, he had alleged to the respondent that his application for the role of Technical Manager had been rejected because he had a stammer.[54]The claimant’s email was not copied by him to Ms. Belinksa, Mr. Gollins or Ms. George. When he cross-examined the respondent’s witnesses, the claimant did not suggest to Ms. Griffith that she had shared his email of 18 June 2024 with Ms. Belinska, Mr. Gollins, or indeed with Ms. George. Nor did he suggest to Ms. Belinska or Mr. Gollins that they had been sent or shown a copy as at 28 June, 4 July or 18 or 25 July 2024. We find that neither Ms. Belinska nor Mr. Gollins had seen a copy of the claimant’s email of 18 June 2024 as at the date of the events with which this claim was concerned. We were not presented with any evidence that Ms. George had seen it at that time either, and we find on balance that she had not.[55]Ms. Griffith replied to the claimant on the same day. She thanked the claimant for his continued interest in the role and said she appreciated that the respondent had been recruiting for longer than planned due to internal priorities. She said “if you are able to share any information on a lack of transparency that would be helpful. I was assured Sarah had contacted candidates with progress. The role is still vacant, we are however aiming to move to interview stage when the recruiting manager returns from annual leave.” She asked him if 28th June would be suitable for an interview via Teams. The claimant replied, giving times he would be available. Later that afternoon, the respondent sent the claimant an invitation for a video interview. 28 June[56]At 10.17 on 28 June the claimant emailed Ms. Griffith asking for confirmation that the interview that day would be via the Indeed platform rather than on Teams, asking who would be interviewing him, and asking her to remind interviewers of his stammer as he wanted to ensure it was not mistaken for uncertainty or lack of experience.[57]Ms. Griffith emailed Ms. Belinska at 10.22, forwarding the Indeed invitation sent to the claimant but not the claimant’s email that he had sent to Ms. Griffith earlier that morning. Ms. Griffith asked Ms. Belinska if the interview was still ok “for today” and whether she would prefer a Teams link rather than a link via the Indeed website.[58]We find that Ms. Belinska did not look at the email Ms. Griffith had sent to her at this time because of the events we describe below, but even if she had read Ms. Griffith’s email at that time, she would not have known the contents of the claimant’s email to Ms. Griffith, because that was not included. Ms. Griffith did not send the claimant’s email to Mr. Gollins or Ms. George either.[59]At 11.02 Ms. Griffiths emailed the claimant saying she had to cancel the interview. “I have only just been made aware due to absence. I will confirm the rearranged time ASAP.” By this time, the claimant had already joined the video link.[60]Ms. Griffiths emailed Ms. Belinska at 11.47 saying the claimant was very unhappy the interview had been cancelled at short notice, and asking when it could be rearranged, or whether Ms. Griffith should ask Mr. Gollins to meet the claimant. She said: “Sarah has already advised him he has been selected for interview so wouldn’t be appropriate at this stage to ask for further information on his CV, we can explore this at interview.”[61]What Ms. Belinska was doing on the morning of 28 June 2024, and why she cancelled the interview on that date, was a matter on which there was significant disagreement between the parties.[62]The claimant was not present at either of the respondent’s sites on 28 June 2024 and so could not give direct evidence about what was or was not happening there on that date. Ms. Belinska gave her evidence in a straightforward way. Where she did not know the answer to a question, she said so, and she was not in any way evasive when answering questions. We find her evidence about what happened on 28 June to be consistent with such contemporaneous documentation as exists about that day, and we accept her evidence as reliable.[63]We find that on the morning of the 28 June 2024 Ms. Belinska had started work at the North Wales site at around 8am. She was working in the office when at some point after around 8.30am she heard an Operations line leader notifying staff via the site radio system that metal had been found on line two. The person whose role it was to place the slices of cheese into packaging on line two had noticed bits of metal in the product.[64]We accept Ms. Belinska’s evidence that on hearing this, she took her torch and her PPE and she went down to line two, on the “shop floor”, in order to support the team in finding the source of the metal. Shortly after 9am, she telephoned Jason Mc Lean, People Director at the North Wales site and told him she would no longer be able to attend the interview that she was scheduled to hold later that morning with the claimant. Unfortunately, Jason did not immediately pass this message onto Ms. Griffith.[65]Whilst the initial contamination affected line two, at around 10.30am, whilst Ms. Belinska was still on the shop floor, it was reported that line six had also now detected metal, and so the investigation had to be expanded. We find Ms. Belinska remained involved in the investigation into the metal contamination until around 3pm.[66]The claimant sought to cast doubt on Ms. Belinska’s presence on the shop floor. In particular, he said the respondent had not disclosed her fob records for the day. The respondent’s position is that it didn’t have fob records that it could disclose in response to the claimant’s request. The claimant says fob records should have been retained for “shelf life plus 12 months”, relying on paragraph 3.3.1 of the BRCS standards, but there is nothing in paragraph 3.3.1 to suggest that reference is intended to relate to who is present on a manufacturer’s premises, as opposed to records relating to the food product produced by the manufacturer. We do not find that the absence of fob records undermines Ms. Belinska’s clear and detailed evidence about what happened on 28 June 2024.[67]The claimant also relied on the fact that the Quality Manager signed the investigation forms relating to the incidents on 28 June. We do not find the forms to be inconsistent with Ms. Belinska’s evidence. The form specifically requires the signature of the Quality Manager, but above that section, there is also a section that says: “date passed to Technical Manager for investigation and action approval”. The form is consistent with there being an expectation that the Technical Manager (which in the case of the North Wales site was Ms. Belinska) would have some role in investigating and approving actions taken. Given this, it seems to us likely that if she was on site (as we find she was) she would indeed go down onto the shop floor as the incident and immediate investigation was happening.[68]The claimant suggested there was inconsistency between paragraphs 18 and 21 of the respondent’s grounds and amended grounds of resistance on the one hand, and Ms. Belinska’s evidence on the other, in that the response and amended response referred to the interview being cancelled “due to internal absences”. However, this sentence has to be read in conjunction with the remainder of the paragraph, which goes on to say: “Ms. Belinska was scheduled to conduct the interview, however, she was unable to attend the interview that day as she needed to prioritise an urgent investigation at the Respondent’s premises.” That is consistent with Ms. Belinska’s evidence to us.[69]The claimant also suggested the incidents on 28 June were not sufficiently serious to require the attendance of Ms. Belinska, and that this cast doubt on her evidence she had attended to investigate. He relied upon evidence there had been other metal contamination incidents raised on 27 June which he said had been dealt with routinely and hadn’t required the attendance of the Technical Manager. He suggested that because on 28th metal had been identified on line six by the metal detector, this showed the metal detector was doing its job, and the incident wasn’t as serious as the respondent suggested. We find that until the respondent had been able to identify when, and from where, the metal had come, it couldn’t be sure there was not more metal in cheese that had already been packed, and if so, whether any of the affected packed cheese had already left the premises. Had cheese contaminated with metal made it onto the shelf of a retailer, or onto an airline, that would have posed an obvious risk to the health and safety of customers and to the reputation of the respondent. We find this risk is sufficiently serious that it is entirely credible that a Technical Manager present on site would be likely to go straight down to the shop floor and, particularly once it was known that two lines were potentially affected, would remain there until the investigation had completed and they were satisfied everything was safe. We accept Ms. Belinska’s clear and detailed evidence which was to the effect that she genuinely regarded the incidents as potentially serious.[70]The claimant invited us to find it was “unusual” for Ms. Belinska not to reply to Ms. Griffith’s email at 10.22. We do not find it to be inherently unusual for someone not to reply to an email within 40 minutes, particularly if they are engaged in dealing with something elsewhere on the premises rather than in their office. The claimant also invited us to infer from the absence of disclosure of WhatsApp messages from the respondent that there must have been WhatsApp messages between Ms. Griffith and Ms. Belinska on 28 June between 10.22 and 11.02, specifically discussing the claimant’s stammer. This suggestion was based on Mr. Gollins accepting in crossexamination that WhatsApp was a method used to communicate by some people in the respondent, but he was trying to get people to use Teams instead. We do not find that we can infer from this general point that Ms. Griffiths and Ms. Belinska must have exchanged WhatsApp messages on 28 June (or at all) about the claimant’s stammer. Mr. Gollins did not suggest that Ms. Griffith and Ms. Belinska had exchanged WhatsApp messages. We find that there was no communication between Ms. Belinska and Ms. Griffith on 28 June 2024 about the claimant’s stammer. Ms. Belinska’s discussion with Mr. Gollins[71]Mr. Gollins was also at the North Wales site on 28 June 2024 for a site visit and to provide support. Later on the afternoon of 28 June 2024, once Ms. Belinska’s involvement in the investigation we have described above had finished, Ms. Belinska told Mr. Gollins she felt bad because she had cancelled an interview. She told Mr. Gollins about the claimant’s CV and said she would not usually have taken it further but on this occasion, she had decided to proceed with further exploring it at interview but then had cancelled. Mr. Gollins then reviewed the claimant’s CV. By this time, Mr. Gollins was providing Interim Technical Support at the Nantwich site, which was the site at which the respondent was trying to recruit for the permanent Technical Services Quality Manager role. 1 July[72]On 1 July, Ms. Griffith emailed Mr. Gollins saying that Ms. Belinska had asked if he could attend a Teams interview with the claimant. She said they were awaiting availability for JD (the other candidate Ms. Belinska had asked Ms. Griffith to invite to interview in her 13 June email) and asked if Mr. Gollins could also interview JD.[73]Later that morning, Mr. Gollins replied, saying: “I looked at [the claimant’s] CV with Ilona on Friday and I dismissed them as their CV was very poor and giving no detail of achievements that looked tangible. The HoT/TM/BC [Head of Technical / Technical Manager / Business Consultant] are so mixed up. There was very little experience to what is needed for Nantwich, Sorry if this was not the feedback you got.” Mr. Gollins also gave feedback on JD’s CV. He said that “I don’t feel either candidate is suitable for Nantwich. Next time your in Nantwich lets have a catch up on the process and people that are coming back with CV’s.”[74]Ms. Griffith replied to Mr. Gollins saying both candidates had already been told they would be invited to interview following feedback from Ms. Belinska and “it won’t create a great impression if we now cancel this.” She said she had already had to cancel the claimant’s interview at short notice and “we have an issue with [the claimant] via ACAS due to communication issues already so if we can please interview him via Teams.”[75]By this stage, Ms. Belinska’s focus was primarily on the North Wales site, and we find that she was very busy at that site. Ms. Belinska was aware of Mr. Gollins’ advice and whilst as a substantive Technical Manager she could have overridden his advice that the claimant and JD should not be interviewed, she did not push for the claimant or JD to be interviewed once Mr. Gollins had declined to interview them. We return to this in our conclusions section. 4 July[76]Ms. Griffith took Mr. Gollins email as confirmation that the claimant’s application and that of JD should be rejected, but on 4 July, Ms. Griffith emailed Mr. Gollins again, asking if there was some specific feedback she could go back to the claimant with, saying: “he has made a claim via ACAS that we did not select him for interview due to a stammer, this was not the case as at that point in time Ilona had not reviewed CVs, Ilona then reviewed the CVs and selected him for interview.” We find this was a reference back to the March “not selected” notification on Indeed, and to the claimant’s first period of ACAS early conciliation, which Mr. Gollins had not previously been aware of.[77]Mr. Gollins responded, giving seven points of feedback on the claimant’s CV. These included that “his experience in a multi-site role is noted” but that additional details about the size and complexity of the businesses would be provide better insight, and that “its left vague”. Mr. Gollins said it would be advantageous for the claimant to specify the duration and nature of his roles within the dairy industry, that it would be helpful for him to provide more context and dates for each interim role that he had worked with and the nature of each role, noting that "10 years and more than 20 companies could suggest only 3 months in a business, which would not give a good grounding for experience in a sector”, and that “tailoring his CV to align more closely with the specific requirements of the positions would give him I believe more opportunities. Highlighting relevant skills and experiences that match the job description will make his application more compelling.” Mr. Gollins did not make any reference at this time to academic qualifications, and we find that they were not a factor that he considered in June or July 2024 when suggesting that the claimant should not be interviewed.[78]We find the criticisms raised by Mr. Gollins in this email on 4 July were consistent with the CV the claimant had presented to the respondent, in particular the fact that he did not identify who he was working for in his existing role (said to be a “multi-site” role), and the fact that his experience in the ten years prior to that did not make clear what role he had done at which company, how long he had been at each company, or which achievements related to which company. Mr. Gollins concluded by saying: “I decided to continue our search for a candidate whose experience aligns more closely with the site requirements business needs.” He also made the point that he had not spoken to the claimant and asserted that “putting stammer in a cv is not going to stop me seeing someone.”[79]Ms. Griffith emailed the claimant later on 4 July saying the respondent had had a change in recruiting manager, would be readvertising the role at a more senior level than initially envisaged and had decided to continue the search for a candidate whose experience aligned more closely with site requirements.[80]The claimant replied to Ms. Griffith asking her to explain “exactly what these ‘experiences & site requirements and business needs’ entail”. He said he found it concerning he was being rejected without the role even being advertised at the ‘senior level’, that the role requirements appeared to keep changing and this gave the impression the company might be changing the role name in an attempt to discourage him from applying and to fill the position with “a different candidate not of my protected characteristics.” The claimant said he wished for his application to remain valid regardless of the role’s title or seniority level, and that he would appreciate “a candid, withoutprejudice conversation to discuss the circumstances under which I might withdraw my application altogether.” Ms. Griffith replied to him the same day saying that the “revised role profile has been a result of internal changes and a change to the requirements of the role…the role will be advertised on Indeed and all applications for this role will be reviewed and responded to.”[81]We address in our conclusions section our conclusion about why the job title changed. The respondent says that by this stage Ms. George had accepted that the Technical Manager role required a candidate with more experience than had initially been advertised, and that a higher salary needed to be offered.[82]On 4 July 2024, the respondent posted a job advert on Indeed and its own website for a Technical Manager (Senior), with the pay being advertised as “from £60,000 per year.” This rate of pay was in line with the level Ms. Walker had advised in her email of 26 April. Claimant’s application for Technical Manager (Senior)[83]The essential criteria for the Technical Manager (Senior) role did not include a requirement for a degree, but in contrast to the earlier advertisements which required a minimum of 5 years’ experience in FMCG/Dairy/Food or similar environment, a minimum of 10 years’ experience was now said to be essential. The other essential criteria were: BRC Compliance and audits aware; Up to date knowledge of technical advances and the changing consumer landscape; an interest in the food industry and especially food safety; ability to develop individuals; diligent and attention to detail focused; organized and able to both multi-task and prioritise effectively; and knowledge of effective structures and team dynamics and training needs.[84]The claimant applied, via Indeed, for the Technical Manager (Senior) role. We find he relied on the same CV he had used for his earlier applications. When it was put to him by Mr. Ahmed that his CV remained the same as in his earlier applications, the claimant said he did not know. We find that the fact that the claimant has only disclosed one CV in this litigation, and didn’t suggest in his witness statement he had updated it for the later applications is consistent with him having used the same CV.[85]On 18 July 2024, a member of the respondent’s People Team, Dalia Ali, sent the claimant a message via Indeed asking if he was still interested in the role as she would like to send his CV to the Hiring Manager. The claimant replied to Ms. Ali’s message saying that he was still interested. Ms. Ali had not had previous involvement with the claimant’s earlier applications. We find her role in the recruitment process for the Technical Manager (Senior) role was quite limited and she was not the hiring manager. In the case of the Technical Manager (Senior) role, the ultimate hiring manager was the Site Director, Ms. George, but Ms. Belinska was initially sent CVs by Ms. Ali to decide if candidates should be invited to interview.[86]Ms. Ali forwarded the claimant’s CV to Ms. Belinska later that morning, at 10.08. Ms. Belinska replied at 11.48 saying: “apologies No for this candidate.” We will address in our conclusions section our conclusions about why the claimant was not appointed to the Technical Manager (Senior) role.[87]On 25 July, the claimant messaged Ms. Ali asking if his application would be progressing to interview. Ms. Ali responded, saying: “we carefully reviewed your skills and qualifications and have decided to move forward with another candidate for the position. We appreciate the time you invested…we encourage you to pursue future openings.” The claimant replied, sarcastically: “that’s wonderful news and very much anticipated given my application history with Heler”. Other applicants not already mentioned above Gloria (“GF”)[88]On 12 June 2024, a recruitment consultant emailed Ms. Walker attaching the CV of Gloria (GF). The consultant described GF as a highly skilled technical candidate, currently working as a Quality and Technical Manager who had recently managed to get the business to Grade AA+ from Grade C. GF’s CV described her as currently working for a named company that made cheese and set out in reverse chronological order all the companies she had worked for, the role she had held there, and what this had involved.[89]On 17 July 2024, Dalia Ali sent four CVs to Ms. Belinska. Ms. Belinska responded “no” to three but asked Ms. Ali to invite GF to an interview. The following morning, Ms. Ali emailed Ms. Belinska to say that GF was no longer available. GF was not interviewed by the respondent and was not appointed to any of the roles advertised in 2024. JAP[90]Another candidate, Jo-Anne (JAP) was interviewed by Ms. Belinska for the Technical Manager role on 4 July 2024. The respondent had planned to hold a second interview with her, but JAP withdrew from the process. JAP was not a candidate who had applied via Indeed but was someone who had been recommended directly to Ms. Belinska by an auditor who had passed JAP’s CV to Ms. Belinska. We had no evidence that Mr. Gollins saw JAP’s CV at any stage. We were not referred to a copy of JAP’s CV in evidence. The claimant asserted JAP was “Caucasian” and not British Pakistani, but we were not provided with any further information about her race or whether she had declared any stammer. JH[91]On 21 August Mr. Gollins and Ms. George interviewed Joshua (JH) for the Technical Manager (Senior) role. According to his CV, JH had been working as Group Technical Manager for a specific named food company for the previous almost three years, and prior to that had been Technical Manager at two other named food companies for a total of around 8 ½ years. His CV described his key responsibilities in each specific role. Following interview, Mr. Gollins decided JH was not suitable for the role. In particular, Mr. Gollins considered JH provided limited strong evidence of the respondent or the dairy sector, and that he did not demonstrate the leadership capability required at Technical Manager level. JH was not appointed to the role. Again, the claimant asserted that JH was “Caucasian” and not British Pakistani, but we were not provided with any further information about his race. His CV did not declare a stammer. Overall[92]We find that in total, around 290 applicants applied via Indeed for the Technical Manager /Technical Quality Services Manager / Technical Manager (Senior) role. Whilst we were not provided with details of the numbers of applicants who were not British Pakistani, or the numbers who had not declared a stammer, given the overall number of candidates we accept that this number will have included candidates who were not British Pakistani and had not declared a stammer.[93]None of the candidates who submitted applications via Indeed were appointed by the respondent. In fact, no candidate (including those who were put forward by recruitment agencies) was appointed to the permanent Technical Manager / Technical Quality Services Manager / Technical Manager (Senior) role. That vacancy was never filled. Matters occurring after 25 July 2024[94]On 9 August 2024 the claimant notified ACAS for the purposes of early conciliation for a second time, and a certificate was issued on 12 August. The claim form was presented on 17 August[95]On 13 September, in response to emails from Ms. Griffith dated 5 and 13 September, Mr. Gollins provided some further feedback about the claimant’s application, which included a suggestion that the claimant had not listed any academic qualifications. We find this particular criticism was wrong, because the claimant’s CV had set out that he had a BSc (Hons) in Pharmaceutical Chemistry. However, we find the other feedback provided was consistent with the claimant’s CV.[96]The post of Technical Manager (Senior) remained unfilled. Mr. Gollins continued as Interim Technical Support until 1 February 2025, when he was appointed to the permanent role of Head of Technical at the respondent, based at the respondent’s Nantwich site, and with a salary of £95,000 per year. We find that is a different role to the Technical Manager (Senior) role and it is not simply that the title is different. That is consistent with the fact that the salary is 1.5 times the salary that applied to the Technical Manager (Senior) vacancy. The Head of Technical role was not advertised internally or externally, and no one apart from Mr. Gollins was given the opportunity to be considered for it. Did the claimant have any genuine interest in the Technical Manager, Interim Technical Manager or Technical Manager (Senior) roles?[97]The respondent invited us to find that the claimant had no genuine interest in the role(s) for which he applied with the respondent and no genuine intention of taking up a role with the respondent. The respondent relied on a number of points in this regard, which we summarise as follows: 97.1. The number of claims the claimant has brought in the past against other organisations, and his response in cross-examination to being asked for details of exactly how many claims he had brought. We were referred to a supplementary bundle containing judgments in nine other cases. In some judgments, other Judges had described the claimant as a “serial litigant” and had doubted he had had a genuine interest in roles he had applied for. The respondent submitted that when the claimant was asked in cross-examination about the number of claims he had made, and those he had made in 2025/26, his answers had been evasive, and he had refused to agree with the respondent’s suggestion that he give consent for the Tribunal’s systems to be checked. 97.2. Secondly, the respondent relied upon the fact the claimant had notified ACAS for the first time on 2 April 2024, when all that had happened was the Indeed platform changed to “not selected by employer”. The respondent said there was no evidence that could support a suggestion the claimant had been discriminated against. 97.3. Thirdly, the respondent relied upon issues relating to the claimant’s CV, particularly that he had referred to his Pakistani heritage and stammer when protected characteristics did not need to be included in a CV, that having been requested in cross-examination to make disclosure proving who the “confidential” employer was, the claimant didn’t provide disclosure, and that there were no gaps shown on his CV submitted to the respondent, nor any reference to him having been dismissed by Morrisons, whereas Judgments in other cases made reference to gaps on the CVs in those cases, and another Tribunal found he had been dismissed by Morrisons. 97.4. Finally, the respondent relied upon the claimant’s references to having without prejudice discussions and suggested that taking all these points and the evidence overall together we should find the claimant was not being truthful when he suggested he had a genuine interest in working for the respondent, and that we should instead find that the claimant had applied so as to make speculative claims as a means of income generation.[98]The claimant maintained that he did have a genuine interest in the roles for which he applied and for working for the respondent.[99]Having carefully considered all the points raised, we find on balance that the claimant did have a genuine interest in the roles he applied for with this respondent. In particular: 99.1. This was not a situation in which the claimant was applying for a role that would have required him to relocate his family. The respondent’s Nantwich site was within commuting distance of the claimant’s home (just over an hour away). 99.2. Whilst the claimant did notify ACAS for the first time on 2 April 2024, he did not bring a claim until his final application for the Technical Manager (Senior) role had been rejected. Instead, he continued to pursue a role with the respondent, submitting further applications each time the job title changed / a new advertisement was issued, and attending the interview on 28 June 2024 (albeit that interview was then cancelled by the respondent). We find that to be consistent with him having had a genuine interest in working for the respondent. Whilst he suggested having a “without prejudice” conversation in his email of 4 July 2024, this was only after he had been told that the respondent had decided to continue its search for a candidate whose experience aligned more closely with its business needs. 99.3. The fact that the claimant has made other claims, and that some (not all) of the Tribunals hearing those claims found he had no specific interest in the vacancies he applied for in those cases does not necessarily mean he had no genuine interest in the roles he applied for with the respondent. We did not find that overall, it was right for us to infer from the absence of a clear indication from the claimant as to the number of claims that he brought in this period that the claimant was lying about having had a genuine interest in the roles he applied for with the respondent. The respondent had not made an application for specific disclosure of the number of job application Tribunal claims that the claimant made between 2024 and 2026. 99.4. With regards to the claimant’s CV, we do not find the way in which the claimant presented his work history on his CV to be helpful, nor did we find his CV to be something we could rely upon as giving a fully reliable account of his work history. However, we find that the fact his CV did not make reference to specific gaps in employment or his previous dismissal to be consistent with him having a genuine interest in gaining employment at the respondent, in that it is consistent with him trying to present his work history in a better light than it may have appeared if he had set it out clearly and accurately. It is right that the CV the claimant submitted to the respondent did not suggest that he had clear gaps in his employment (for example between March to October 2018, or February to September 2020, as there had been in a CV submitted to the respondent in 1303067/2022), but it also didn’t make clear exactly which role he had been doing for which company, or for how long he had worked for / with each company, between the years 2013 to July 2023, which was one of the problems identified by the respondent’s decision-makers. The claimant’s explanation for why he did not make clear on his CV that he had been dismissed by Morrison’s (one of the 20 companies he listed as having done work for between 2013 and 2023) was that he thought if he put this on his CV he would never work again. 99.5. Finally, whilst it was not necessary for the claimant to have included in his CV that he had a stammer or was of Pakistani heritage, in that he could have referred to his communication skills and passion for food without mentioning his stammer or race, we did not find, taking everything into account, that this must show that the claimant had no genuine interest in working for the respondent and was only intending to make a speculative claim. The context in which the claimant’s email dated 18 June 2024 was sent and received[100]The respondent relied on the fact that the claimant had notified ACAS for the first time on 2 April 2024 when all that had happened is that his application status had been changed to “not selected by employer” on Indeed. In the claimant’s email on 18 June 2024, he said: “I have already expressed concerns about potential discrimination in the way my application was handled and the lack of progression. Thus far, Helers’ conduct and lack of transparency have only emphasised my concerns.”[101]The respondent argued that when the claimant sent this email on 18 June 2024, he did so in bad faith. Whether or not the claimant’s belief was well founded, or whether this was a protected act, is something we will return to in our conclusions, but we have already found that the claimant did have a genuine interest in working for the respondent, and we do not find that he was being dishonest when he said that he had the concerns he expressed.[102]Whilst the claimant’s email did not itself refer to any protected characteristic, the respondent’s HR department knew from what had been communicated in April (after the initial early conciliation notification) that the claimant believed that he had not been selected for interview because of his stammer. This is clear from Ms. Griffith’s later email to Mr. Gollins on 4 July 2024, in which she referred to the fact that “he has made a claim via ACAS that we did not select him for interview due to a stammer.” Mr. Gollins had however not himself known about this when he had reviewed the claimant’s CV on 28 June or when he had emailed Ms. Griffith on 1 July, setting out his view that the claimant should not be interviewed. SUBMISSIONS[103]We heard oral submissions on behalf of the respondent. The claimant prepared a 17-page written submission, which we read, and we also heard oral submissions from him. We took all of the submissions into account when reaching our decision, and for reasons of length we do not set them out in full here. By way of a brief summary: 103.1. The claimant submitted that he was genuinely interested in working for the respondent, that he had established facts from which we could conclude that he had been discriminated against both because the respondent perceived him to be disabled and because of his race, that he had done a protected act and he had proved facts from which we could conclude he was subjected to detriment because of that. The claimant submitted that where witness recollection conflicted with contemporaneous documents, we should prefer the documents. He invited us to draw inferences from a number of matters as set out in his written submissions. He submitted that the respondent had not produced cogent evidence to show that the treatment of him was in no sense whatsoever because of race, perceived disability, or the protected act. 103.2. The respondent submitted that the claimant had no genuine intention of working for the respondent, that his intention was instead to make speculative claims as a way of income generation, and so he could not show that he had suffered any detriment by not being appointed. The respondent submitted that the claimant’s email of 18 June 2024 was not capable of being a protected act and was in any event false and in bad faith. The respondent submitted that the alleged actual comparator for the Interim role (Mr. Segynowycz) was not in a comparable position, and the other people referred to by the claimant in evidence as comparators were not suitable comparators and in any event were not treated more favourably because none of them were appointed to the interim or permanent role(s) either. The decision-makers did not perceive the claimant to be a disabled person in the sense discussed in Coffey. The claimant had not proved facts from which the Tribunal could conclude that he had been directly discriminated against or victimised, and in any event the respondent’s witnesses had given cogent evidence that the reason why the claimant was not appointed to any of the roles he complained about was in no sense whatsoever because of his stammer, race or the email of 18 June 2024.
LAW
[104]Section 39 (1) (c) of the Equality Act 2010 (EA) provides that an employer (A) must not discriminate against a person (B) by not offering B employment. Section 39 (3) provides that A must not victimise B by not offering B employment.[105]The time limit for bringing a claim of direct discrimination or victimisation is set out at Sections 123 and 140B of the EA.[106]The key issue in deciding whether there was a continuing act of discrimination (Section 123 (3) of the EA) is whether there was an ongoing situation or continuing state of affairs which amounted to discrimination (Hendricks v Metropolitan Police Comr [2002] IRLR 1686, Mummery LJ, ¶52). It will also be appropriate to have regard to(a) the nature and conduct of the discriminatory conduct of which complaint is made, and(b) the status or position of the person responsible for it. A single person being responsible for discriminatory acts is a relevant, but not conclusive, factor (Aziz v FDA [2010] EWCA Civ 304, ¶33).[107]When deciding whether it is just and equitable to extend time (Section 123 (1) (b)), factors which are almost always relevant to consider when exercising any discretion are: (a) the length of, and reasons for, the delay; (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh) (Abertawe Bro Morwannwg University Local Health Board v Morgan [2018] EWCA Civ 640, ¶18-20; Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, ¶37-38). Burden of proof[108]Section 136 of the EA provides: “(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.”[109]In Igen v Wong [2005] IRLR 258, the Court of Appeal set out guidance on the approach to be taken to the burden of proof, although noting that such guidance was no replacement for the statutory wording. The guidance refers to sex discrimination but applies equally to claims of discrimination involving other protected characteristics:(1) … it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful ….. These are referred to below as "such facts".(2) If the claimant does not prove such facts he or she will fail.(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.(5) It is important to note the word "could" …. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.[110]The change in wording in Section 136 of the EA when compared with the pre-EA burden of proof provisions, did not alter from the pre-EA provisions on the burden of proof, did not make any substantive change in the law on the burden of proof (see Efobi v Royal Mail Group Ltd [2021] UKSC 33). In Efobi, the Supreme Court also discussed the circumstances in which an adverse inference may be drawn from the absence of a witness. Reference was made to Wisniewski v Central Manchester Health Authority [1998] PIQR P324, which was not itself an employment Tribunal case. The Supreme Court said: “there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”[111]The Supreme Court also made clear that (paragraph 43): “Where it is said that an adverse inference ought to have been drawn from a particular matter - here the absence of evidence from the decision-makers - the first step must be to identify the precise inference(s) which allegedly should have been drawn. In their written case on this appeal counsel for the claimant identified two such inferences:(i) that the successful applicants for the jobs for which the claimant unsuccessfully applied were of a different race or ethnic origin from the claimant; and(ii) that the recruiters who rejected the claimant’s applications (in all but two cases on paper without selecting him for an interview) were aware of his race when doing so.”[112]The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination and are not, without more, sufficient material to shift the burden of proof (Madarassy v Nomura International plc [2007] IRLR 246, Mummery LJ at ¶56). A similar point was made in the context of a victimisation claim in Greater Manchester Police v Bailey [2017] EWCA Civ 425 (¶29).[113]Where an employer behaves unreasonably, that does not mean that there has been discrimination, but it may be evidence supporting an inference of discrimination if there is nothing else to explain the behaviour (Anya v University of Oxford and anor [2001] ICR 847, CA, ¶14).[114]There are cases where it might be appropriate for the tribunal to go straight to the second stage of considering the subjective reasons which caused the employer to act as he did (Laing v Manchester City Council [2006] IRLR 748, ¶73; Hewage v Grampian Health Board [2012] UKSC 37, ¶32. However, it is important not to ignore the statement in Hewage that the burden of proof provisions require careful consideration where there is room for doubt as to the facts necessary to establish discrimination (Field v Steve Pye & Co (KL) Ltd and others [2022] IRLR 948 (¶41-46)). Direct discrimination[115]Section 13 of the EA provides:“(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[116]Section 23 provides: “(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.”[117]If a claimant does prove facts from which the tribunal could conclude that he has been discriminated against, the burden shifts to the employer to show an adequate non-discriminatory, reason for the difference in treatment. This requires a consideration of the subjective reasons which caused the employer to act as he did (Shamoon v Chief Constable of the Royal Ulster Constabulary [2006] IRLR 748). There may be cases where after careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, the protected characteristic was the reason why he acted as he did (Nagarajan v London Regional Transport [1999] IRLR 572, ¶17).[118]In the specific context of cases involving job applications, an applicant who has no genuine interest in the job cannot be said to have suffered any detriment and therefore will be unable to show less favourable treatment (Garcia v The Leadership Factor Ltd [2022] EAT 19. This was a point also made in Keane v Investigo [2009] UKEAT 0389 (¶19 and 25) and Berry v Recruitment Revolution (& others) UKEAT/0190/10/LA (¶29).[119]We had regard to the Code of Practice on Employment Chapter 16 concerning avoiding discrimination in recruitment, and in particular paragraphs 16.43 to 16.49 concerning general principles and 16.50 concerning shortlisting. Perceived direct discrimination.[120]In Chief Constable of Norfolk v Coffey [2019] IRLR 805, Underhill LJ agreed that Section 13 was wide enough to cover the case where A acts on the basis that B has a protected characteristic, whether or not B actually has that characteristic (¶11). This is also set out in the Code of Practice at ¶3.21, where the example is given of an employer rejecting a job application form from a white woman whom he wrongly thinks is black because the applicant has an “African-sounding” name.[121]It was common ground between the parties in Coffey that in a claim of perceived disability discrimination the putative discriminator must believe that all the elements in the statutory definition of disability are present – though it is not necessary that he or she should attach the label ‘disability’ to them. Underhill LJ agreed that this was the correct approach (¶35).[122]The definition of disability is set out in Section 6 of the EA. In so far as relevant to the present case, it provides: “(1) A person (P) has a disability if –(a) P has a physical or mental impairment, and(b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-today activities.”[123]‘Substantial’ in this context means more than minor or trivial (Section 212 (1)). The effect of an impairment is ‘long-term’ if(a) it has lasted for at least 12 months;(b) it is likely to last for at least 12 months;(c) it is likely to last for the rest of the life of the person affected (Schedule 1 (2) (1). Victimisation[124]Section 27 of the EA provides: “(1) A person(a) (A) victimises another person(b) (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. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”[125]There are a number of authorities that address when an act will be a protected act within the scope of Section 27 (2) (d).[126]In Durrani v London Borough of Ealing UKEAT/0454/12, Mr Justice Langstaff (President) said that (paragraph 22): “The complaint must be of conduct which interferes with a characteristic protected by the Act, such as race, not to a matter not protected by the Act, such as public interest disclosure. The only relevant protected characteristic asserted here was the Claimant's race. …I would accept that it is not necessary that the complaint referred to race using that very word. But there must be something sufficient about the complaint to show that it is a complaint to which at least potentially the Act applies. As Mr Davies points out, the Tribunal found as a fact that the Claimant did not attribute any treatment (at the time) tot eh fact that he is British of Pakistani origin.” On the facts of that particular case, the EAT upheld the Tribunal’s decision that Mr. Durrani had not done a protected act but also made clear that (paragraph 27): “this case should not be taken as any general endorsement for the view that where an employee complains of ‘discrimination’ he has not yet said enough to bring himself within the scope of Section 27 of the Equality Act. All is likely to depend on the circumstances, which may make it plain that although he does not use the word ‘race’ or identify any other relevant protected characteristic, he has not made a complaint in respect of which he can be victimised. It may, and perhaps usually will, be a complaint made on such a ground. However, here, the Tribunal was entitled to reach the decision it did, since the Claimant on unchallenged evidence had been invited to say that he was alleging discrimination on the ground of race. Instead of accepting that invitation he had stated, in effect, that his complaint was rather of unfair treatment generally.”[127]In Fullah v Medical Research Council and another UKEAT0586/12/RN, the EAT also upheld the Tribunal’s decision that the claimant had not done a protected act when he wrote in documents that he believed that he was subject to bullying, harassment, discrimination and victimisation, but did not make any mention of race. His Honour Judge Mc Mullen QC said (paragraphs 24 to 26) “the judges of this are the Employment Tribunal, who were enjoined to look not just at the documentation but at the context, in particular, the context in which the Claimant made explicit claims a year later of race discrimination, a claim made by an articulate, well educated person knowing clearly what the language is. There is no basis in either of the two emanations that he puts forward for a complaint of race discrimination. An employer is entitled to more notice than is given by a simple contention that there is victimisation and discrimination…..in the absence of any such evidence of reliance on a protected characteristic, buttressing the complaint of victimisation or discrimination, it cannot be said that there was a protected act in this case…. …we accept of course, that the word ‘race’ does not have to appear but the context of the complaint made by a complainant does. There is no such context here, indeed, it is to the contrary. If one reads the language of the Claimant in his complaints literally, he is complaining with his fellow employees, who were not black did not make claims of race discrimination, that they are suffering detriment at the hands of Dr Malinek. He was unfavourable to them all and, therefore, the claim could not get off the ground. We see no error of law in the Tribunal’s finding that there was no protected act.”[128]In Chalmers v Airpoint Ltd and ors UKEATS/0031/19, the EAT again held that the Tribunal had been entitled to find that the claimant had not done a protected act on the facts of that case, when she said in her written grievance that her employer’s actions “may amount to discrimination.” Lord Summers held that the Tribunal had been entitled to interpret the email according to its natural meaning and that the wording chosen by the claimant permitted the Tribunal to conclude that the email did not allege that she had been discriminated against on the grounds of sex. The Tribunal had been entitled to take into account the claimant’s experience in HR, and to consider that this qualified her to take an informed view as to whether her non-invitation to the Christmas night out was an act of discrimination on the ground of sex and that being so, the failure to assert sex discrimination in the email undermined her submission that it was an explicit allegation of sex discrimination. The Tribunal was also entitled to consider the fact that the claimant was articulate and well educated and to take the view that if she had wished to assert sex discrimination in her grievance she would have done so.[129]In Kokomane v Boots Management Services Ltd [2025] EAT 38, the EAT overturned the Tribunal’s decision that the claimant’s written grievances and grievance hearing did not amount to protected acts, and remitted the question to the Tribunal. His Honour Judge Beard held (paragraphs 23-24): “There is always a need in these cases to return to the statutory formulation. In order for a complaint to be a protected act it must meet the statutory form required by the Equality Act, in other words a complaint about something which, if proven, would be a contravention of the Act. That means a complaint in this case must be about race discrimination: which could be direct discrimination or race harassment in the circumstances and, in meeting that definition, the protected act must be considered in the factual context in which it was made. Considering the context, it appears to me that what is set out, for instance by Waite J in Waters [a reference to Waters v Commissioner of Police of the Metropolis [1997] IRLR 589] is that the allegation relied on need not state explicitly that an act of discrimination has occurred. All that is required are that facts should be asserted which are capable in law of amounting to an act of discrimination. Whilst that is a decision which related to earlier legislation it seems to me that the decision in Durrani where Langstaff J indicates that in context the circumstances may make in plain the way in which a protected characteristic is being relied upon, supports the earlier approach. Although it will usually be the case that the Equality Act element is made explicit it is not necessary that it should.. An ET would be entitled to reach a decision based on context that the word ‘race’ is unnecessary where it is held that the factual matters that are relied upon meet the definition. In the Fullah case, it seems to me that it is important to recognise that the reference made by the EAT was to the specific form of words that were used. That was rejected in that case as amounting to a protected act in circumstances where the context made it clear that they were not protected acts. It appears to me the law could be summed up in this way: what is necessary is that the ET should take account of all the factors that are provided in the information given by the employee to the employer. In addition the ET needs to consider that information on the basis of how it would be understood by the employer in context. It would be understood by the employer, in part, because of the general facts about the employee and the place of work, which the employer would know of it any event. In terms, that the employee’s complaint should be considered by the ET by examining the way that it would be understood by the employer. When the employee makes the complaint explicit that will be an easy task. When the complaint is oblique, the context becomes important.”[130]When determining whether an employee has acted in bad faith for the purposes of Section 27 (3), the primary question is whether the person has acted honestly in giving the evidence or information or in making the allegation (Kalu v University Hospitals Sussex NHS Foundation Trust [2022] EAT 168, ¶39).[131]Whilst the question of whether there is a detriment is to be examined from the point of view of the claimant, an unjustified sense of grievance cannot amount to a detriment (St Helens Metropolitan Borough Council v Derbyshire [2007] UKHL 16, ¶27; Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, ¶35).[132]Any detriment must be because of the protected act, which requires consideration of the employer’s motivation (conscious or subconscious). Where there is more than one motive in play, the discriminatory reason should have a significant influence on the outcome (Nagarajan, ¶19). It is not enough for the claimant to show that but for the protected act, the detriment would not have occurred (Greater Manchester Police v Bailey, ¶36). Memory[133]The claimant referred in his submissions to Gestmin SGPS SA v Credit Suisse (UK) Ltd EWHC 3560 (Comm). At paragraph 22, Leggatt J, following a discussion about the fallibility of human memory, suggested that “the best approach for a judge to adopt in the trial of a commercial case is…to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.” However, the Court of Appeal in Kogan v Martin [2019] EWCA Civ 1645 made clear (paragraph 88) that “a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence.”
CONCLUSIONS
[134]Although the first matter in the list of issues relates to time limits, we consider that it is sensible for us to first reach our conclusions as to whether any of the complaints succeed before considering time limits. (LOI 3). Did the respondent’s decision-makers perceive the claimant to have a disability on the date at which they made the relevant decisions?[135]We did not have any evidence to show that Ms. Belinska or Mr. Gollins, or indeed Ms. George, knew anything more about the claimant’s stammer than the information that he had included in his CV. As we have found above, whilst anyone reading the CV would have seen that the claimant had “excellent communication skills despite having a stammer”, and would therefore have known he had a stammer, they could not have known if it had any adverse effect on its ability to carry out normal day-to-day activities, because the CV did not give any further detail. We conclude that neither Ms. Belinska nor Mr. Gollins, nor Ms. George, perceived the claimant’s stammer to have a long-term adverse effect on his ability to carry out normal day-today activities, and applying Coffey none of them perceived him to be disabled.[136]Ms. Griffith had some further information about the claimant’s stammer in the email dated 28 June, when the claimant said that in interview he wanted to ensure his stammer was not mistaken for uncertainty or lack of experience. This email still did not make explicit any alleged effect of the stammer on normal day-to-day activities, but in any event, we have found that Ms. Griffith did not pass this email onto Ms. Belinska, Ms. George or Mr. Gollins. (LOI 4 to 7) Direct discrimination Was there a detriment to the claimant in not being appointed to the role(s) in question: did the claimant have a genuine interest in taking up the role(s) with the respondent?[137]There is no dispute in this case that the status of the claimant’s application on Indeed changed to “not selected by the employer” in March 2024, that he was not offered the role of Interim Technical Manager, that he was told on 4 July 2024 that the role was being changed to Technical Manager (Senior), and that he was rejected for the role of Technical Manager (Senior).[138]Before we come to consider the question of whether the claimant was less favourably treated in these respects, we must first set out our conclusion on the point raised by the respondent, which was to the effect that these matters could not be said to be to the claimant’s detriment at all, and so were not capable of being less favourable treatment. The respondent submitted that, like in the cases of Keane and Berry, the claimant had no genuine interest in the roles and no genuine interest in working for the respondent.[139]However, we have found as a fact that the claimant did have a genuine interest in the roles and did have a genuine interest in working for the respondent. We therefore conclude that being rejected from the Technical Manager/ Technical Manager (Senior) role and not appointed to the Interim role were capable of being considered to the claimant’s detriment and we go on to consider the remaining issues, taking each alleged act of less favourable treatment in turn. Being rejected for the role of Technical Manager (March 2024)[140]Having made his application for the role of Technical Manager in February 2024, the claimant was told, via the Indeed platform in March 2024, that he was “not selected by employer.” Race discrimination[141]The claimant did not rely on any actual comparator for this complaint. We conclude that he was not treated less favourably than any other applicant who had applied via Indeed, but who was not British Pakistani, would have been treated. It is not enough for the claimant to prove a protected characteristic and to prove that he was told he had not been selected. The claimant has not established facts from which we could conclude that being told he was “not selected by employer” was because of his race.[142]By mid-March, over 100 applicants had applied for the Technical Manager role. None of their applications progressed further at that time. None of them were appointed to the Technical Manager role. The fact that the claimant was subsequently (following his further application) invited to interview, having submitted the same CV which referred to his race, is also inconsistent with the suggestion that the claimant has proved facts from which we could conclude that race was in any sense a reason why he was not selected for the role of Technical Manager in March 2024.[143]We therefore conclude that the burden does not shift to the respondent to prove a non-discriminatory reason why the claimant was “not selected by employer” in March 2024. However, we are also satisfied that the respondent presented sufficiently cogent evidence, which we accept, that the reason why the claimant was told that he was “not selected” for the role of Technical Manager in March 2024 was in no sense whatsoever because of race. It was because the recruitment process had been paused for everyone at that time, and this is how the pause showed on the Indeed platform. Discrimination because of perceived disability[144]At the time that the claimant’s application was changed to ‘not selected by employer’ the respondent only had the information provided by the claimant on his CV. Whilst anyone reading the CV would have known he had a stammer, they could not have known if it had any adverse effect on its ability to carry out normal day-to-day activities, because the CV did not give any further detail. At the date that the claimant’s application was changed to ‘not selected by employer’ we conclude that the respondent did not perceive him to be a disabled person. The claimant has not proved facts from which we could infer that his application was rejected at this point because of a perceived disability.[145]Further, for the same reasons that we have explained in relation to the race discrimination complaint, we are also satisfied that the respondent presented sufficiently cogent evidence to persuade us that the reason why the claimant was “not selected” at this time had nothing to do with his stammer but was because the recruitment process had been paused for everyone at that point. Not being offered an interim role of Technical Manager[146]The claimant relied on Mr. Segynowycz as an actual comparator and submitted that he had been treated less favourably than him. Race discrimination[147]Mr. Segynowycz was a white man, and he was appointed to the role of Interim Technical Manager in May 2024. Mr. Segynowycz was not someone who had applied for the permanent Technical Manager role, and he had not applied for any role via Indeed. Instead, Mr. Segynowycz had made a direct, and recent, approach to Ms. Walker on LinkedIn, having previously worked with the owners of the respondent. Although the claimant had contacted the respondent on LinkedIn, that had been many years earlier in 2017. Mr. Segynowycz’s CV set out, in reverse chronological order, the specific roles he had held at named companies, the duration he had worked for the named companies, and a brief overview of his responsibilities / achievements in respect of most of those. In these respects, his circumstances were materially different to that of the claimant. Considering Section 23 of the EA, Mr. Segynowycz was not a suitable actual comparator for the purposes of the comparison exercise required by Section 13.[148]We have considered whether we can properly infer from Mr. Segynowycz’s appointment or from any of the other evidence that we heard that a hypothetical comparator who had otherwise been in the claimant’s circumstances (i.e., having applied for the permanent role via Indeed with a similar CV to the claimant’s but who was not British Pakistani) would have been offered the interim Technical Manager role. We find that we cannot.[149]The claimant referred in his witness statement to AL. Whilst AL was interviewed for the permanent role in April 2024, and his CV had not mentioned a degree, his CV contrasted with the claimant’s in that he named his existing employer, and he set out specific achievements and responsibilities in both his existing and previous roles. In any event, AL was not interviewed for the Interim Technical Manager role and he had not been successful in his application for the permanent role.[150]The claimant referred in his witness statement to ID and GC, who Ms. Walker had mentioned in her email to Ms. Belinska on 23 April. They had not been identified as alleged actual comparators in the list of issues, and we do not find that they were in comparable circumstances to the claimant. Their CVs were materially different, in that they each set out their career history in reverse chronological order, made clear what their job title had been at each relevant time / in respect of each employer, and what they had done at each company. In any event, neither ID nor GC were interviewed for the interim Technical Manager role nor were they offered the Interim Technical Manager role. Neither ID nor GC were appointed to any of the relevant roles that the claimant complains about in this case.[151]None of the candidates who had applied via Indeed were interviewed for the Interim Technical Manager role and none were offered the role of Interim Technical Manager.[152]The claimant has not proved facts from which we could conclude that he was not offered the role of Interim Technical Manager because of his race.[153]However, in case we are wrong about that, we have gone on to consider whether the respondent has presented sufficiently cogent evidence to prove that the reason why the claimant was not offered the role of Interim Technical Manager was in no sense whatsoever because of his race. We are satisfied that the respondent has. We find that that Ms. Belinska, who took the decision to appoint Mr. Segynowycz as Interim Technical Manager, treated the process of recruiting an Interim Technical Manager as separate to the process for appointing a permanent Technical Manager. This is supported by the fact that the other candidates who, like the claimant, had previously applied for the permanent Technical Manager role via Indeed were also not interviewed for, nor offered, the role of Interim Technical Manager. As we have found, the number of candidates who applied means that some of that number would not have been British Pakistani. Discrimination because of perceived disability[154]At the time that Ms. Belinska appointed Mr. Segynowycz to the Interim Technical Manager role there is no evidence that she had access to information about the claimant’s stammer beyond that he included in his CV, and as we have concluded above, she did not perceive him to be a disabled person. The claimant has not proved facts from which we could infer that he was not appointed to the Interim Technical Manager role because of perceived disability.[155]Further, for the same reasons that we have explained in relation to the race discrimination complaint, the respondent presented sufficiently cogent evidence that the reason why the claimant was not offered the Interim Technical Manager role was in no sense whatsoever because of his stammer. None of the candidates who had applied for the permanent role via Indeed were offered the Interim Technical Manager role and we have found that those candidates would have included people who had not declared any stammer. The role of Technical Manager being changed to that of Technical Manager (Senior)[156]We find that the claimant was told of the change on 4 July 2024, when it was also made clear to him that he would not be appointed to the Technical Manager role that he had already applied for. The revised role of Technical Manager (Senior) was advertised on 4 July. Direct race discrimination[157]The claimant’s case was that the change was part of a “constant rebranding” of the role because he was not wanted due to his British Pakistani heritage. We therefore considered both the change of job title and the rejection of the claimant for the Technical Manager role on 4 July 2024.[158]The claimant relied upon a hypothetical rather than an actual comparator.[159]The cancellation of the interview on 28 June was not itself the less favourable treatment complained of, but the claimant relied upon the cancellation and Ms. Walker’s reference in her email of 8 May 2024 to the claimant being a “strong contender” as being facts from which we should conclude that the job title was changed and his application was rejected because he was British Pakistani.[160]Ms. Walker was not herself involved in deciding who should be invited to interview. We have found that Ms. Belinska did attend the shop floor to investigate the potential metal contamination on 28 June 2024, and we accept her evidence that it was her involvement in this investigation that led to her contacting Mr. Mc Lean to cancel the interview. We cannot properly infer from the cancellation of the interview on 28 June that the role of Technical Manager was changed, or that the claimant was not appointed to the role of Technical Manager, because of the claimant’s race.[161]We have considered whether we can draw an inference from the fact that the interview was not rearranged. Again, in the particular circumstances of this case we find that we cannot properly draw this inference. This was not a situation in which the claimant alone had been initially invited to interview and then was affected by a change of approach. Mr. Gollins, who by 1 July was in his role providing Interim Support at Nantwich, having been asked to interview both JD and the claimant, declined to interview both the claimant and JD. The change in the vacancy from that of Technical Manager to Technical Manager (Senior) affected all candidates who had applied for the Technical Manager role.[162]In the circumstances, we find that the claimant has not established facts from which we could conclude that the claimant was treated less favourably than a hypothetical comparator would have been when the job title was changed to Technical Manager (Senior) and he was rejected for the role of Technical Manager on 4 July 2024.[163]In case we are wrong about this, we have gone on to consider whether the respondent has presented sufficiently cogent evidence to show that the change in job title and the rejection of the claimant’s application for the Technical Manager role was in no sense whatsoever because of his race.[164]We are satisfied that the respondent has adduced sufficiently cogent evidence, and we conclude that the reason why the respondent rejected the claimant’s application for the Technical Manager role on 4 July was because Mr. Gollins had, on his review of the CV of the claimant, genuinely formed the view that the CV did not demonstrate that the claimant had the necessary skills and experience for the Technical Manager role. We are satisfied that Mr. Gollins’ opinion was in no sense whatsoever because of the claimant’s race. The criticisms that Mr. Gollins made contemporaneously in his email of 4 July 2024 are consistent with the CV that the claimant had submitted to the respondent. Whilst in Mr. Gollins’ email several months later, he wrongly criticised an absence of any reference to academic qualifications, that was not something that he took into account in June / July 2024, and we do not find it undermines the reliability of his evidence about why he declined to interview the claimant in June / July 2024. The fact that Mr. Gollins declined to interview not only the claimant but also JD is, we find, consistent with his evidence that his decision was in no sense whatsoever because of race.[165]We also accept that Ms. Belinska’s decision to accept Mr. Gollins’ advice and the fact that she did not push for the claimant’s interview to be rearranged, was in no sense because of the claimant’s race. We find that her evidence about this is supported by the fact that she had been aware of the claimant’s race when she decided to initially invite the claimant to interview. We accept that what had changed was that she had received advice from the Interim Support, Mr. Gollins, about his views on the CV not only of the claimant but also JD. Ms. Belinska was very busy at North Wales. She did not push for JD to be interviewed once Mr. Gollins expressed his view either, and JD was not interviewed.[166]Additionally, with regard to the job title changing, we conclude that a decision had been taken that the respondent should advertise for a candidate with a greater number of years’ experience and offering a higher salary. This is consistent with the fact that the respondent issued a new advertisement, setting out the Technical Manager (Senior) role, specifying that a minimum of ten years’ experience in FCMG/dairy/food was required, and that the salary would be “from £60,000” (rather than £52,000). We find that it is inherently implausible that the respondent changed the job title for the purpose of avoiding appointing the claimant or because of his race, and we find it was not in any sense because of that. Direct discrimination because of perceived disability[167]The claimant invited us to infer from the short period of time between his email to Ms. Griffith (asking her to tell interviewers about his stammer) and her email to him advising that his interview was cancelled, that the reason why he was not appointed to the Technical Manager role and the role was changed to Technical Manager (Senior) was because of his stammer. However, we have found that by 4 July neither Ms. Belinska nor Mr. Gollins had any further information about the claimant’s stammer than the information set out on his CV. Ms. Griffith had not forwarded to them the claimant’s email dated 28 June asking for interviewers to be told about his stammer. As we have explained already, given the limited information on the claimant’s CV, we have concluded that neither Ms. Belinska nor Mr. Gollins, nor Ms. George, perceived the claimant to be a disabled person in the sense discussed in Coffey. The claimant has not established facts from which we could conclude that the role was changed to Technical Manager (Senior) because of his stammer.[168]If we are wrong about this, for the same reasons that we have explained in relation to the race discrimination complaint, we also conclude that the rejection of the claimant’s application for the Technical Manager role and the change of job title to Technical Manager (Senior) was in no sense whatsoever because of his stammer. Ms. Belinska had initially suggested that the claimant should be invited to interview knowing that he had a stammer. She had not herself since received any further information about the claimant’s stammer. What had changed was that she had received advice from the Interim Support, Mr. Gollins, about the CV not only of the claimant but also JD. Mr. Gollins not only declined to interview the claimant, but also JD, who the claimant did not suggest had declared a stammer. Being rejected for the role of Technical Manager (Senior)[169]It was not in dispute that the claimant applied for the role of Technical Manager (Senior) on 5 July 2024 and that he was told that his application had been unsuccessful on 25 July. Direct race discrimination[170]The list of issues did not identify an actual comparator, but in evidence the claimant referred to various people who he said had been treated differently from him and he invited us to infer from this that a hypothetical comparator would have been treated more favourably.[171]The claimant relied upon GF. It was Ms. Ali who put forward to Ms. Belinska GF’s CV to be considered for the Technical Manager (Senior) role, and she also put forward the claimant’s CV to Ms. Belinska for the same purpose. Having been passed GF’s CV with reference to the Technical Manager (Senior) role on 17 July 2024, Ms. Belinska asked Ms. Ali to invite GF to interview. Unlike in the case of the claimant (and JD) GF’s CV had not previously been considered by Mr. Gollins, and GF had not previously been rejected as a candidate for the Technical Manager role. GF’s CV showed that she was currently working as a Quality and Technical Manager for a named cheese company, and it set out in reverse chronological order all the companies she had worked for, the role she had held, and what this had involved. These were factors that lead us to conclude that GF was in materially different circumstances from the claimant. We find that we cannot properly or fairly infer from the fact that Ms. Belinska was willing to interview GF for the Technical Manager (Senior) role that a hypothetical comparator who had not been British Pakistani (but who had submitted a similar CV to the claimant and already been rejected from the Technical Manager role on the basis of that CV) would have been treated any differently to the claimant.[172]The claimant also relied upon JAP, who was interviewed by Ms. Belinska for the Technical Manager role on 4 July, and who Ms. Belinska had proposed to invite to a second interview on 8 July. We did not have a copy of her CV and so we were not in a position to see how her CV compared to that of the claimant. JAP was not a candidate whose CV had been considered by Mr. Gollins, and she was not someone who had applied via Indeed. Instead, she had been personally recommended by an auditor known to Ms. Belinska. We also find that these factors mean that JAP was in materially different circumstances to the claimant (and JD). We cannot conclude from the fact that JAP was interviewed that this means that the rejection of the claimant’s application was materially influenced by his race.[173]The claimant relied upon the fact that Mr. Gollins interviewed JH for the Technical Manager (Senior) role. JH’s CV suggested that he had been working as Group Technical Manager for a specific named food company for the previous almost three years, and that prior to that he had been Technical Manager at two other named food companies for a total of around 8 ½ years. His CV described his key responsibilities in each specific role. This was in contrast to the claimant’s CV which did not name his most recent employer and did not make clear exactly which role he had carried out for which company, or for how long, prior to that. We also find that JH was in materially different circumstances to the claimant. In any event, JH was also rejected for the Technical Manager (Senior) role. We cannot conclude from the fact that JH was interviewed that the rejection of the claimant’s application for the role was materially influenced by his race.[174]The claimant relied upon the fact that Mr. Gollins was subsequently appointed to the Head of Technical role and he invited the Tribunal to draw an adverse inference from this and from an absence of disclosure of a job description, recruitment record or salary approval trail for this appointment. We find that we cannot infer from Mr. Gollins’ subsequent appointment to the Head of Technical role, or the absence of those documents, that the reason why the claimant was rejected for the Technical Manager (Senior) role was his race. We do not find that Mr. Gollins was in a comparable position to the claimant. By the date on which he was appointed Head of Technical, he had been working in an Interim role for the respondent for more than six months. None of the candidates who had applied for the Technical Manager (Senior) role (regardless of race) were considered for the Head of Technical role.[175]The claimant also referred to Ms. Belinska having rejected his application for the Technical Manager (Senior) role “within 60 seconds”, and to this not being communicated to him until 25 July 2024, as being something from which we should infer that the rejection was materially influenced by his race. We have found that Ms. Belinska’s decision that the claimant should not be interviewed for the Technical Manager (Senior) role was actually communicated to Ms. Ali about 1 hour 40 minutes after she sent the CV, rather than 60 seconds. Given that Ms. Belinska had seen the same CV from the claimant previously, we do not consider that we can infer from this timeframe that the reason for the refusal was the claimant’s race. It is clear that Ms. Belinska had made her decision on 18 July, and we do not consider that we can draw any adverse inference from Ms. Ali’s subsequent delay in communicating that to the claimant.[176]We have considered whether we can draw an inference that the rejection was because of race based on the absence of any British Pakistani members of the respondent’s senior leadership team. In the circumstances of this case, we find that we cannot. Despite the large number of candidates, including candidates who were not British Pakistani, none of the candidates were actually successful in being appointed to the Technical Manager (Senior) role.[177]We therefore find that the claimant has not proved facts from which we could conclude that the respondent’s rejection of his application for the Technical Manager (senior) role was less favourable treatment because of race.[178]However, in case we are wrong about that, we have gone on to consider whether the respondent has presented sufficiently cogent evidence to show that the rejection of the claimant’s application for the Technical Manager (Senior) role was in no sense whatsoever because of race. We are satisfied that the respondent has done so, and we conclude that the reason why the claimant’s application was rejected was because Ms. Belinska had already accepted Mr. Gollins’ view (which we have found was unrelated to race) that the claimant’s CV (along with that of JD) did not demonstrate that he met the requirements of the Technical Manager role at Nantwich. Given that a view had been taken that the claimant’s CV did not show that he had sufficient experience for the Technical Manager role when it was advertised at the lower salary, it is not surprising that the claimant’s application for the Senior role was not successful when he used exactly the same CV. Direct discrimination because of perceived disability[179]By the date that Ms. Belinska told Ms. Ali that the claimant should not be interviewed for the Technical Manager (Senior) role, Ms. Belinska still had no information about the claimant’s stammer beyond that he had included in his CV. For the reasons we have already explained, we have concluded that Ms. Belinska did not perceive the claimant to be disabled in the sense discussed in Coffey. The claimant has not presented facts from which we could conclude that the reason why his application for the Technical Manager (Senior) role was rejected was because of his stammer.[180]Further, for the same reasons that we explained in relation to the claim for race discrimination, we conclude that the respondent has presented sufficiently cogent evidence to show that the reason why the claimant was not appointed to the Technical Manager (Senior) role had nothing whatsoever to do with his stammer. Victimisation Was the email 18 June a protected act?[181]The only protected act identified in the list of issues was the claimant’s email on 18 June 2022.[182]The respondent submitted that this was not a protected act. In summary: the respondent said that the wording was akin to the situation in Chalmers where the claimant had used the words “may amount to discrimination” and this had not been a protected act; there was an absence of any express reference to the claimant’s race or stammer in that email; what the claimant said was in any event false and in bad faith.[183]The case law to which we have referred above makes clear that the Tribunal is required to take account of all the factors that are provided in the information given by the employee to the employer, and to consider that information on the basis of how it would be understood by the employer in context, which would include the general facts known about the claimant. The claimant’s email said not only that he had previously raised concerns about “potential discrimination”, but also that the respondent’s “conduct and lack of transparency have only emphasised my concerns.” He had already previously notified ACAS for the purposes of early conciliation (in April) and at or around that time, had alleged his application had been rejected because of his stammer. Ms. Griffith’s later email on 4 July shows that she had been made aware this is what he had been alleging. Taking this context into account, we conclude that the claimant’s email of 18 June can be read as making an implied allegation that he was being discriminated against because of the respondent’s perceptions about his stammer. As we have found as a fact that the claimant did not make this suggestion in his email of 18 June in bad faith, we conclude that the email of 18 June 2024 was a protected act. Was there detriment to the claimant in not being appointed to the roles of Technical Manager / Technical Manager (Senior) : did the claimant have a genuine interest in working for the respondent?[184]For the reasons we have already set out, we found that the claimant did have a genuine interest in working for the respondent, and so we reject the respondent’s submission that the complaint of victimisation must fail on the basis that the claimant had no genuine interest in the roles in any event. Was the claimant subjected to detriment because he had done the protected act? Role of Technical Manager being changed to that of Technical Manager (Senior).[185]We find that the claimant has not proved facts from which we could conclude that the role of Technical Manager was changed to that of Technical Manager (Senior), and he was rejected for the role of Technical Manager at the same time as being told of this change, because he had done a protected act.[186]We cannot infer a causal link from the fact that the claimant was invited to interview before he sent his email of 18 June 2024 and his interview was cancelled at short notice and he was rejected for the role thereafter. Whilst a comparative exercise is not required in a victimisation complaint under Section 27, it is a fact that JD, who had not done any protected act, had also been invited to interview before 28 June 2024 and her application was similarly not actually progressed to interview. Further, we have found as a fact that neither Mr. Gollins nor Ms. Belinska knew about the claimant’s email of 18 June as at 4 July 2024. With regards to the change in job title, the change in job title applied to everyone, which is clear from the fact that a revised job advert was issued. In the circumstances, we do not find that the burden of proof shifts to the respondent.[187]However, if we are wrong about this, we are satisfied that the respondent has provided sufficiently cogent evidence to prove that the reason why the job title changed and the claimant’s application was rejected on 4 July was in no sense whatsoever because the claimant had done a protected act.[188]As we have set out above, we conclude that the reason why the respondent rejected the claimant’s application for the Technical Manager role on 4 July was because Mr. Gollins had, on his review of the CV of the claimant, genuinely formed the view that it did not show that the claimant had the necessary skills and experience for the Technical Manager role. We are satisfied that the reason why he formed this view was in no sense whatsoever because the claimant had done a protected act. Mr. Gollins was not at that time aware of the claimant’s email of 18 June 2024.[189]We also accept that the fact that Ms. Belinska accepted Mr. Gollins’ advice and did not push for the claimant’s interview to be rearranged was in no sense whatsoever because of the protected act. Again, at the relevant time, Ms. Belinska was not aware of the claimant’s email of 18 June 2024. She was busy with her responsibilities at North Wales, and it is understandable that she would take seriously the views of the person currently in place as Interim Support at the site where the permanent vacancy was based.[190]Additionally, with regards to the job title changing, we accept that a decision had been taken that the respondent should advertise for a candidate with a greater number of years’ experience and offering a higher salary. This is supported by the advertisement that was published. We find that it is inherently implausible that the respondent changed the job title for the purpose of avoiding appointing the claimant or because he had done a protected act and we find it was not in any sense whatsoever because of that. Rejection for role of Technical Manager (Senior).[191]The claimant applied for the role of Technical Manager (Senior) on 5 July 2024, and he was told that his application had been unsuccessful on 25 July.[192]Although the claimant was rejected for the role at a point in time that came after he had done a protected act, this is not by itself enough to establish a prima facie case of victimisation. We have already explained why we do not consider that we can draw an inference from the short notice cancellation of the interview on 28 June.[193]In any event, if we are wrong about that, and the burden does shift to the respondent, we are satisfied that the respondent presented sufficiently cogent evidence to prove that the reason why the claimant was not appointed to the Technical Manager (Senior) role was in so sense whatsoever because the claimant had done a protected act. Ms. Belinska did not know about the claimant’s email of 18 June 2024 when, on 18 July, she decided the claimant should not be invited to interview in respect of the Technical Manager (Senior) role. It was this that effectively ended the claimant’s application for the role of Technical Manager (Senior). Whilst Ms. George would have been the ultimate decision-maker in terms of who to appoint as Technical Manager (Senior), she wouldn’t appoint an external candidate to that role who had not been invited to interview for the role. Ms. Belinska had already accepted Mr. Gollins’ view (which we have found was unrelated to the protected disclosure) that the claimant’s CV (along with that of JD) did not demonstrate that he met the requirements of the Technical Manager role at Nantwich. Given that the claimant then applied for the Senior role using the same CV, it is not surprising that his application was not successful. It would have been very surprising if an applicant who had previously been rejected on the basis of their CV was then successful in applying for a more senior role using the same CV.[194]We have concluded that the claimant was not discriminated against or victimised, and so it is not necessary to go on to consider time limits.
Disposal
[195]Given our conclusions above, the complaints will all be dismissed. Approved by: Employment Judge C Knowles 10 August 2026 Notes All judgments (apart from judgments under Rule 51) and any written full reasons for judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s). If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Annex: List of Issues (Liability Only)
Disposal
[1]Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before Friday 10 May 2024 may not have been brought in time.1[2]Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 2.2. If not, was there conduct extending over a period? 2.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 2.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 2.4.1. Why were the complaints not made to the Tribunal in time? 2.4.2. In any event, is it just and equitable in all the circumstances to extend time? Disability[3]Did the respondent perceive the claimant to be disabled. The Tribunal will consider whether the respondent perceived: 3.1. That the claimant had the physical or mental impairment (stammer) 3.2. That the impairment had a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities (if measures were being taken to treat or correct the impairment, but for those measures would the impairment be likely to 1 There was a first period of conciliation between 2 April 2024 and 2 May 2024. There was a second period of early conciliation between 9 August 2024 and 12 August 2024, and the claim form was presented on 17 August 2024. The parties proceeded on the basis that the second ACAS conciliation certificate was valid for the purposes of extending time in respect of acts/ omissions occurring after the first ACAS conciliation certificate. have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities. 3.3. That the effect was long term in that: 3.3.1. It had lasted for at least 12 months? or 3.3.2. It was likely to last at least 12 months or the rest of the claimant’s life, if less than 12 months. 3.4. If measures were being taken to correct or treat the impairment, but for those measures would the impairment be likely to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities? Direct discrimination on the basis of race and perceived disability (s. 13 EqA)[4]Did the respondent treat the claimant in one or more of the following ways? 4.1. Being rejected for the role of Technical Manager. (15 March 2024). 4.2. not being offered an interim role of Technical Manager. 4.3. the role of Technical Manager being changed by the Respondent to that of Technical Manager (Senior). 4.4. Being rejected for the role of Technical Manager (Senior).[5]If so was the claimant treated by the respondent less favourably than it treated or would have treated the comparators? 5.1. Paul Segynowycz is identified as an actual comparator for the less favourable treatment at 5.2 above (i.e. not being offered an interim role of Technical Manager). 5.2. hypothetical comparator for (ii) and all the other alleged less favourable treatment[6]If so, has the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was materially influenced by one or more of the protected characteristics?[7]If so, what is the respondent’s explanation? Does it prove a non-discriminatory reason for any proven treatment? Victimisation: s.27 EqA[8]Were the following matters protected acts? 8.1. On the 18th of June at 13.22 the Claimant reached out to Sarah Griffith and expressed his concerns with regards to the recruitment process and renaming of the role and re advertisement and that he had already expressed his discrimination concern in the way his application was handled and lack of progression.[9]Were the following acts, acts of detriment?- 9.1. The role of technical manager being changed by the respondent to that of Technical Manager (senior); 9.2. Being rejected for the role of Technical Manager (senior)).[10]Did the respondent subject the claimant to the detrimental treatment as alleged?[11]If so, did it carry out the alleged detrimental treatment because the claimant had done a protected act? Can it prove a non-discriminatory reason for the conduct?