Employment Judge S PoveyIn person for claimantMR WHEATON (instructed by COUNSEL) for respondentDate 20 March 2023
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The claims of direct discrimination and harassment which were alleged to have occurred before 27 December 2019 were brought out of time and it was not just and equitable to extend time. As such, the Tribunal has no jurisdiction to consider them and they are struck out.[2]In any event, all the claims of direct discrimination and harassment by reason of race are not made out and are dismissed.[3]The Respondent concedes that it failed to provide the Claimant with a written statement of particulars of employment, in breach of its duty under section 1 of the Employment Rights Act 1996. However, there can be no award of compensation, as the Tribunal has not found in favour of the Claimant in respect of her claims under the Equality Act 2012 (per section 38 of the Employment Act 2002). Case No: 1601749/2020 - 2 - EMPLOYMENT JUDGE S POVEY Dated: 20 March 2023 Order posted to the parties on 22 March 2023 For Secretary of the Tribunals Mr N Roche Case No: 1601749/2020 - 1 - EMPLOYMENT TRIBUNALS BETWEEN CLAIMANT RESPONDENT MS I NGULUWE V BACSTAL PAC LLP HELD REMOTELY ON: 13, 14, 15, 16 & 17 MARCH 2023 BEFORE:
REASONS
Background
[3]This is a claim by Isabel This is a claim by Isabel Nguluwe (‘the Nguluwe (‘the ClaimantClaimant’)’) against her former against her former employer, employer, Bacstal PacBacstal Pac LLPLLP (‘the (‘the RespondentRespondent’). ’). The The ClaimantClaimant was was employed by employed by the the RespondentRespondent from from 88 April 2019 until the April 2019 until the termination of termination of her employment her employment with effect fromwith effect from 3030 March 2020. She began early March 2020. She began early conciliation on the conciliation on the 22 June22 June 2020 2020 whichwhich ended on the ended on the 22 July 202022 July 2020. On . On 2121 August 2020, August 2020, tthe he ClaimantClaimant presentepresentedd her claim her claim toto the Employment the Employment TribunalTribunal. .[4]The The ClaimantClaimant brought complaintsbrought complaints of direct race discrimination and of direct race discrimination and harassment on the grounds of raceharassment on the grounds of race, , as defined by the Equality Act 2010as defined by the Equality Act 2010 (‘EqA 2010’)(‘EqA 2010’). . The Claimant is a black African woman. The Claimant is a black African woman. She also claimedShe also claimed that that ththe e RespondentRespondent failed to provide her with a written failed to provide her with a written statement of her statement of her particulars of employment, contrary to particulars of employment, contrary to section 1section 1 ofof the Employment the Employment Rights Act 1996Rights Act 1996 (‘the ERA 1996’)(‘the ERA 1996’). .[5]The The RespondentRespondent is a limited liability partnership which provides pis a limited liability partnership which provides payroll ayroll services to sservices to small businesses. It mall businesses. It resistresisteded the discrimination claims in their the discrimination claims in their entirety. It denied that entirety. It denied that tthe allegations thahe allegations that t werewere made took place made took place oorr, , if if they did they did take place as alleged, take place as alleged, that they were in no way motivated bythat they were in no way motivated by or or related torelated to the the ClaimantClaimant’s’s race. race. The The RespondenRespondentt also took issue with also took issue with whether some of the allegations of discrimination had been brought whether some of the allegations of discrimination had been brought within the time limit providwithin the time limit provided by the EqA 2010, namely within three ed by the EqA 2010, namely within three months of thmonths of the alleged acts occurring. e alleged acts occurring.[6]The The RespondentRespondent conceded that conceded that itit had fahad failed to provide the iled to provide the ClaimantClaimant with with a a written written statement of her statement of her particulars of employmentparticulars of employment,, in breach of in breach of its its obligation under sectioobligation under section n 1 1 of the of the ERA 1996. ERA 1996.[7]Following a period ofFollowing a period of case management, the parties agreed a list of case management, the parties agreed a list of issuesissues ((reproducedreproduced, so far as liability was , so far as liability was concernedconcerned, in, in the the AppendixAppendix)). . We were provided with a paginated, indexed bundle of documents (‘the We were provided with a paginated, indexed bundle of documents (‘the Bundle’). Bundle’). In addition, In addition, the the ClaimantClaimant helpfully provided a Scothelpfully provided a Scottt SSchedule, chedule, which set out in detail the allegations which set out in detail the allegations of discrimination of discrimination that shethat she pursued pursued aand that she made againnd that she made against various members of staff employed by the st various members of staff employed by the RespondentRespondent. .[8]During the course of the hearing, which lasted During the course of the hearing, which lasted ffive daive days ays and was nd was conducted remotely conducted remotely video,video, wwe heard oral evidence from e heard oral evidence from thethe ClaimantClaimant aand we heard oral evidence from nd we heard oral evidence from the followingthe following witnesses on behalf witnesses on behalf of the of the RespondentRespondent, n, nearly all of whom haearly all of whom hadd been the subject of allegations been the subject of allegations made by the made by the ClaimantClaimant:: 8.1. Sion Jones (Payroll Manager & the Sion Jones (Payroll Manager & the ClaimantClaimant’s line manager)’s line manager) 8.2. Lis Daly (Partner)Lis Daly (Partner) 8.3. Dylan Morris (IT Manager)Dylan Morris (IT Manager) Case No: 1601749/2020 - 3 - 8.4. Anne Hawley Anne Hawley (Receptionist)(Receptionist) 8.5. RebeccRebecca Ricea Rice--Roberts (PartneRoberts (Partner)r) 8.6. Sian Williams (Partner)Sian Williams (Partner) 8.7. Rhys Griffiths (Chartered Accountant)Rhys Griffiths (Chartered Accountant) 8.8. Emlyn Griffiths (Partner)Emlyn Griffiths (Partner) 8.9. Sera Griffith (Sera Griffith (TraineTrainee Charted Accountant)e Charted Accountant) 8.10. Yanek Piechota (Trainee Chartered Accountant)Yanek Piechota (Trainee Chartered Accountant)[9]Each witness we heard from provided and adopted their written Each witness we heard from provided and adopted their written statement as statement as their evidence to the their evidence to the TribunalTribunal. . We also received written and We also received written and oral submissions oral submissions fromfrom Mr Wheaton Mr Wheaton for the for the RespondentRespondent andand written and written and oral submissionsoral submissions from the from the ClaimantClaimant. . The Law The Law Discrimination Discrimination
The Law
[10]Direct discrimination is defined by section 13(1) of the EqA 2010, and states as follows: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[11]Harassment is defined by section 26 of the EqA 2010 and, so far is relevant, states as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[12]The “relevant protected characteristics” include race (per section 26(5) EqA 2010).[13]The standard of proof is the balance of probabilities. The burden of proof in discrimination complaints has two stages, as follows (per section 136 Case No: 1601749/2020 - 4 - of the EqA 2010, Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC and Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931, CA): 13.1. The Claimant has to prove facts from which the Tribunal could infer that discrimination has taken place; 13.2. If so, the burden ‘shifts’ to the Respondent to prove that the treatment in question was in no way because of a protected characteristic.[14]Section 123 of the EqA 2010 requires that proceedings under the EqA 2010 may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the Tribunal thinks just and equitable. By reason of section 123(3), conduct done over a period of time is treated as being done at the end of the period, for the purpose of calculating the three-month time limit for bringing proceedings. Written statement of particulars of employment[15]Prior to 6 April 2020, section 1 of the ERA 1996 stated: Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment[16]Where an employer fails to provide a written statement of particulars, the Tribunal must make an award equivalent to two weeks wages or, if it considers it just and equitable to do so, an award equivalent to four weeks wages (per section 38 of the Employment Act 2002).[17]However, no award under section 38 of the Employment Act 2002 can be made unless the Tribunal finds in the employee’s favour in proceedings relating to a claim under any of the jurisdictions listed in Schedule 5 to the Employment Act 2002. That list includes a claim of discrimination under the EqA 2010. Findings Findings of factof fact Introduction
Introduction
[18]ThThe Claimant began her employment with the e Claimant began her employment with the RespondentRespondent as an as an Admin/Payroll Admin/Payroll AssistantAssistant. Whil. Whilst the st the ClaimantClaimant had a background in had a background in administration, she had administration, she had no experienceno experience of payroll. However, the of payroll. However, the RespondentRespondent believedbelieved that she that she had the skills and aptitude to be trainedhad the skills and aptitude to be trained up in payrup in payrolloll..[19]The The Claimant’sClaimant’s line managerline manager in the payroll department was Sion Jones. in the payroll department was Sion Jones. It was not in dispute that within a few It was not in dispute that within a few monthsmonths of startingof starting, the Claimant , the Claimant and Mr Jonesand Mr Jones’’ relationship relationship deteriorated. deteriorated. The Claimant The Claimant believbelieveded Mr Jones Mr Jones Case No: 1601749/2020 - 5 - to be condescending to be condescending andand unfairly critical of her work. Mr Jones felt that unfairly critical of her work. Mr Jones felt that the Claimant was the Claimant was refusing refusing to follow to follow simple instructionssimple instructions. .[20]Matters came to a head on 18 June 20Matters came to a head on 18 June 201919, when meetings were held , when meetings were held separately with the Claimant and Mr Jonesseparately with the Claimant and Mr Jones and then jointly with both of and then jointly with both of them presethem present. The events of 18 June 20nt. The events of 18 June 2019 a19 are considered in more detail re considered in more detail belowbelow..[21]The ClaimantThe Claimant’’s s probationary period was extended by the Respondent probationary period was extended by the Respondent on on two two occasionsoccasions.. Towards the end of the first extension (in October 2019), Towards the end of the first extension (in October 2019), the Claimathe Claimantnt’’s s rorolle was changed. She began woe was changed. She began working rking halfhalf of the time as of the time as aann Accounts Assistant and the Accounts Assistant and the other half other half on on RReception. The eception. The RespRespondentondent said that said that concernsconcerns arose about the arose about the ClaimantClaimant’’s pers perforformance in her new mance in her new roles, whichroles, which, it said, were of a similar nature to, it said, were of a similar nature to thosethose raised in Payrollraised in Payroll ((namely, namely, of not of not listening tolistening to or following or following instructionsinstructions)). .[22]The Covid The Covid pandemic hit inpandemic hit in March 2020, followed March 2020, followed by the roll out of the by the roll out of the GovernmentGovernment’’s furlough scheme. s furlough scheme. All but All but twotwo of the Respondentof the Respondent’’s staff s staff worked from home worked from home in the midst of the national lock downin the midst of the national lock down. . Ann Hawley Ann Hawley and Sarand Sara Williams were furlougheda Williams were furloughed. The Respondent also took the . The Respondent also took the decision, decision, faced with faced with a likelya likely reductioreduction in its workload and n in its workload and givengiven its its concernsconcerns about the Claimantabout the Claimant’’s s performanceperformance toto datdate, to e, to terminate her terminate her employmentemployment. The . The ClaimantClaimant’’s employment s employment endeendedd on 31 March 2020.on 31 March 2020.[23]The Claimant alleged that her The Claimant alleged that her treatmenttreatment during her employment by during her employment by various staff and managers of the Respondent various staff and managers of the Respondent constitutedconstituted less less favourablefavourable treatmenttreatment and harassment and harassment by reason of her race.by reason of her race. We We consconsideredidered those allegathose allegations below.tions below. General Observations General Observations[24]We We gavgavee our reasons our reasons regarding the allegations of discrimination regarding the allegations of discrimination in line in line with thwith the e List of IssuesList of Issues and the and the Scott Scott SSchedulechedule, a, as s both wereboth were utilised by utilised by the parties in presenting their the parties in presenting their respective respective casescases.. HHowever, we owever, we begbeganan with with some general obsome general observationsservations about the allegatiabout the allegations made by the ons made by the ClaimantClaimant and the evidence we saw and heard.and the evidence we saw and heard.[25]Some of the allegations made by the Some of the allegations made by the ClaimantClaimant were,were, in effect, her word in effect, her word against the word of one or more of the against the word of one or more of the RespondentRespondent’’s witnesses. To hels witnesses. To help p determine wdetermine which account we preferred, the hich account we preferred, the TribunalTribunal hahad regard to the d regard to the following factors. following factors.[26]ThereThere was a consistency of complaintwas a consistency of complaints and concerns about the s and concerns about the ClaimantClaimant’s’s competency during her employment from different managers competency during her employment from different managers across different aspects of the across different aspects of the ResRespondentpondent’’s business. s business. Given Given the the breadth of those concernsbreadth of those concerns, it was, i, it was, in our vien our view,w, more likely that these more likely that these were genuine cowere genuine concernsncerns,, rrather than a concerted and coordinated ather than a concerted and coordinated campaign of racial discrimination. campaign of racial discrimination. Case No: 1601749/2020 - 6 -[27]There was a failure on the part of the There was a failure on the part of the ClaimantClaimant to to raise any coraise any complaints of mplaints of racial discrimination or racially mracial discrimination or racially motivated treatment throughout the otivated treatment throughout the entiretyentirety oof her employment. f her employment. Indeed, some of the events Indeed, some of the events complainedcomplained of of now were never raised at all by the Claimant at the time. now were never raised at all by the Claimant at the time. We remWe reminded inded ourselves that tourselves that this was his was a a ClaimantClaimant who did who did raise complaints about raise complaints about colleagues. In pacolleagues. In particular, as we rticular, as we returned to latreturned to later in these reasons, ter in these reasons, the he CClaimantlaimant raised complaints about the conduct of raised complaints about the conduct of herher line manager, Sline manager, Sioion n JonesJones. She. She was afforwas afforded the opportunityded the opportunity,, in the course of meetings in in the course of meetings in June 2019 with June 2019 with the the partnerspartners of the of the RespondentRespondent aand in a lettnd in a letter which she er which she wrote herselfwrote herself, t, to o raiseraise allegationsallegations and concerns. Whilstand concerns. Whilst she did make she did make allegations about Mr Jones's conductallegations about Mr Jones's conduct, she, she made no reference to any made no reference to any rracial acial discrimination or any racial element to the alleged manner in which discrimination or any racial element to the alleged manner in which Mr Jones conducted himself.Mr Jones conducted himself.[28]OOnn the the ClaimantClaimant's own ev's own evidenceidence, s, she sought advice he sought advice from Citizens from Citizens AdviceAdvice in the summer of 2019in the summer of 2019, at a , at a time when, on her case, a number of time when, on her case, a number of thethe aallegedlleged incidents of racial discrimination were taking place. However, incidents of racial discrimination were taking place. However, again again on the on the ClaimantClaimant’’s s own case,own case, she did not seshe did not seek advice about her ek advice about her employment. Insemployment. Instead, she sought advice about her passport and tead, she sought advice about her passport and naturalisationnaturalisation. . In our view, there was In our view, there was nono good reason whygood reason why,, ifif the the ClaimantClaimant believed that she was being believed that she was being subjected to subjected to discriminatdiscrimination, ion, harassment and unfavourable harassment and unfavourable treatmenttreatment at wat workork, that she would not, that she would not have sought advice from have sought advice from CitizensCitizens’’ AdvAdvice ice either ieither inn the summer of 2019the summer of 2019 oor at sor at some me other other time during the course of her employment. The fact that time during the course of her employment. The fact that she did not she did not suggestedsuggested thatthat any concerns she had about her treatmeany concerns she had about her treatment nt in in work were not work were not as pas present or resent or as as realiserealised as they d as they were to suwere to subsequently bsequently becomebecome. .[29]The The TribunalTribunal reminded itselfreminded itself tthat the hat the RespondenRespondentt had chosen to employ had chosen to employ the the Claimant fClaimant fully aware of her raceully aware of her race and ethnicityand ethnicity. The . The RespondentRespondent had had chosen to extend the chosen to extend the ClaimantClaimant’’s emps employment on loyment on two two occaoccasionssions, , which which we returnwe returneded to in more detailto in more detail, below, below. If, as . If, as allegedalleged by the by the ClaimantClaimant, , the the RespondentRespondent waswas treating her less favourably and harassing her because treating her less favourably and harassing her because of her raceof her race, w, why would hy would itit employ her in the employ her in the firstfirst place and why would place and why would itit continuecontinue with with and extendand extend hher employmenter employment on two separate occasionson two separate occasions? It ? It was not plausiblewas not plausible,, in our view, thain our view, that t numerous members of staff and numerous members of staff and manamanagement were hostile to the gement were hostile to the ClaimantClaimant because of her racebecause of her race. T. That hat waswas inconsistent with how, in factinconsistent with how, in fact, , ththe staff and managemente staff and management actedacted in in recruitinrecruiting and retaining the Claimant, until at least March 2020.g and retaining the Claimant, until at least March 2020...[30]We also notedWe also noted tthat thehat there was evidence of the re was evidence of the RespondentRespondent taking advice taking advice from an external from an external human resources (human resources (‘‘HRHR’’)) bodybody aabout decisions about decisions around round the the Claimant’Claimant’s employment, most notably the decision to dis employment, most notably the decision to dismiss her smiss her and the decision to refuse her request and the decision to refuse her request to be furloughed.to be furloughed. Case No: 1601749/2020 - 7 -[31]IIn respect of those allegations where it was n respect of those allegations where it was the Claimantthe Claimant’’ss word against word against anotheranother’’ss, , TribunalTribunal took into accoutook into account nt the above factorsthe above factors, , whichwhich assisted assisted us in reaching our conclusions. us in reaching our conclusions.[32]OtherOther comcomplaints plaints and allegations and allegations made by the made by the ClaimantClaimant hadhad documentary evdocumentary evidence relating to them andidence relating to them and the the TribunalTribunal was mindfulwas mindful tthat hat those documents were contemporaneous, whether in the form those documents were contemporaneous, whether in the form of emails, of emails, notes or letters. notes or letters. TThey had been created without any litigationhey had been created without any litigation or or TribunalTribunal proceedings in mind or being contemplated. Thoproceedings in mind or being contemplated. Those factors allowed the se factors allowed the TribunalTribunal to place particular weight on the documentary evidenceto place particular weight on the documentary evidence bboth as oth as to what it contained andto what it contained and, just, just as importaas importantly, wntly, what it did not contain. hat it did not contain. The C The Claimantlaimant’’s Complaintss Complaints[33]As deAs detailed tailed above, we structured our reasons on the Scott Schedule (above, we structured our reasons on the Scott Schedule (at at [41] [41] –– [56] of the Bundl[56] of the Bundle)e) and and the List of Issuesthe List of Issues ((which which we include as an we include as an Appendix to Appendix to ththese reasonsese reasons)). There were. There were 22 separate allegations of 22 separate allegations of either direct race discrimination and/or harassmeneither direct race discrimination and/or harassment by reasons of racet by reasons of race. . As well as containing the Claimant’s description of the alleged As well as containing the Claimant’s description of the alleged discriminadiscriminationtion and harassment, the and harassment, the Scott Scott Schedule included the dates Schedule included the dates when the alleged conduct took place, the people who allegwhen the alleged conduct took place, the people who allegedly edly undertook the conduct and the Respondenundertook the conduct and the Respondent’s response to each t’s response to each allegation.allegation.[34]We set them ouWe set them outt, to a large , to a large extent, in the order they extent, in the order they appearedappeared in the in the Scott Schedule and have grouped Scott Schedule and have grouped and and determineddetermined them them accordingaccording to to whether they were allegations of direct whether they were allegations of direct discriminationdiscrimination, of , of harassment or, harassment or, in one instin one instance, an allegation of both direct discriminatiance, an allegation of both direct discrimination and on and harassment.harassment. The Allegations of Direct Discrimination The Allegations of Direct Discrimination Failure to Repair Failure to Repair the Claimantthe Claimant’’s s ComputerComputer[35]We beganWe began with the allegation that the with the allegation that the RespondentRespondent failed to repair the failed to repair the ClaimantClaimant computer in a timely manncomputer in a timely manner due to the colour of her skiner due to the colour of her skin (at (at [41] of the Bundle[41] of the Bundle and Paragraph 2.2.4 of theand Paragraph 2.2.4 of the List of IssuesList of Issues)). .[36]This related to the evidence of Dylan Morris, who was the This related to the evidence of Dylan Morris, who was the RespondentRespondent’s ’s IT manager. IT manager. He explained that there was an issue with the Claimant’s He explained that there was an issue with the Claimant’s computer, whiccomputer, which required changing the hard drh required changing the hard drive. Whilst the ive. Whilst the hardware hardware was beingwas being replaced, the Claimant had access to an alreplaced, the Claimant had access to an alternative computer. ternative computer. WeWe preferred the evidepreferred the evidence of Mr Morrisnce of Mr Morris,, as it was both clear and as it was both clear and supported by documentary evidence. In our judgement, the supported by documentary evidence. In our judgement, the ClaimClaimantant misunderstood issues between misunderstood issues between the the softwaresoftware package used by the package used by the RespondentRespondent (Autorec) a(Autorec) and nd the the hardwarehardware (t(the issue with hhe issue with her er computer’scomputer’s hardhard drivedrive)). . There was an issue with the software but that was unrelated There was an issue with the software but that was unrelated Case No: 1601749/2020 - 8 - with the fault with the fault oon the n the ClaimantClaimants s computercomputer. . The soThe software ftware problemproblem was a was a user issueuser issue, , related to the datarelated to the data,, inin tthe form ofhe form of bbank stank statements that weatements that were re being being scanned and then scanned and then ininputted. The hardwareputted. The hardware issue was resolved by issue was resolved by Mr MorrisMr Morris without any undue delaywithout any undue delay (by way of (by way of a reinstallation procedure a reinstallation procedure undertaken by Mr Morundertaken by Mr Morris)ris)..[37]IIn respect of the n respect of the Autorec software Autorec software probproblelemsms, , Mr Morris emailed the Mr Morris emailed the ClaimantClaimant with suggestions for how to resolve thwith suggestions for how to resolve thee issueissue (at [145] (at [145] –– [[146] 146] of the Bundle)of the Bundle). There was . There was nono evidevidence before us thaence before us that the t the ClaimantClaimant ever ever responded to that eresponded to that e--mail, saying that mail, saying that the problem had not been fixed or the problem had not been fixed or that the proposals had not resolved the issue.that the proposals had not resolved the issue.[38]SimilarlySimilarly,, with the hardware reinstallation thawith the hardware reinstallation that t MMr Morris under Morris undertook out of rtook out of office hours, there was no evidence of the office hours, there was no evidence of the ClaimClaimantant ever coming back to ever coming back to Mr Morris to say Mr Morris to say ththat it hat it hadad not workednot worked or not or not resolved the resolved the hardware hardware problem. problem.[39]For those For those reasons, we found that there was reasons, we found that there was nono delay in addressing the delay in addressing the ClaimantClaimant’s’s IT issuesIT issues, , still lessstill less, , anany unfavourable or dy unfavourable or discriminatory iscriminatory treatreatment, racial or otherwise. tment, racial or otherwise. The Claimant failed to The Claimant failed to proveprove ffacts from acts from which we which we couldcould inferinfer discrimination.discrimination. Extension Extensionss of Probationof Probation[40]The second allegation of direct discrimination relateThe second allegation of direct discrimination relatedd to the extension to the extension of of the the ClaimantClaimants probationary periodss probationary periods (at (at [42] of the Bundle [42] of the Bundle and Paraand Paragraph graph 2.2.1 of the List of Issues)2.2.1 of the List of Issues). In our. In our judgement, the judgement, the RespondentRespondent could not could not have been clearer as to the reasons for why the have been clearer as to the reasons for why the ClaimantClaimant’’s probationary s probationary periods were extended. We began by reminding ourselvesperiods were extended. We began by reminding ourselves that thethat the ofoffer fer ofof employment employment made tomade to, and accepted by,, and accepted by, the the ClaimantClaimant was clear was clear that it that it was was susubject to the successful completion of a three month bject to the successful completion of a three month probprobationary ationary periodperiod aand tnd that during the probationary periodhat during the probationary period,, either party could either party could terminate the terminate the contcontractract with one week's noticewith one week's notice (at [81] of the Bundle).(at [81] of the Bundle).[41]The The ResRespondentpondent was quite entitled to conclude that twas quite entitled to conclude that the probationary he probationary period had not been successfully completed. The first time that period had not been successfully completed. The first time that happened was because the happened was because the RespondentRespondent did not feel able to fairly assess did not feel able to fairly assess the the ClaimantClaimant because of the issuebecause of the issuess she had had with she had had with SionSion JonesJones (considered in more detail, below)(considered in more detail, below). . In a lIn a letter of 24 June 2019 (at [122]etter of 24 June 2019 (at [122] of of the Bundle), the Bundle), the the RespondentRespondent confirmed an confirmed an earlierearlier didiscussionscussion with the with the ClaimanClaimantt (on 18 June 2019)(on 18 June 2019) that her prothat her probationary period was to be bationary period was to be extended becauextended because se ““duedue to the to the disputedispute arisingarising betweenbetween yourself and [Mr yourself and [Mr JonesJones]], we cons, we consider that it has not been possible to properly assess your ider that it has not been possible to properly assess your competencecompetence for the role during your original probationary for the role during your original probationary periodperiod..””[42]That decision wasThat decision was, in one, in one sense,sense, benefibeneficial to the cial to the ClaimantClaimant. The . The RespondentRespondent could have simpcould have simply ly ended her employment at tended her employment at that staghat stage e with with one week's notice. The one week's notice. The RespondentRespondent did not do that. The did not do that. The RespondentRespondent Case No: 1601749/2020 - 9 - wanted to give wanted to give the Claimantthe Claimant more timemore time iin order tn order to fairly assess her o fairly assess her competence. competence.[43]The ClaimantThe Claimant’’ss probationary peprobationary period was extended againriod was extended again from October from October 2019.2019. The reasonThe reason for thfor that extensioat extension were similarlyn were similarly clearclear, as was the , as was the evidence of the various witnesses that we heard from.evidence of the various witnesses that we heard from. The reasoning The reasoning for for the the secondsecond extension extension was was that the that the ClaimantClaimant had recently moved from had recently moved from the payroll department the payroll department to undertake a role whto undertake a role which was split between ich was split between reception and areception and accounts (per the letter of 8 November 2019 at [140] of ccounts (per the letter of 8 November 2019 at [140] of the Bundle).the Bundle).[44]The reasonThe reasonss for extending the for extending the Claimant’Claimant’ss pprobationaryrobationary periodperiodss wwereere logicallogical,, reasonablereasonable and and clear. In our judgement, iclear. In our judgement, it was fanciful to suggest t was fanciful to suggest that that the the probation periodprobation period had been had been extended extended because of the because of the ClaimantClaimant’’s s race. race.[45]In In additionaddition, , the the ClaimantClaimant raised no complaints at the timeraised no complaints at the time of each of each extensionextension. If she truly. If she truly bbelieved that the decisions were racially motivatedelieved that the decisions were racially motivated,, wwhy did she not raise it with anybody, eihy did she not raise it with anybody, either inside or outside of the ther inside or outside of the RespondRespondentent’’ organisation? The organisation? The TribunalTribunal concludedconcluded that the that the ClaimantClaimant did did not complain not complain ((and nor did she resignand nor did she resign)) because because she did she did not believe at the not believe at the timetime that those decisions were racially motivatthat those decisions were racially motivated. ed.[46]All of this was aAll of this was against the gainst the backgroundbackground of an offer of of an offer of employment temployment that hat included a right to terminate with one week's notice, which the included a right to terminate with one week's notice, which the RespondentRespondent did not did not triggertrigger. . There had been issuesThere had been issues in payrollin payroll betweenbetween the Claimant and Mr Jonesthe Claimant and Mr Jones, so the , so the RespondentRespondent switched the switched the ClaimantClaimant from one depfrom one department to another. The artment to another. The RespondentRespondent did ndid not have to do ot have to do that. It did so to benefit the that. It did so to benefit the ClaimantClaimant andand,, on any analysison any analysis,, thethe decisions decisions to extend the to extend the ClaClaimantimant’’ss pprobationary period could not be considered as robationary period could not be considered as less favourable treless favourable treatmentatment and and were in no way informed by the were in no way informed by the ClaimantClaimant’’s s race. race. The The Claimant Claimant agaagain in failed to prove facts from which we could infer failed to prove facts from which we could infer discrimination. discrimination. The Claimant The Claimant’’s Trainings Training[47]The third allegation relateThe third allegation relatedd toto SionSion Jones'Jones' apparent unwillingness to train apparent unwillingness to train the the ClaimantClaimant when she was in the when she was in the payroll payroll depadepartment (at [42] rtment (at [42] –– 43]43] of the of the Bundle and PBundle and Paragraph 2.2.3 of the List of Issues).aragraph 2.2.3 of the List of Issues).[48]As noted aboveAs noted above, it was not in dispute that the , it was not in dispute that the ClaimantClaimant had never had never worked in payroll worked in payroll prior to joining the Respondentprior to joining the Respondent. Mr Jones'. Mr Jones' evidence evidence was was that he did train the that he did train the ClaimantClaimant but was too busy to train her fully. That but was too busy to train her fully. That evievidencedence was supported by the decision of the was supported by the decision of the RespondentRespondent to enrol the to enrol the ClaimantClaimant on a couron a coursese (at [(at [87] of the Bundle)87] of the Bundle). . Case No: 1601749/2020 - 10 -[49]TThe fact that Mr. Jones had also provided some initial training was he fact that Mr. Jones had also provided some initial training was supported by the supported by the ClaimantClaimant’’s clear abis clear abilitylity ffrom early on rom early on in her in her employmentemployment to do some payroll tasksto do some payroll tasks, w, which hich contracontrasstedted to to her abilitiesher abilities at at the start of her employmentthe start of her employment. .[50]However, However, MrMr Jones'Jones' evidence was evidence was also also that the that the ClaimantClaimant would move on would move on to a task without properly completing thto a task without properly completing the previouse previous oneone. . TThe he ClaimantClaimant had alleged had alleged that that Mr. JoMr. Jones said nes said that she was too fast. that she was too fast. Mr Jones'Mr Jones' opinionopinion that the that the ClaimantClaimant would move on to anothewould move on to another task before properr task before properly ly cocompleting the previousmpleting the previous one waone wass, in our judgment, in our judgment,, an oan opinion which, as pinion which, as her lineher line managermanager withwith experience experience in payroll (both specin payroll (both specifically with theifically with the Respondent and more generally in his Respondent and more generally in his careercareer)), h, he was quite entitled to e was quite entitled to hold. To the extent that it was a criticism of the hold. To the extent that it was a criticism of the ClaimantClaimant, it was a , it was a criticism which was open to Mr. Jones, given his role as the criticism which was open to Mr. Jones, given his role as the CClaimantlaimant’’s s line manager in an area in which she had nline manager in an area in which she had never previously work. ever previously work.[51]ImportantlyImportantly, there was , there was no evidence no evidence or any or any findingsfindings of fact from which we of fact from which we could infercould infer ththat such criticism was rat such criticism was racially motivatedacially motivated oor thatr that any failure by any failure by Mr. Jones Mr. Jones to fully tto fully train the rain the ClaimantClaimant was was in any way in any way racially moracially motivated. tivated. Direct Direct Requests to the ClaimantRequests to the Claimant[52]The next allegation of direct discrimination related to a general point The next allegation of direct discrimination related to a general point about Mr Jones'about Mr Jones' reaction if staff or customers asked the reaction if staff or customers asked the ClaimantClaimant directldirectlyy to do anythingto do anything, with, with a specific exampla specific example e relatingrelating to a P60 requestto a P60 request fromfrom accounts maaccounts manager nager Rhys GriffithsRhys Griffiths (at [43] of the Bundle and Paragraph(at [43] of the Bundle and Paragraphss 2.2.22.2.2 & 2.2.5& 2.2.5 of the List of Issues).of the List of Issues).[53]OOn n 1010 May 2019, Mr Griffiths sent an eMay 2019, Mr Griffiths sent an e--mail to the mail to the ClaimantClaimant (at [8(at [844] of ] of ththe Bundle). e Bundle). It asked the It asked the ClaimantClaimant to print off a copy of a P60 for ato print off a copy of a P60 for a clientclient.. The The ClaiClaimantmant's evidence was that she 's evidence was that she needed Mr. Jones to do it for her needed Mr. Jones to do it for her because she didn't know howbecause she didn't know how but but that hethat he didn't have the timedidn't have the time and he and he became angrybecame angry. Mr. Jones denie. Mr. Jones deniedd getting anggetting angry with the ry with the ClaimantClaimant. Rather,. Rather, his evidehis evidencence was thatwas that,, as as the Claimantthe Claimant was new, he siwas new, he simply requested mply requested that all requests for work came through him and were not sent directly to that all requests for work came through him and were not sent directly to her. her.[54]In our judgment, tIn our judgment, there was nothing unreasohere was nothing unreasonable in that. It was plausible nable in that. It was plausible that that Mr Mr Jones would want to monitor the Jones would want to monitor the ClaimantClaimant’’ss work. Contrary to the work. Contrary to the ClaimClaimantant’’ss evevidence idence ((atat PParagraph 105 of her aragraph 105 of her witnesswitness statementstatement)), the e, the e--mail from Mr Griffiths dmail from Mr Griffiths didid not ask her to create the P60. It asked her to not ask her to create the P60. It asked her to print off a copyprint off a copy. There was, in our judgement, nothing unreasonable in . There was, in our judgement, nothing unreasonable in Mr Mr Jones'Jones' attitude or attitude or Mr Griffiths'Mr Griffiths' requestrequest. There wa. There was nos no less favourable less favourable treatmenttreatment, still les, still lesss anyany facts upon facts upon whichwhich we could infer thwe could infer that the at the ClaimantClaimant’’s s treatmenttreatment was was because of her racebecause of her race. . Case No: 1601749/2020 - 11 - 18 June 20 18 June 201919[55]The next allegatiThe next allegationonss related to related to the events of the events of 1818 June 2019June 2019 (at [42] (at [42] –– [[44] 44] of the Bundle and Paragof the Bundle and Paragraphs 2raphs 2.2.2 .2.2 & 2.2.5 of the List of Issues)& 2.2.5 of the List of Issues). .[56]They began with an allegation that the They began with an allegation that the ClaimantClaimant had run out of had run out of herher office office crying and had gone to Liz Daley's officecrying and had gone to Liz Daley's office. She claimed . She claimed to feel intimidated to feel intimidated and scared by Mr. Jones inand scared by Mr. Jones in the course of a confrontation which had the course of a confrontation which had ttaken place in the office that the aken place in the office that the ClaimantClaimant shared with Mr. Jones and Mr shared with Mr. Jones and Mr Morris. Morris. There was There was specificallyspecifically aa reference reference to to how accountshow accounts’’ paperpaperwork work was twas to be marked when o be marked when tasks had been tasks had been completedcompleted. This was the i. This was the issue ssue about whether to use a penabout whether to use a pen oor a highlighr a highlighterter. .[57]TheThe ClaimantClaimant was using a highlighter when was using a highlighter when Mr JonesMr Jones had given a clear, had given a clear, credible and reasonable explanation for why hecredible and reasonable explanation for why he wanted her to use a pen wanted her to use a pen to strike through tasksto strike through tasks. . The The ClaimantClaimant did not agree with Mr Jones'did not agree with Mr Jones' direcdirection and tion and refused to follow his instruction.refused to follow his instruction. Indeed, that disagreemIndeed, that disagreement ent came through came through inin the Claimthe Claimantant's own cross examination of Mr. Jones, 's own cross examination of Mr. Jones, where she tookwhere she took time totime to ask him ask him whether or not he agreed that her use of whether or not he agreed that her use of a marker pena marker pen/highlighter/highlighter did not cause confusion. did not cause confusion.[58]IInn her her evidence evidence to the Tribunto the Tribunal, al, the Cthe Claimlaimantant claimed claimed thatthat she used a she used a highlighterhighlighter (as (as opposedopposed to a pen)to a pen) to to protect herself from further criticism protect herself from further criticism by Mr. Jonby Mr. Jones. es. There was, in our judgement, some force in Mr Wheaton's There was, in our judgement, some force in Mr Wheaton's submission thatsubmission that,, in this regardin this regard,, the the ClaimantClaimant wwas as somewhat trying to somewhat trying to backtrackbacktrack from from thethe positionposition previously previously statedstated, wherein, wherein she she believebelievedd that that Mr Jones was wrong aMr Jones was wrong annd her sd her system (of using ystem (of using a marker pen) was a marker pen) was preferablepreferable The The ClaimantClaimant now appeared to be suggestingnow appeared to be suggesting that that she ushe used a sed a marker pen to ensure Mmarker pen to ensure Mr Jones knew what work she had done.r Jones knew what work she had done.[59]In tIn the he TribunalTribunal’’s views view, the Claimant, the Claimant’’s argumentss arguments missed the pointmissed the point, w, which hich waswas that she was given a reasonable instruction by her line manager that she was given a reasonable instruction by her line manager and consistently refusedand consistently refused tto follow it. That was o follow it. That was thethe plausible and plausible and persuasive explanapersuasive explanation for why Mr. Jones, by his tion for why Mr. Jones, by his own admission, own admission, became frustrated with thebecame frustrated with the ClaimantClaimant. . ItIt was supported bywas supported by the evidence the evidence of the meetingof the meeting on 18 June 20on 18 June 201919, , in which in which Mr. Jones accepted that he Mr. Jones accepted that he lost hislost his temper temper andand walkedwalked outout (and c(and considered further, below)onsidered further, below). T. That was hat was reasonablyreasonably eexplainedxplained,, in our jin our judgeudgementment,, by the by the ClaimantClaimant’’ss continued continued refusal to refusal to follow a simple instruction on how to do her job. follow a simple instruction on how to do her job.[60]There was There was nono evidence evidence from which the Tribunal couldfrom which the Tribunal could infer infer that that MrMr Jones'Jones' instructions instructions about how to mark tasks as compleabout how to mark tasks as completed ted wwere related ere related to the to the ClaimantClaimant’’s s rrace. ace. MrMr Jones and Jones and the the ClaimantClaimant clashed over how Mr. clashed over how Mr. Jones wanted the job doing. But that clash, those disagreements and Jones wanted the job doing. But that clash, those disagreements and Mr Mr Jones'Jones' behaviour and conductbehaviour and conduct thereafterthereafter was because of the was because of the ClaimantClaimant’s’s attitude attitude and approach and approach to her workto her work, not her race., not her race.[61]OOnn 1818 June 2June 2019,019, as alluas alluded to, ded to, a meeting a meeting subsequently subsequently took place took place between Liz Daly, David Williams, between Liz Daly, David Williams, Mr. Jones and the Mr. Jones and the ClaimantClaimant (at [45] (at [45] –– [[46] of the46] of the Bundle and Paragraphs 2.2.4 & 2.2.5 of the List of Issues).Bundle and Paragraphs 2.2.4 & 2.2.5 of the List of Issues). In In Case No: 1601749/2020 - 12 - the Scott the Scott SSchedule, the chedule, the ClaimantClaimant setset out a number of alout a number of allegations legations regarding Mr Jones'regarding Mr Jones' conduct. Mr. Jones, as conduct. Mr. Jones, as aalready lready mentionementionedd,, accepted that he got angry in that meeting and walked out. Maccepted that he got angry in that meeting and walked out. Mss DalDaly's y's evidence was that both the evidence was that both the ClaimantClaimant and Mr. Jones were raising their and Mr. Jones were raising their voices and that she asked both voices and that she asked both of them toof them to stostop doing so and p doing so and to be quiet. to be quiet.[62]The The TribunalTribunal could find no reason not to accept Mcould find no reason not to accept Mss DalDaly's recollection. y's recollection. ItIt was reflective of the atmosphere and disagreements between Mr. Jones was reflective of the atmosphere and disagreements between Mr. Jones and the and the CClaimlaimantant. The . The TribunalTribunal ddidid not doubt that the not doubt that the ClaimanClaimantt found the found the meeting dmeeting difficult and upsetting. Mr. Jones himself alsifficult and upsetting. Mr. Jones himself also found the meeting o found the meeting difficult and upsetdifficult and upsettingting. However, in our judgement, th. However, in our judgement, thereere was clearly a was clearly a clash of personalities and clash of personalities and a a disagreement about how disagreement about how the Claimant the Claimant should be undertaking the tasks which mshould be undertaking the tasks which made up her job ade up her job in pin payrollayroll. . However, However, we were unable to infer, still less we were unable to infer, still less conclude, that any conclude, that any of of thatthat had had anythinganything to do with the to do with the ClaimaClaimantnt’’s race. s race.[63]The Claimant made two further The Claimant made two further specificspecific allegations, one of which we allegations, one of which we have, have, in effect, in effect, dealtdealt withwith, namely, namely the manner in which sthe manner in which she marked her he marked her workwork. In addition, . In addition, she attributed she attributed commentscomments toto Mr. Jones Mr. Jones to her to her along the along the lines of lines of ““Mrs PMrs Perfect. erfect. hhow can you miss thatow can you miss that??”” in respect of in respect of an alleged an alleged error error in in her workher work.. Mr Jones denied ever saying such a thing to the Mr Jones denied ever saying such a thing to the Claimant.Claimant.[64]As we explained aboAs we explained above, it wasve, it was open toopen to Mr. Jones Mr. Jones to raiseto raise the issues with the issues with the waythe way that that the Claimantthe Claimant’’ss work had been completedwork had been completed. T. That hat waswas reasonable and consistent with his legitimate concerns over the reasonable and consistent with his legitimate concerns over the ClaimantClaimants inability to follow simple instruction.s inability to follow simple instruction.[65]As for the alleged As for the alleged ““MMrsrs PPerfecterfect”” comment, tcomment, this his waswas ananother incidenceother incidence ooff the word of the the word of the ClaimantClaimant against the word of Mr. Jones. Tagainst the word of Mr. Jones. There was no here was no other evidence regarding thother evidence regarding thee allegation. allegation.[66]TThe he TribunalTribunal had regardhad regard once moreonce more to the factors which we to the factors which we alluded toalluded to in in our General Observations,our General Observations, aboveabove. In particular, the. In particular, there was a failure by the re was a failure by the ClaiClaimantmant to complain in any wayto complain in any way whatsoever about this alleged whatsoever about this alleged commentcomment. She had complained about Mr. Jones on both . She had complained about Mr. Jones on both 1414 JuneJune 2019 2019 ((when she had a meeting with when she had a meeting with the the partners partners in thein the absence of Mr. Jonesabsence of Mr. Jones) ) aand on nd on 1818 JuneJune 2019 (2019 (when she had when she had thethe meeting meeting in the in the presence of Mr. presence of Mr. JonesJones)). She had . She had spoken tospoken to Citizens AdviceCitizens Advice in the summer of 2019in the summer of 2019 but but not not about her employment. about her employment.[67]ThThee failure failure to raise any complto raise any complaint or ever refer to aint or ever refer to the alleged remarkthe alleged remark at at the time that the time that she purporshe purported it wasted it was mademade indicatedindicated, in our view, , in our view, that the that the comment was either not made or comment was either not made or the the Claimant Claimant did not consider did not consider it to be it to be objectionable. objectionable. IIt t wawas noteworthy that on the s noteworthy that on the ClaimantClaimant’’s case s case thisthis allegationallegation took place took place less than 12 days after the meeting where she hadless than 12 days after the meeting where she had raised complaints about Mr. Jones, and yet she raised no complaints raised complaints about Mr. Jones, and yet she raised no complaints about these alleged about these alleged remarksremarks. It w. It was not consistentas not consistent or plausible that, had or plausible that, had the remark been made, the Claimant would have failed to raise itthe remark been made, the Claimant would have failed to raise it with with or or reportreport it to it to others.others. Case No: 1601749/2020 - 13 -[68]On balance, given On balance, given that the Claimant had that the Claimant had raisedraised complaintscomplaints about Mr about Mr JonesJones’’ behaviour tbehaviour towardsowards herher at that thee timetime, her failure to make any , her failure to make any mention of mention of thethe ““MMrsrs PPererfectfect”” commentcomment led us to led us to coconcludenclude MMrr Jones Jones did did not refernot refer to the to the ClaimantClaimant in that wayin that way.. It follows that there was, in thIt follows that there was, in that at regard, no less favourable treregard, no less favourable treatment.atment. Taking Anne Taking Anne’’s Jobs Job[69]The next allegation The next allegation concernedconcerned Yannick PYannick Piechotaiechota ((at [46] oat [46] of the Bundle f the Bundle and Paragraphs 2.2.2 & 2.2.5 of the List of Issues).and Paragraphs 2.2.2 & 2.2.5 of the List of Issues).[70]TThis his related trelated to when the o when the ClaimantClaimant was performing tasks in was performing tasks in RReceptioneception. . AnAnnene Hawley wasHawley was another of another of the Respondentthe Respondent’’ss receptionistsreceptionists.. The The ClaimantClaimant alleged that Mr alleged that Mr PiechotaPiechota, upon seeing the , upon seeing the ClaimantClaimant undertaking undertaking recreceeptionistptionist tasktaskss saidsaid ““Is it Anna's job you want to take Is it Anna's job you want to take now?now?””[71]Mr Mr PiechotaPiechota's evidence was that's evidence was that,, atat most, he would have smost, he would have saidaid ““Are you Are you AAnne todaynne today??””,, in a referencin a reference te to Mo Mss HawleyHawley ((who who was awas a longtime longtime employeeemployee).).[72]The other person The other person referred toreferred to in the in the narrative of the narrative of the allegationallegation that that appears appears in thein the ScoScott tt ScheduleSchedule (R. Claybrook) (R. Claybrook) had, we were told, left the had, we were told, left the RespondentRespondent’’ss employment andemployment and was not called by either was not called by either partyparty to give to give evidenceevidence..[73]Again, this Again, this wawas one word against another. There s one word against another. There wawas no other s no other corroborative evidence about what was said. corroborative evidence about what was said. WWee werewere mindful again of mindful again of tthe he GGeneral eneral OObservationsbservations made made earlierearlier in these Reasonsin these Reasons. . The ClaimantThe Claimant did nodid not raise any concerns or complaints t raise any concerns or complaints at the time at the time with the with the RespondeRespondentnt about this aabout this allelleged comment. ged comment. The The ClaimantClaimant did not go back to did not go back to CitizensCitizens’’ Advice Advice at this time to get aat this time to get advice on her employment ridvice on her employment rights.ghts.[74]ThereThere was alsowas also no no other other evidence that anyone was concernedevidence that anyone was concerned that the that the ClaimantClaimant waswas ““taking their jobstaking their jobs””. It. It diddid not not make sense anyway, because make sense anyway, because all of the other employees already had jobs. The all of the other employees already had jobs. The ClaimantClaimant did not did not complain about the comment at the time, nor did she complain about the comment at the time, nor did she report that it was in report that it was in any way racist. At its highest, itany way racist. At its highest, it appearappeareded that the that the ClaimantClaimant misremembered what was said. misremembered what was said.[75]For those reasons, wFor those reasons, we preferrede preferred Mr Mr PiehotaPiehota’’s recollections recollection..[76]In the alternative, even if Mr In the alternative, even if Mr PiechotaPiechota had saidhad said ““IIs it Anna's job you want s it Anna's job you want to take now?to take now?, , we were unable towe were unable to inferinfer,, having regard to all thaving regard to all the factshe facts,, that that such a comment was motivated by or hsuch a comment was motivated by or had anything to do with the ad anything to do with the ClaimantClaimant’’s races race.. Request to Go to the Bank Request to Go to the Bank[77]NextNext, the , the ClaimantClaimant complaincomplaineded that Sthat Seraera Griffiths, who wasGriffiths, who was one of her one of her line managers when she worked in line managers when she worked in the the accountsaccounts departmentdepartment, asked, asked the the Case No: 1601749/2020 - 14 - Claimant Claimant to go to the bank rather thanto go to the bank rather than ddoing it herselfoing it herself (at [46] (at [46] –– [[47] of 47] of the Bundle and Paragrathe Bundle and Paragraph 2.2.5 of theph 2.2.5 of the List of Issues)List of Issues). . It was not in It was not in ddispute thatispute that MMss Griffiths did ask the Griffiths did ask the ClaimantClaimant to gto go to the bank.o to the bank.[78]However,However, iin our judgment,n our judgment, it was a reasoit was a reasonable instruction by a trainnable instruction by a traineeee accountantaccountant (as Ms Griffiths was at the time)(as Ms Griffiths was at the time) to her assistantto her assistant (n(namely, the amely, the Claimant)Claimant) The The TribunalTribunal was was unable to underunable to understand how stand how the requestthe request was was unfavourable treatmentunfavourable treatment. In reality, i. In reality, itt was not.was not.[79]In In additionaddition,, it was it was simply simply not ponot possiblssible from e from thosethose facts to infer that facts to infer that Ms Ms Griffiths asked the Claimant to go to the baGriffiths asked the Claimant to go to the bank because of her race. nk because of her race. Ms Ms GriffGriffithsiths was a trainee accountant, employed by a company was a trainee accountant, employed by a company engagedengaged in in payroll payroll servicesservices.. It was wholly plausible thaIt was wholly plausible that t visitsvisits would be would be requiredrequired to to the bank in the course the bank in the course of the of the Respondent’sRespondent’s business. That was what business. That was what was asked of the Claimant was asked of the Claimant by her line managerby her line manager. It was . It was a a reasonable and reasonable and wholly understandable wholly understandable request. request. It wasIt was not less not less favourablefavourable treatmenttreatment and and was not was not in any way associated with the Claimain any way associated with the Claimantnt’’s ras racece Cleaning the Wind Cleaning the Windowow[80]The The ClaimantClaimant also alleged that Malso alleged that Ms s Griffiths asked her to cleanGriffiths asked her to clean a a dirty dirty windowwindow (at [47] of the Bundle and Paragraph 2.2.5 of the List of Issues)(at [47] of the Bundle and Paragraph 2.2.5 of the List of Issues). . This was an allegation This was an allegation thatthat caused the caused the ClaimantClaimant to to become upset when become upset when recalling recalling it in her oral it in her oral evidenceevidence..[81]TheThe allegation allegation was was denieddenied by Ms Griffiths.by Ms Griffiths. Her recollection was ofHer recollection was of the the ClaimantClaimant choosingchoosing to clean the window of her oto clean the window of her own volitionwn volition, rather than , rather than being asked to do so.being asked to do so...[82]In deciding which recollection to prefer, the Tribunal was miIn deciding which recollection to prefer, the Tribunal was mindndfful ul ofof the the following:following: 82.1. TheThe ClaimantClaimant had felt ahad felt able to raise ble to raise complaints complaints at the time at the time about her about her treatment by Mrtreatment by Mr. Jone. Joness.. 82.2. TThere was evidence of here was evidence of the Claimantthe Claimant nonot following instructions from t following instructions from her her line managers to undertake simple line managers to undertake simple tasks.tasks. 82.3. In contrast, the In contrast, the ClaimantClaimant claimed that she was claimed that she was toldtold to do a to do a demeanindemeaning taskg task by Ms Griffiths, wby Ms Griffiths, which hich still still caused caused a level of upset a level of upset when when she was asked to recall it she was asked to recall it three years later. three years later. Yet, the Yet, the ClaimantClaimant did not suggest thatdid not suggest that she she refused Ms Grefused Ms Grriffithiffithss’’ instructioninstruction,, despite despite the fact that thethe fact that the ClaimaClaimant had nt had refusedrefused to undertake other tasks to undertake other tasks asked of asked of herher. Nor did the . Nor did the ClaimantClaimant suggest that she suggest that she complainedcomplained at at the time about the time about Ms GriffithsMs Griffiths’’ requiring her to clean a windowrequiring her to clean a window, despite , despite having having felt able to raise felt able to raise complaintscomplaints against Magainst Mr Jones.r Jones.[83]In our judgement,In our judgement, the Claimantthe Claimant’’s recollection of being told to clean a s recollection of being told to clean a windowwindow was was neitherneither plausible plausible nnor credibleor credible. . WWhen hen consideredconsidered in the in the contextcontext of the of the evidenceevidence as a whole, as a whole, it was not plausible or credible it was not plausible or credible tthat hat the the ClaimantClaimant would have would have agreed to agreed to performperform the task orthe task or,, if sheif she hadhad, , tthat hat Case No: 1601749/2020 - 15 - she w she would ould not not have have complained about itcomplained about it thereafter thereafter to somebody else to somebody else within the within the RespondRespondentent organisation. organisation.[84]We therefore preferWe therefore preferredred MMs Williams's Williams' recollection. recollection. ItIt followfolloweded that the that the alleallegation that gation that the Claithe Claimantmant was was told ttold to clean a window waso clean a window was not made not made out. out. As there was no As there was no treatmenttreatment,, less less favourablefavourable or or otherwiseotherwise, , there there could could be no inference of discrimination.be no inference of discrimination. Dismissal and Dismissal and Refusal to FurlouRefusal to Furloughgh[85]AlthouAlthoughgh not in the Scott Schedule, not in the Scott Schedule, the Claimant the Claimant allegedalleged that the that the decision to dismiss her without warningdecision to dismiss her without warning, cons, consultaultation or tion or followfollowing ing the the disciplinarydisciplinary policypolicy was an act of direct race was an act of direct race discriminationdiscrimination (at (at PParagraph aragraph 2.2.72.2.7 of the List of Issues).of the List of Issues).[86]On 8 November 201On 8 November 2019, the Claimant9, the Claimant’’s probationary period was extended s probationary period was extended to 31 March 2020 (to 31 March 2020 (at [140at [140] of the Bundle] of the Bundle and and as as referredreferred toto, above)., above). In In February February andand March 2020, the March 2020, the CovidCovid pandemic was pandemic was starting to impact starting to impact the UK (with the UK (with the firstthe first national national lockdownlockdown announced announced onon 2233 MMarch 2020). arch 2020).[87]On 4 March 2020, Lis Daly reported the outcome of a partnersOn 4 March 2020, Lis Daly reported the outcome of a partners’’ meeting meeting as follows (at [153] of the Bunas follows (at [153] of the Bundle):dle): The co The consensus at thensensus at the meeting was that meeting was that [the Claimant][the Claimant] is unfortunately is unfortunately unsuitable. unsuitable. This This is based on feedbackis based on feedback from Serafrom Sera [Griffiths][Griffiths] regardingregarding thethe accounting side ofaccounting side of things, things, and from Sianand from Sian [Williams][Williams] regarding reception (both regarding reception (both ofof whwhich have made observatich have made observations ions thatthat echo certain commentsecho certain comments thatthat SionSion [Jones][Jones] made initially).made initially). The The suggestion wassuggestion was thatthat we inform Isabel on Friday afternoon, we inform Isabel on Friday afternoon, but but shshe is e is still allowed still allowed to to stay until stay until 3131st st March March being being thethe end ofend of the probationary period the probationary period (assuming that(assuming that she wants to)she wants to)……[88]TherThere was ae was a consiconsistency between the reasons stency between the reasons given for not retaining the given for not retaining the Claimant and Claimant and the concerns raised by various managers about the concerns raised by various managers about her work. her work. In her In her writtenwritten evidenceevidence, Ms Daly explained that, as a , Ms Daly explained that, as a resultresult of the of the pandemicpandemic escalating, escalating, the Respthe Respondent was unable to mondent was unable to meeet with the et with the Claimant as proClaimant as proposed posed (Ms (Ms DDaly referring to being aly referring to being ““overtaken by eventsovertaken by events”” at Paragraph 27 of her at Paragraph 27 of her witnesswitness statement).statement). Indeed, on 23 March 2020,Indeed, on 23 March 2020, the Respondent informed all the Respondent informed all itsits staff to stay at home, in line with the staff to stay at home, in line with the national lockdown announced thanational lockdown announced that evening (at t evening (at [168] of the Bundle).[168] of the Bundle).[89]AfterAfter taking HR taking HR adviceadvice (at [171] (at [171] –– [[172] of the Bundle), Ms 172] of the Bundle), Ms DDaly wrote to aly wrote to the the ClaimantClaimant on 2on 26 March 2020, informing her that her employment 6 March 2020, informing her that her employment would end when her probationary period ended on 31 March 20would end when her probationary period ended on 31 March 2020 (at 20 (at [173] of the B[173] of the Buundle).ndle). The reason The reason givengiven for the termination of the for the termination of the ClaimantClaimant’’s employment s employment was as follows:was as follows: Due to the exceptional Due to the exceptional situationsituation that that wewe currently currently find ourselves find ourselves inin as a as a business, business, as as caused by caused by thethe Coronavirus Coronavirus outbreak, outbreak, wewe are unfortunately are unfortunately unable unable to offer to offer you you aa permanent pospermanent positionition withwith the the business. business. Your Your employment employment with with [the Respondent] [the Respondent] will therefore will therefore end on 31 March end on 31 March 2020. 2020. Case No: 1601749/2020 - 16 -[90]As explained by Ms As explained by Ms DDaly in her written aly in her written evidenceevidence ((at Paragraph 29 of her at Paragraph 29 of her witnesswitness statement)statement),, the decision was taken not the decision was taken not to refer to the to refer to the RespoResponndent’sdent’s concernsconcerns about the Claimantabout the Claimant’’s s performanceperformance ““out of out of concern for [the Claimantconcern for [the Claimant’’s] feelingss] feelings..”” In hindsight, Ms In hindsight, Ms Daly accepted Daly accepted that that ““it it would would have been have been better better had had I I telephoned telephoned Isabel Isabel to to explain explain that that she was she was going going to to receive the receive the letter letter and and discuss discuss it withit with herher”” and and exprexpressed regessed regret at not handling the matter better.ret at not handling the matter better.[91]HHaving aving regard to the totality of the evregard to the totality of the evidence, there was nothing from idence, there was nothing from which which the Tribunal could infer that the real reason for the decision not to the Tribunal could infer that the real reason for the decision not to extend the Claimantextend the Claimant’’s empls employment was her race. oyment was her race. TThe reasohe reasonnss given given were consistent both with the history of the Claimantwere consistent both with the history of the Claimant’’s employment and s employment and the the unprecedentedunprecedented circumstancescircumstances which arose from which arose from MMarch 2020.arch 2020. In our In our judgment, the reasons disclosed for the decision to terminate the judgment, the reasons disclosed for the decision to terminate the ClaimantClaimant’’s employment were the acs employment were the actual and genuintual and genuine reasonse reasons.. TheThe ClaimantClaimant’’s dismissal was s dismissal was nnot in any way related to her race.ot in any way related to her race.[92]Next, the Next, the ClaimantClaimant allegeallegedd that the refusal by the that the refusal by the RespondentRespondent to to furlough her was due to her racefurlough her was due to her race and an act of direct and an act of direct discriminationdiscrimination (at (at [48] [48] –– [[49] of the Bundle 49] of the Bundle and Paragraand Paragraph 2.ph 2.2.6 of the List of Issues)2.6 of the List of Issues).. ItIt waswas not in dispute that not in dispute that on 20 April 2020, on 20 April 2020, the the Claimant asked the Claimant asked the RespondentRespondent to furlough herto furlough her (at [185] of the Bundle)(at [185] of the Bundle) andand that that on 22 April on 22 April 2020, 2020, the the RespondentRespondent informed the Claimant that it would not be placinginformed the Claimant that it would not be placing her on her on furloughfurlough (at [187] of the Bundle).(at [187] of the Bundle).[93]There was There was also also documentary evidence that when documentary evidence that when the Claimantthe Claimant’’s request s request was madewas made, the , the RespondentRespondent took external HR advicetook external HR advice (on 2(on 20 and 21 April 0 and 21 April 2020, at [175] 2020, at [175] –– [[184] of the Bundle)184] of the Bundle). This . This all took pall took place wlace within a few ithin a few wweeks of the furlough scheme being introduced. eeks of the furlough scheme being introduced.[94]By thBy that time, the at time, the RespondentRespondent had already dechad already decideided d to endto end the the ClaimantClaimant’’s s employmentemployment and commuand communicated the same to her (by nicated the same to her (by the the letter letter of of 26 26 March 2020, March 2020, at [173] of the Bundle).at [173] of the Bundle).[95]TheThe RespondentRespondent was advised was advised thatthat toto ffurloughurlough the Claimant the Claimant afterafter her her employment had been terminatedemployment had been terminated would be at odds with would be at odds with that decisionthat decision and and couldcould arguably have been arguably have been anan inappropriate use of the furloughinappropriate use of the furlough schemescheme. That was why the . That was why the RespondentRespondent did not furlough the did not furlough the ClaimantClaimant. . She was, by that time, She was, by that time, no longer employed by the Respondent.no longer employed by the Respondent.[96]On that basis, whilst the Claimant disagreed with the On that basis, whilst the Claimant disagreed with the RRespondentespondent’s’s decision, there was nothing indecision, there was nothing in the the evidenceevidence from which we could infer from which we could infer that the decision not tothat the decision not to furlough the furlough the ClaimantClaimant was because of her race. was because of her race. IIn simpn simplele terms, she was not eligible for the furlough scterms, she was not eligible for the furlough scheme because heme because her employment had ended.her employment had ended. Case No: 1601749/2020 - 17 - The Allegation of The Allegation of Direct Direct Discrimination Discrimination && HHarassmentarassment P Postost--DismissalDismissal ContactContact[97]The nThe nextext allegation concerned allegation concerned a a purportedpurported telephone telephone conconversationversation betweenbetween Emlyn GrifEmlyn Griffithsfiths and the Claimantand the Claimant’’s partners partner (at [47] (at [47] –– [[48] of the 48] of the BundleBundle). It was ). It was allegedalleged that this that this occurred onoccurred on 29 March 2020, following 29 March 2020, following the Claimantthe Claimant’’s dismissal. s dismissal. It wasIt was allegealleged that d that the Claimantthe Claimant’’ss partner partner contacted contacted MrMr Griffiths, Griffiths, who was a friend of hiswho was a friend of his,, and and in the in the course course of of the the conversation, Mr Griffithsconversation, Mr Griffiths ssuggested that the uggested that the ClaimantClaimant’’s treatment s treatment by the by the Respondent Respondent may have may have had had something to do with the colour of her skin. something to do with the colour of her skin.[98]This was the onThis was the one allegation which the Claimae allegation which the Claimant submitted was an act of nt submitted was an act of both direct race discriminboth direct race discrimination and ation and harassmentharassment by reason of race.by reason of race.[99]There was no evThere was no evidence before us from the Claimantidence before us from the Claimant’’s partner. s partner. TheThere re was anwas an application by the application by the ClaimantClaimant to depose him very late in the to depose him very late in the proceedings, naproceedings, namelmely at the start of day four of thy at the start of day four of thee five day hearingfive day hearing. The . The TribunalTribunal refused that applicationrefused that application upon upon concludingconcluding thatthat the the balance of balance of prejudiceprejudice fell in favour of the Respondentfell in favour of the Respondent, given the lateness of , given the lateness of the the application and tapplication and the fact that the he fact that the ClaimantClaimant could raise the issues directly could raise the issues directly with Mr Griffwith Mr Griffithsiths (from whom we did hear (from whom we did hear evidenceevidence)) and the Claimant and the Claimant herselfherself had given had given evievidencedence on what her partner had told her Mr Griffiths on what her partner had told her Mr Griffiths had saidhad said (as such, the (as such, the comments comments attributedattributed to Mr Griffiths were before to Mr Griffiths were before us ius in evidence).n evidence).[100]Mr Mr GriffGriffithiths said that he could not recall the telephone s said that he could not recall the telephone call specificallycall specifically but but he was clear in his evidence that he would have made no reference he was clear in his evidence that he would have made no reference whatsoeverwhatsoever tto the o the ClaimantClaimant’’s race or to her skin. There was s race or to her skin. There was no no other other evidence before the evidence before the TribunalTribunal ddirectly irectly on this pointon this point (as the Claimant(as the Claimant’’s s evidenceevidence was secowas second hand, in that she wasnd hand, in that she was reporeportingrting what her partner what her partner had tohad tolld her Mr Griffithd her Mr Griffithss had said, rather than hearing it directly had said, rather than hearing it directly herselfherself))..[101]For those reasons, the TribunalFor those reasons, the Tribunal were unable to findwere unable to find on the on the evidenceevidence before usbefore us thatthat, on , on balabalance,nce, Mr Griffiths had suggested to the ClaimantMr Griffiths had suggested to the Claimant’’s s partner that partner that her treatment by the her treatment by the RespondentRespondent had been because of her had been because of her race.race. As As we were unable to find that thwe were unable to find that thisis allegations wallegations wasas made outmade out, there , there was no less was no less favourablefavourable treatmenttreatment or or unwantedunwanted conductconduct from which were from which were could infer discrimination or harassment.could infer discrimination or harassment. T The he AllegationAllegations of Harassments of Harassment Use of Welsh Use of Welsh[102]TheThe ClaiClaimantmant allegedalleged that that SionSion Jones and Jones and DyDylanlan Morris caused tension Morris caused tension in the office that she shared with themin the office that she shared with them bby thy the waye way that they treated herthat they treated her. . SpecificallySpecifically,, it was alleged that it was alleged that they would complain that she was too they would complain that she was too quiet, quiet, theythey would swap from would swap from speaking in speaking in English to WelshEnglish to Welsh when the when the Claimant entered the Claimant entered the officeoffice and and MrMr Morris wouMorris would stand up from his desk ld stand up from his desk angrily and exit the room for no reasonangrily and exit the room for no reason (at [50] of the Bundle(at [50] of the Bundle). The ). The Case No: 1601749/2020 - 18 - Claimant relied upon these allegations as acts of Claimant relied upon these allegations as acts of harassmentharassment on the on the grounds of racegrounds of race (per Paragraph 3.1.1(per Paragraph 3.1.1 & 3.1.4& 3.1.4 of the List of Issues).of the List of Issues).[103]It was not It was not inin dispute dispute that there was an atmosphere in thethat there was an atmosphere in the officeoffice which the which the Claimant shared with Mr Jones and Mr MorrisClaimant shared with Mr Jones and Mr Morris. As detailed above, we . As detailed above, we found found that that was as a result of a that that was as a result of a clash of personalities between Mr. clash of personalities between Mr. Jones and the Jones and the ClaimantClaimant,, which arose from the which arose from the ClaimantClaimant’’s refusals refusal to to follow instructions given to her by Mr. Jonesfollow instructions given to her by Mr. Jones. . ThatThat refusalrefusal caused caused frustration and antagonised Mr. Jones. He acceptfrustration and antagonised Mr. Jones. He accepteded that he became that he became frustratedfrustrated with the with the CClaimant’slaimant’s repeated failure to carry out repeated failure to carry out ttasks asks in the in the mannermanner asked of herasked of her. .[104]Both Mr. Jones and Mr Morris'Both Mr. Jones and Mr Morris' evidence was evidence was that they woulthat they would speak in d speak in WelshWelsh toto each other,each other, asas it it waswas their first languagetheir first language. However, . However, they would they would revert to English when speaking to the revert to English when speaking to the ClaimantClaimant (who was not a Welsh (who was not a Welsh speaker)speaker). .[105]Mr Morris'Mr Morris' evidence evidence was was that if he did get up and leave that if he did get up and leave quickly, it was quickly, it was becausebecause,, as IT manas IT manager, he was reacting to requests for IT assistance ager, he was reacting to requests for IT assistance from other employeesfrom other employees. Some of those . Some of those requrequests wests were urgent. ere urgent. If that If that causedcaused him to leave the him to leave the officeoffice hurriedlhurriedly, it was not in any y, it was not in any way way becausebecause of of the Claimant. the Claimant.[106]The Tribunal The Tribunal preferredpreferred the the evidenceevidence of Mr Jones and of Mr Jones and Mr Morris. Mr Morris. It was It was clear, plausible and consistentclear, plausible and consistent. . As such, we As such, we were unable to find were unable to find that that these allegations were made outthese allegations were made out or, if they were, or, if they were, we were we were ununable to infer able to infer from them that they related to the from them that they related to the Claimant’sClaimant’s racerace.. For Foreigners & eigners & TouristsTourists[107]The neThe next xt two allegations two allegations in the Scott in the Scott ScheduleSchedule were were considerconsidereded together.together. The Claimant said that both The Claimant said that both occurredoccurred in thein the summer of 2019, summer of 2019, as fas follows (ollows (atat [50] [50] –– [[51] of the Bundle51] of the Bundle and Paragraphs 3.1.2 & 3.1.3and Paragraphs 3.1.2 & 3.1.3 of of the List the List of Issuesof Issues):): 107.1. Upon Upon returningreturning from a from a holidayholiday in Scotland, in Scotland, Mr. Jones Mr. Jones talked about talked about Scotland being full of Scotland being full of ““bloody foreignersbloody foreigners””, , made a made a derogatory derogatory noise andnoise and ssaid he couldn't bear it.aid he couldn't bear it. 107.2. BBoth Mr. Jones and Mr Moth Mr. Jones and Mr Moorris wrris would make ould make reference treference to o ““bloody bloody foreignersforeigners”” and and Mr Morris talkMr Morris talkeded about the about the ““Third World WarThird World War ““in in respect of touristsrespect of tourists visiting the visiting the PwllheliPwllheli areaarea..[108]Both Both Mr. Jones and Mr Morris denMr. Jones and Mr Morris deniedied that they that they referred to referred to ““bloody bloody foreignersforeigners”” but but acceptaccepteded independently independently of each other of each other that they may have that they may have said said ““bloody touristsbloody tourists”” in respect oin respect of the local area. Pwllhelif the local area. Pwllheli is a seaside is a seaside resort whicresort which would have seen h would have seen an influx an influx tourists and visitors in the tourists and visitors in the summer monthssummer months (including in the summer of 2019). (including in the summer of 2019). ThoThose pese people visiting ople visiting PwllheliPwllheli would be considered as tourists.would be considered as tourists. Indeed, the Indeed, the TribunalTribunal ttook ook the the view that it view that it waswas a common refrain from those who livea common refrain from those who livedd and workand workeded in in Case No: 1601749/2020 - 19 - seaside towns during the high season seaside towns during the high season, as to t, as to the he inconveniences caused inconveniences caused by by an influx of an influx of large numbers olarge numbers of tourists. f tourists.[109]In our judgment, In our judgment, iit wast was more consistent and plausible that more consistent and plausible that MrMr Jones and Jones and Mr MoMr Morris would rris would have have referreferredred to to ““touriststourists””, , as opposed toas opposed to ““foreignersforeigners””,, in in PwllheliPwllheli. Mr Jones'. Mr Jones' evidence was that he did comment on the number of evidence was that he did comment on the number of foreforeign vign visitors on a trisitors on a trip to Edip to Edinburgh. inburgh. At mostAt most, , it appeared that theit appeared that the ClaimantClaimant has mistakenly conflated these two incidentshas mistakenly conflated these two incidents wwhich hich led her to led her to erroneously recall Mr. Jones and Mr Morris referring to erroneously recall Mr. Jones and Mr Morris referring to ““bloody bloody foreignersforeigners””. .[110]TheThe ClaimantClaimant tried to suggest thattried to suggest that, in any event,, in any event, she wouldshe would be be considered a tourist in considered a tourist in PwllheliPwllheli. That argument, in our view, . That argument, in our view, wawass not not sustainable. Thesustainable. The ClaimanClaimantt worked in worked in PwPwllheli. Ollheli. On no reasonable basis n no reasonable basis could she have thoughtcould she have thought tthat hat a referenca reference to e to ““bloody bloody touriststourists”” included herincluded her. . There was There was nono ununwanted conduct and therwanted conduct and there was e was nono conduct that was conduct that was related to the related to the ClaimantClaimant’’s racs race. e.[111]Similarly, Mr Morris denied making any reference to the Similarly, Mr Morris denied making any reference to the ““Third World Third World WarWar..”” This was, in effect, MThis was, in effect, Mrr MorrisMorris’’ word against the word against the Claimant’sClaimant’s. . Even Even if if Mr Morris didMr Morris did likened likened Pwllheli Pwllheli during the summer sduring the summer season eason to theto the ““Third Third World WarWorld War””, it was , it was unclearunclear how that was either unwanted conduct in how that was either unwanted conduct in resprespect to the ect to the ClaimantClaimant ((who herself was not a touristwho herself was not a tourist in Pwllheli) in Pwllheli) or how or how it it relatedrelated to the to the ClaimantClaimant’’s race. s race.[112]For those reasons, we were unable to find that there was For those reasons, we were unable to find that there was any unwanted any unwanted conduct and, if there was, the evidence didconduct and, if there was, the evidence did not not permit the permit the inferenceinference that that such such conductconduct was because of the Claimantwas because of the Claimant’’s race.s race. The Claimant The Claimant’’s Jos Job and the Welsh Girlb and the Welsh Girl[113]TheThe ClaimantClaimant alleged that alleged that MrMr Jones, Mr Morris and a few other Jones, Mr Morris and a few other unnamed unnamed employeesemployees of the of the RespondentRespondent would say that her job should have been would say that her job should have been given to a Welsh given to a Welsh white white girlgirl and and not not someone like the someone like the ClaimantClaimant ((at [52] of at [52] of the Bundlethe Bundle and Paragraph 3.1.5 of the List of Issuesand Paragraph 3.1.5 of the List of Issues).). This was denied This was denied by Mr. Jones and Mr Morris. by Mr. Jones and Mr Morris.[114]TheThe ClaimantClaimant''s evidencs evidence changed e changed during the during the course of her oral course of her oral evidenceevidence from it beifrom it beinng a Welsh white girl to a Welsh persong a Welsh white girl to a Welsh person. The. The change in change in the the ClaimantClaimant’’s s evidence undermineevidence underminedd the reliability of her recollthe reliability of her recollection. ection.[115]Further, andFurther, and as with other issues that as with other issues that have bhave beeen discusseden discussed already,already, no no complaint about this was ever raised by the complaint about this was ever raised by the ClaimantClaimant at the timeat the time,, despite despite the fact that one the fact that one of those against whom the allegation was made of those against whom the allegation was made wawas Mr. s Mr. Jones, about whom Jones, about whom the Claimant hadthe Claimant had already complained. already complained.[116]For those reasons, we fFor those reasons, we foundound the the ClaimantClaimant wawas mists mistaken in aken in her her recollection and the recollection and the incident incident complained of complained of did ndid noot happent happen. . It followed It followed that there was no that there was no unwantedunwanted conductconduct, as claimed., as claimed. Case No: 1601749/2020 - 20 - The Reaction to The Reaction to MistakesMistakes[117]TheThe ClaimantClaimant allegeallegedd that that Mr Mr Jones and Jones and Mr Morris wanted to know when Mr Morris wanted to know when she had made a mshe had made a mistake so istake so that they could harass and laugh at herthat they could harass and laugh at her (at (at [52] [52] –– [[53] 53] of theof the BundleBundle and Paragraph 3.1.6 of the and Paragraph 3.1.6 of the List of IssuesList of Issues).). On On the Claimantthe Claimant’’s case, s case, this this occurredoccurred betweenbetween October 2019 and October 2019 and MMarch arch 20202020,, afterafter she had ceased she had ceased workworkinging or sharor sharinging an office an office with Mr. Jwith Mr. Jones ones anand Mr Morrisd Mr Morris ((sincesince she had moshe had moved to ved to herher split role split role in in acaccountscounts and and receptionreception in the summer of 2019in the summer of 2019).).[118]Save for the ClaimantSave for the Claimant’’s s bare assertionsbare assertions, t, there was here was nono otherother evidence to evidence to support support the allegation. Ithe allegation. It was denied by Mr. Jones and Mr Morris. There t was denied by Mr. Jones and Mr Morris. There was no comwas no complaint by the plaint by the ClaimantClaimant at the time, even though once again at the time, even though once again the allegation included a complathe allegation included a complaintint involvinginvolving Mr. Jones, against whom Mr. Jones, against whom the the CCllaimantaimant had already complained in the past. had already complained in the past.[119]For those reasons, the Tribunal was unable to find that the allegation For those reasons, the Tribunal was unable to find that the allegation was pwas provenroven on the on the balancebalance of probabilities. of probabilities. As such, weAs such, we found found that what that what was was allegedalleged did not happendid not happen and, by extension, there was no unwanted and, by extension, there was no unwanted condconductuct Funny Looks Funny Looks[120]The The ClaimantClaimant made a specific allegation made a specific allegation of harassment by reason of of harassment by reason of race against race against AnnAnn Hawley, the recHawley, the reception managereption manager (at [53] (at [53] –– [[54] of the 54] of the BundleBundle and Paragraph 3.1.7 of the List of Issueand Paragraph 3.1.7 of the List of Issuess). ). She claimed that Ms She claimed that Ms HawleyHawley would stand behind her looking at her hair and giving would stand behind her looking at her hair and giving her her funny funny looks. looks. It was alleged that this course of conduct had taken place It was alleged that this course of conduct had taken place between between NoNovembervember 2019 and 2019 and MMarch 2020.arch 2020.[121]Again, save for the aAgain, save for the assertions ssertions by the Claimant, there wby the Claimant, there waas no other s no other evidenceevidence to support these allegations. to support these allegations. The allegations were The allegations were denied by denied by MMs Hawley. s Hawley. IIt was t was another example of another example of one word against another. one word against another.[122]The The ClaimantClaimant raised no raised no cocomplaintmplaint at the timeat the time, , despite despite allegingalleging that that thethe conduct was sustained over a period ofconduct was sustained over a period of momonthsnths. .[123]For those reasons, we For those reasons, we agaagain fin fouound that nd that complaints complaints werewere not made outnot made out, , did not, on balance, happen and, adid not, on balance, happen and, ass such, there was no unwanted such, there was no unwanted condconduct.uct. Telephone Message Telephone Message[124]The The ClaimantClaimant allegeallegedd that that Mr Mr Jones humiliated heJones humiliated her when he emailed her r when he emailed her about a telephone message from a clientabout a telephone message from a client ((at [54] of the Bundle).at [54] of the Bundle). This This related torelated to a telephone messagea telephone message tthat the hat the ClaimantClaimant passed to Mrpassed to Mr Jones Jones when she was working on receptionwhen she was working on reception. In his . In his evidevidenceence,, MrMr JJones accepted ones accepted that there was a conversation that there was a conversation with the Claimawith the Claimant nt about the namabout the name of e of the the person person within the clientwithin the client’’ss business that he was required to ring back. business that he was required to ring back. Case No: 1601749/2020 - 21 -[125]At this point, the Tribunal observed that this was another example of Mr At this point, the Tribunal observed that this was another example of Mr Jones making Jones making conconcessionscessions of his own volition (as he had done of his own volition (as he had done in in acceacceptingpting he had become frustrated by her failure to follow his he had become frustrated by her failure to follow his instructionsinstructions).). Those concessions enhanced Mr JonesThose concessions enhanced Mr Jones’’ credibility as credibility as a a witness.witness.[126]The The ClaimantClaimant’’s recollection in respect to this s recollection in respect to this particular particular allegatallegation was ion was vague as tvague as to the date it took placeo the date it took place (she placed it (she placed it somewheresomewhere between 2 between 2 February February and 20 and 20 MMarch 2020). arch 2020). She did not cShe did not comomplain about her treatment plain about her treatment at the time, at the time, despite having previously complained about Mr. Jones. As despite having previously complained about Mr. Jones. As such, we preferred Mr Josuch, we preferred Mr Jones'nes' recollectrecollection that heion that he hadhad simply simply checked checked withwith the the ClaimClaimantant as to theas to the name of the client contact he had to ring backname of the client contact he had to ring back and and did so indid so in a ma manner that was neither unwanted nor anner that was neither unwanted nor humiliatinghumiliating..[127]As such, the allegation of unwanted As such, the allegation of unwanted treatmenttreatment was not made out.was not made out. The Scanner The Scanner[128]The The ClaimantClaimant alleged that Mr. Jones would ask her to move from the alleged that Mr. Jones would ask her to move from the scanner in the scanner in the corridor corridor but that he would not do that with anyone elsebut that he would not do that with anyone else (at (at [54] [54] –– [[55] of the Bundle55] of the Bundle and Paragraph 3and Paragraph 3.1.8 of the List of Issues.1.8 of the List of Issues).).[129]Again, there was no evidence that the Again, there was no evidence that the ClaimantClaimant raisedraised this with her this with her managers or with her cmanagers or with her colleaguesolleagues at the timeat the time, despite it , despite it again relating to again relating to Mr. JMr. Jones, ones, against whom she had had no compulsion against whom she had had no compulsion over raisingover raising complaincomplaintsts in June in June 20192019. .[130]In addition, tIn addition, there was evidenchere was evidencee oof a plausible explanf a plausible explanation for why stafation for why staff f using this scanner would be required to using this scanner would be required to pausepause scanningscanning. It was . It was to allow to allow prinprinting to take place through the same machine. It was conceivable that ting to take place through the same machine. It was conceivable that the the ClaimantClaimant would have been asked to move away from the scanner for would have been asked to move away from the scanner for ththatat purposepurpose..[131]However, we were unable tHowever, we were unable to find on the o find on the evidenceevidence before us thatbefore us that the the CClaimalaimant was targetednt was targeted or that being asked to move whilst or that being asked to move whilst printingprinting was was undertaken was unwanted undertaken was unwanted conductconduct.. Even if it was, there was no Even if it was, there was no evidenceevidence from which the Tribunal could have from which the Tribunal could have reasonablyreasonably inferred inferred that that such a requessuch a request was because of the Claimantt was because of the Claimant’’s race.s race. W Weelsh lsh WWeelshlsh[132]There was anThere was anotherother allegatiallegation relating to on relating to MsMs Hawley, Hawley, from which the from which the phrase phrase ‘‘WeWelsh lsh WelshWelsh’’ derived derived ((aat [t [55] 55] –– [[56] of the Bundle56] of the Bundle and and Paragraph 3.1.8 of the List of IssuesParagraph 3.1.8 of the List of Issues)). The al. The allegatlegation was that Mion was that Ms s Hawley Hawley hadhad told told the the ClaimantClaimant that that a a shop owner in shop owner in the locality was very the locality was very ““Welsh WelshWelsh Welsh””, which meant that he would support , which meant that he would support other Welsh peopleother Welsh people and be there for each otherand be there for each other ((accordingaccording to the Claimantto the Claimant’’s allegation)s allegation)..[133]TheThe ClaimantClaimant furtherfurther allegeallegedd that that she was left she was left ““speespeechless and chless and disgusteddisgusted””. M. Mss HHawleyawley denied saying this or even knowing what denied saying this or even knowing what ‘‘WelsWelsh h Case No: 1601749/2020 - 22 - Welsh Welsh’’ meant. There meant. There was was alsoalso disagreement between thdisagreement between the e ClaimantClaimant and and MMs Hawley over which shos Hawley over which shopp the alleged the alleged comment comment was directed at. was directed at.[134]There was no other There was no other evidence of the conversatevidence of the conversationion. No complaint was . No complaint was made by the made by the ClaimantClaimant at the timeat the time, despite , despite herher claim thatclaim that it it left left her her ““speechless and disgustedspeechless and disgusted..”” In any event, evenIn any event, even taken at its highest, it taken at its highest, it was a comment about a shop owner. It was a comment about a shop owner. It was not awas not a comment about the comment about the ClaimantClaimant or a comment about or a comment about any of the Respondentany of the Respondent’s staff.’s staff.[135]AAs sucs such, the h, the TribunalTribunal concludedconcluded that the that the ClaClaimimanantt’’s recollection s recollection wawas s mistaken and there mistaken and there was nowas no unwanted conduct.unwanted conduct. In the alternativeIn the alternative, and, and on on the the ClaimantClaimant's own case, the comment was about someone else 's own case, the comment was about someone else unconnected with the unconnected with the ResRespondentpondent’’ss bbusinessusiness thatthat was not was not directed atdirected at the the ClaimantClaimant, was not , was not uunwanted conduct, and could notnwanted conduct, and could not,, objectively objectively assessedassessed,, have caused the have caused the ClaimantClaimant the the levelslevels of distress alleged or of distress alleged or required to make out a required to make out a complaintcomplaint of harassmentof harassment (namely, (namely, violviolating ating the the ClaimaClaimantnt’’s s dignity, dignity, oror creaticreating an intimidating, hosting an intimidating, hostile, dele, degrading, grading, humiliating or humiliating or offensiveoffensive envirenvironmonmeentnt for for the Claithe Claimant)mant).. The Office Move The Office Move[136]The final allegation in the Scott schedThe final allegation in the Scott scheduleule relatedrelated to a request by to a request by Rebecca Williams, the accounts managerRebecca Williams, the accounts manager,, for the for the ClaiClaimantmant to move to a to move to a different officedifferent office (at [56](at [56] of the Bundle)of the Bundle). The all. The allegation egation waswas that the that the ClaimantClaimant was not provided with a desk in which to put her belongings. was not provided with a desk in which to put her belongings. RRather,ather, she was given she was given shelf spaceshelf space. . ThatThat was not materially challenged was not materially challenged by the by the RespondentRespondent. We f. We foundound,, therefore, that the allegation therefore, that the allegation wawas made s made outout, namely, namely that whenthat when the the ClaimantClaimant momoved between offices in Mved between offices in March arch 2020, 2020, she was not provided with desk space for she was not provided with desk space for her her belongings, but belongings, but rather some shelf space. rather some shelf space.[137]Even if we acceptEven if we accepted thated that this was unwanted cothis was unwanted conductnduct (i(in n that the that the ClaimantClaimant wanted wanted deskdesk space for herspace for her belongingsbelongings), t), there was here was no evidence no evidence thatthat cocoululd reasonable permit an inference that the reason for that was d reasonable permit an inference that the reason for that was because of the because of the Claimant’sClaimant’s race. race.[138]In addition, being provided with shelf space as oppose to desk space In addition, being provided with shelf space as oppose to desk space ccould ould not havenot have objectively demeaned objectively demeaned the Claimant the Claimant or created a hostile, or created a hostile, degradindegrading, intimidating or offensive environment. In other words, it was g, intimidating or offensive environment. In other words, it was not an act of harassmentnot an act of harassment, s, still less was an act of harassmenttill less was an act of harassment tthathat rerelated lated to the to the ClaimantClaimant’’s race. s race. The Pe The Perfumerfume[139]There was one other allegation which was nThere was one other allegation which was not in the Scott ot in the Scott SSchedulechedule or or the Lthe List of ist of IIssues butssues but was referred to in the was referred to in the ClaimaClaimantnt’’s witness statement s witness statement and was put as a specific allegationand was put as a specific allegation toto SSeraera GriffithsGriffiths. As it was explored . As it was explored in evin evidence, the Tribunal idence, the Tribunal believedbelieved it only right to consider and determine it only right to consider and determine it.it. Case No: 1601749/2020 - 23 -[140]TThe he ClaimantClaimant alleged that she offalleged that she offered a roll on perfume to ered a roll on perfume to MsMs Griffiths, Griffiths, who refused it after being told by the who refused it after being told by the ClaimantClaimant that that she hashe had ad already used lready used itit herself.herself. The The ClaimantClaimant sasaidid thatthat Ms GriffithsMs Griffiths refusal was refusal was becabecause of the use of the ClaimantClaimant's race's race and skin colour.and skin colour.[141]MsMs Griffiths denied thGriffiths denied the allegation, which se allegation, which she said he said waswas simply not true. simply not true. RRather,ather, she recalled thatshe recalled that the the ClaimantClaimant had asked her to smell had asked her to smell a number a number ofof roll on roll on perfumes and perfumes and say which one she preferred. Only after say which one she preferred. Only after indiindicating a preference didcating a preference did the the ClaimantClaimant offer offer it to her as a gift. it to her as a gift. Ms Ms Griffiths dGriffiths declined eclined the gift the gift because previous roll on deodorants had because previous roll on deodorants had irritated her skinirritated her skin.. It hIt has as nothing to do with the nothing to do with the ClaimantClaimant’’s s prior prior use of it or use of it or her her race or skin colour.race or skin colour.[142]Again, the Again, the ClaClaimantimant did notdid not at the at the timetime rairaise any se any complaintcomplaint wwith ith a a partnerpartner,, managermanager or any other colleague or any other colleague of theof the RespondentRespondent. . MMss Griffiths Griffiths providedprovided aa plausible explanation for why she declined plausible explanation for why she declined thethe gift. There was gift. There was no other evidence to support the no other evidence to support the allegationallegation that the that the ClaiClaimantmant’’s race had s race had played any part in her decision. It was suppositionplayed any part in her decision. It was supposition anandd assumption assumption by by the the ClaiClaimantmant..[143]ForFor those reasonsthose reasons,, we preferred we preferred Ms GriffithsMs Griffiths’’ recollection. recollection. It followed that It followed that ththere was nothing from which the Tribunal could infer that ere was nothing from which the Tribunal could infer that the refusal of the refusal of the the roll on perfume was because roll on perfume was because oof the Claimantf the Claimant’’s ras race.ce. There wasThere was no no unwunwanted conduct or less favourable treatmentanted conduct or less favourable treatment and whether and whether allegedalleged as as an act of an act of direct discrimination or harassment, the direct discrimination or harassment, the complaintcomplaint was not was not made out.made out. Discrimination Discrimination ComplaintsComplaints: : ConclConclusionsusions[144]FoFor all of those reasons, the r all of those reasons, the complcomplaiaintsnts of direct race discrimination of direct race discrimination were not made out, were not made out, becaubecausese eithereither the unfavourable treatment the unfavourable treatment complained of complained of was not proven and did not occurwas not proven and did not occur oror there was there was insufficientinsufficient evidenceevidence to infer that any to infer that any conductconduct by the Respondent by the Respondent towards the towards the Claimant Claimant was because of her race.was because of her race.[145]The The complaicomplaintsnts of harassment by reason of of harassment by reason of race were race were similarly similarly not made not made outout, , because tbecause thehe allegations of allegations of unwanted unwanted conductconduct werewere not made outnot made out oror the the thresholdthreshold for harassment was not objectively for harassment was not objectively pprovenroven. In addition. In addition, , there was insufficient evidence to infer that any conduct by the there was insufficient evidence to infer that any conduct by the Respondent towards the Claimant was Respondent towards the Claimant was because of her racebecause of her race.. W Written Particularsritten Particulars[146]AAs already s already noted, tnoted, the Respondent conceded that it failed in its dutyhe Respondent conceded that it failed in its duty to to provide provide the the ClaimantClaimant with with a a written written ststatement of her atement of her particularsparticulars of of employmentemployment (per section 1 of the ERA 1996)(per section 1 of the ERA 1996). .[147]HHowever, owever, we have not found in the we have not found in the ClaimantClaimant’’ss ffavour on any of her avour on any of her complcomplaints under theaints under the EqA 2010EqA 2010. By reason of section 38 of the . By reason of section 38 of the Employment Act 2002, Employment Act 2002, there can be no award of compenthere can be no award of compensation for the sation for the failure to provide written particulars.failure to provide written particulars. Indeed, Indeed, that that requirequirement was rement was Case No: 1601749/2020 - 24 - flagged up flagged up by Eby Employment mployment Judge SharpJudge Sharp in herin her case management ordercase management order of 16 April 2021 (Paragraph 47of 16 April 2021 (Paragraph 47, at [66] of the Bundle)., at [66] of the Bundle).[148]As nAs no other o other ccomplaintsomplaints havehave succeeded in this casucceeded in this case, se, by lawby law,, there can there can be no award of compensation. be no award of compensation. Time Limits Time Limits[149]The fThe fiinal issue we nal issue we addressed wasaddressed was one of time one of time limits. This limits. This waswas,, in effectin effect, , an an academicacademic exercise bexercise because none of the ecause none of the complcomplaiaintsnts of discrimination of discrimination succeeded. However, it was succeeded. However, it was anan issueissue that wasthat was rraised before us and aised before us and we we heardheard submissions on it. It also submissions on it. It also went went toto ourour jurisdiction and therefore jurisdiction and therefore we we consideredconsidered and determinedand determined it. it.[150]As indicated in the As indicated in the LList of ist of IIssuesssues (at Paragraph 1.1)(at Paragraph 1.1), because of the , because of the datedatess of ACASof ACAS Early Conciliation andEarly Conciliation and the date when the cthe date when the claim was laim was presentedpresented to the Tribunalto the Tribunal, any allegation , any allegation relied uprelied upon on by the by the ClaimantClaimant that that predated predated 2727 December 2019December 2019 had been preshad been preseented nted out of tout of timeime. .[151]The The TribunalTribunal hahadd the powerthe power, by reason of section 123 of , by reason of section 123 of the the EqA 2010 EqA 2010 to to in effect in effect extend time where it extend time where it wawas justs just and equitable to do so. That and equitable to do so. That requirerequiredd the the TribunalTribunal to considto consider the respective position of bother the respective position of both parties parties and the relative prejudice of either extending time or refand the relative prejudice of either extending time or refusing to extend using to extend time. time.[152]TheThe ClaimantClaimant actacteded without legal representationwithout legal representation.. She was She was as a litigantas a litigant in in person throughout tperson throughout these proceedingshese proceedings She wasShe was not a lawyenot a lawyerr, , a factor a factor that that weighweigheded in her favourin her favour when when consideringconsidering whetherwhether to extend time.to extend time.[153]However, there However, there werewere a number of difficulties faced by the a number of difficulties faced by the ClaimantClaimant in in ththatat regard. First of all, on her own case, shregard. First of all, on her own case, she went to e went to CitizensCitizens’’ Advice Advice in in the summerthe summer of 2019. of 2019. SheShe did notdid not take employment advicetake employment advice oon than that t occasionoccasion butbut failed to profailed to provide any explanation for why she did not return vide any explanation for why she did not return to Citizensto Citizens’’ AdviceAdvice aat any point between then and Jt any point between then and June une 2020 to take 2020 to take advice on her emploadvice on her employmyment situation. This was against the backdrop of ent situation. This was against the backdrop of the the ClaimClaimantant saying thatsaying that she was, in hshe was, in her words, being continuously er words, being continuously discriminated against because of her race throughout her employment. discriminated against because of her race throughout her employment. And yet, at no time, despite knowing of the existence of CitizensAnd yet, at no time, despite knowing of the existence of Citizens’’ AAdvicdvicee,, did she seek to avail herself of their services so that she would be aware did she seek to avail herself of their services so that she would be aware of how and whenof how and when to bto bring her claimring her claim. .[154]In addition, In addition, there there werewere a number of different alleged acts ofa number of different alleged acts of discrimination carried out by differendiscrimination carried out by different people in the t people in the RespondentRespondent's 's organisatioorganisation. n. EvenEven taking those allegations at their highest, we weretaking those allegations at their highest, we were unable to find that there was any continuing act of discrimination which unable to find that there was any continuing act of discrimination which would have brought would have brought allegationsallegations,, which were otherwise out which were otherwise out ofof timetime,, in in timetime. .[155]For the For the RespondentRespondent, we ha, we hadd to weigh into weigh into the bato the balance that lance that allegationsallegations prepre--dating 27 December 2019dating 27 December 2019, by definition, , by definition, werewere out of time and out of time and therefore stale. They therefore stale. They were were historichistoric,, which impactedwhich impacted oon the n the ResRespondentpondent’’s s Case No: 1601749/2020 - 25 - ability to respond to them and ability to respond to them and provideprovide evidence in response toevidence in response to them. them. Indeed, iIndeed, in the evidence than the evidence that wet we ssawaw and heardand heard, the , the RespondentRespondent’’ss witnesses witnesses were at times were at times unable to remember events because of the time unable to remember events because of the time that hasthat has passed since they occurredpassed since they occurred..[156]ForFor all those reasonsall those reasons, , we foundwe found,, on balanceon balance,, that it was not just anthat it was not just andd equitable to extend equitable to extend time to allow thosetime to allow those aallegations that predated llegations that predated 2727 December 2019 to proceed. December 2019 to proceed.[157]However, However, we reiterate thatwe reiterate that such asuch a conclusionconclusion waswas acadeacademicmic because we because we found that none of the found that none of the cocomplmplainaintsts of discriminationof discrimination, including those that , including those that predated 27 December 2019,predated 27 December 2019, werewere made out. made out. Order posted to the parties on 11 March 2024 For Secretary of the Tribunals Mr N Roche EMPLOYMENT JUDGE S POVEY Dated: 11 March 2024 Case No: 1601749/2020 - 26 - APPENDIX List of Issues[1]Time Limits 1.1. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 27 December 2019 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 is to decide: 1.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 1.2.2. If not, was there conduct extending over a period? 1.2.3. If so, was the claim made to the Tribunal within three months plus early conciliation extension) of the end of that period? 1.2.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal is to decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?[2]Direct Race Discrimination (s.13 Equality Act 2010) 2.1. The Claimant’s race is black African and she compares herself with a possible combination of real people and a hypothetical comparator. This information is provided in the Scott Schedule at pages 41-56 of the Bundle. 2.2. Did the Respondent do the following things: 2.2.1. Continually extend the Claimant’s probation period without reasonable cause; 2.2.2. Repeatedly criticise the Claimant and her work; 2.2.3. Fail to provide proper, sufficient and structured training; 2.2.4. Fail to ensure the Claimant’s computer was fixed in a timely manner; 2.2.5. Allow managers to speak and raise their voice to the Claimant in an unreasonable way; 2.2.6. Allow a Sera Griffiths to ask the Claimant to go to the bank rather than doing it themselves; 2.2.7. Allow Sera Griffiths to ask the Claimant to clean a dirty window but didn’t ask any other colleagues to do so or do it herself; 2.2.8. Refuse to furlough the Claimant; 2.2.9. Dismiss the Claimant without warning, consultation and fail to follow the disciplinary policy. Case No: 1601749/2020 - 27 - 2.3. Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. 2.4. If it was less favourable treatment, was it because of the Claimant’s race? 2.5. Did the Respondent’s treatment amount to a detriment?[3]Harassment related to race (s.26 Equality Act 2010) 3.1. Did the Respondent do the following things: 3.1.1. Allow Sion Jones and Dylan Morris to cause tension in the office by: never saying hello in response to the Claimant’s greetings; complaining that the Claimant was too quiet; swapping from English to Welsh when the Claimant entered the office; Dylan Morris standing up from his desk and angrily exiting the room for no reason; 3.1.2. Allow Sion Jones to refer to ‘bloody foreigners’ in the presence of the Claimant; 3.1.3. Allow Dylan Morris to use terms such as ‘third world war’ in reference to visitors to Wales; 3.1.4. Allow colleagues to speak in Welsh in order to exclude the Claimant from conversations, but in English when they intended to harass her; 3.1.5. Allow Sion Jones, Dylan Morris and other to say that the Claimant’s job ‘should have been given to a Welsh girl’; 3.1.6. Allow Sion Jones and Dylan Morris to laugh at the Claimant when she made a mistake; 3.1.7. Allow Ann Hawley to stand behind the Claimant giving her funny looks and repeatedly asking how her braids were done 3.1.8. Allow Sion Jones to ask the Claimant to move from the scanner in the corridor, but not ask anyone else to do the same; 3.1.9. Allow Ann Hawley to say to the Claimant that people in the area are ‘very Welsh Welsh’; 3.2. Was that unwanted conduct? 3.3. Did it relate to the Claimant’s race? 3.4. Did it have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 3.5. If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Case No: 1601749/2020 - 28 -[4]Failure to supply a statement of employment particulars 4.1. When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars? The Respondent concedes that it was in breach. 4.2. Are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay. 4.3. Would it be just and equitable to award four weeks’ pay?