Ms E Zhang v Heliocor Ltd and Others: 2201744/2020

EMPLOYMENT TRIBUNALS

Case No 2201744/2020

Between

Ms E ZhangClaimant

Heliocor Ltd and OthersRespondent

Before

Employment Judge Russell

Date 1 March 2024

JUDGMENT

[1]The Claimant’s application for a reconsideration of my judgement of 16 September is out of time under Rule 71 of the ET Rules and there is no ground to extend time under Rule 5 or otherwise .

[2]In respect of the Claimant’s application for a reconsideration of my judgment of 16 September and in any event I further confirm my original decision under Rule 70 of the ET Rules to refuse the addition of Mr Tripathi as a respondent in these proceedings .

[3]In respect of the Claimant’s application under Rule 34 of the ET Rules to amend her claim to include Mr Hall and or Mr Tripathi as a respondent(s) in these proceedings I refuse the Claimant’s application.

[4]The Claimant had a full opportunity to make representations at the case management hearing of 11 September and it is not in the interests of justice to set aside those orders or judgement and the Claimant’s application under Rule 29/30 of the ET Rules is also refused . Background

[5]I heard this matter at a Preliminary Hearing on 11 September leading to a Judgment and case management orders of 16 September. There was then a further Open Preliminary Hearing ( heard by Employment Judge Pearl on 12 October ). Both parties were represented at these online hearings. The case remains listed for a full Tribunal hearing for 4 days on 12,13,14,15 January 2021.

[6]The case, aside from the applications referred to below and being considered for this judgment , had been stayed until 13 November 2020.

[7]The Claimant made three applications as of 15 October 2020 I. An out of time application for reconsideration of the 16 September decision not to add Mr Tripathi as an individual respondent, under rules 70-71 of the ET Rules. II. Alternatively, an application to vary or set aside the 16 September decision not to add Mr Tripathi as an individual respondent, under rules 29-30 of the ET Rules. III. A new application to add Messrs Tripathi (MD of the First Respondent) and/or Mr Hall (CEO of First Respondent ) as individual respondents in respect of the Claimant’s race discrimination claim under rule 34 of the ET Rules.

[8]In the light of these applications I have , in particular , reconsidered my Judgment of 16 September and decision not to add Mr Tripathi as a party to the proceedings ( first considered by me on 11 September ) and considered an application to add Mr Hall to the proceedings ( an application first anticipated in the hearing before EJ Pearl on 12 October) .Both individuals were employees of the First Respondent at all material times. I have considered EJ Pearl’s judgement following the hearing on 12 October and have carefully read the Claimant’s application for reconsideration and to amend the claim and the First Respondent’s response to it with supporting documents and authorities in each case. I have determined that the Claimant’s three applications are all refused/unsuccessful for these reasons. Reasons for my Judgment Reconsideration Application out of Time

[9]The Claimant’s application for reconsideration was not made at the original hearing of 11 September and so should have been submitted by 30 September and was therefore some two weeks out of time in breach of Rule 71 of the ET Rules . The Claimant has been legally represented throughout this period .There is no evident substantive reason for the delay in the application for reconsideration of the 16 September decision ( seeking to add Mr Tripathi as an individual respondent) and I do not find it is necessary in the interests of justice to extend time and do not do so . I have however nevertheless also considered the application on its merits in order to ensure fairness to the Claimant by resolving the point substantively. Additional Parties

[10]At the PH on 11 September 2020, both the Claimant and the First Respondent were represented by solicitors . She was fully heard on that occasion as to the position of Mr Tripathi and made no application to join in Mr Hall as a party.

[11]Although the Claimant’s representative states the Claimant submitted her ET1 as a litigant in person without having had advice as to her employment rights at that time (thus in part explaining why the individual respondents were not then added ) both Mr Tripathi and Mr Hall were referred to specifically in the ET1 and could have been joined in the proceedings then . And the Claimant stated on 11 September that she was aware that she could have included Mr Tripathi as a respondent if she had wished. She may not have been aware of this at the time of lodging her complaint but if so then she should have been so aware.

[12]Although the Claimant is correct to state that under, s.109/110 of the Equality Act 2010 employees and agents may themselves be personally liable and that in these circumstances, any “individual perpetrators can (and often are) joined to the proceedings as a separate respondent(s) at the case management stage in accordance with r.34 ETR” , the fact is , they were not . Nor were they , of course , joined as respondents at the instigation of the claim . Material Facts/Change of Circumstances

[13]I do not accept there has been a material change of circumstances since my 16 September decision that justifies varying or revoking it. In particular, neither the fact that the First Respondent seeks to argue , in part , as to the shareholding of the Second Respondent nor the small deposit order now applied to the Claimant in respect of one of her claims ( relating to holiday ) amount to a material change that does or may justify me changing my decision not to allow the application to join Mr Tripathi as a party to proceedings.

[14]I note that EJ Pearl did not accept the First Respondent’s argument that the Claimant’s claim to have been employed by First Respondent had little reasonable prospects of success. I also note his determination that the WhatsApp message examples, sent by Mr Tripathi might amount to harassment depending on the evidence . But neither finding is material to my original decision other than perhaps adding substance to the decision not to include Mr Tripathi as both Respondents remain as parties to the full hearing including the employer of both Mr Tripathi and Mr Hall .And both will also no doubt give evidence .

[15]As far as Mr Hall is concerned the Claimant did not seek to join Mr Hall as a party at the 16 September hearing and he is not named in respect of any specific allegations in the Claimant’s ET1. As there are no express allegations of discrimination against Mr Hall there is no basis to join Mr Hall as a respondent to the Claimant’s race discrimination claim and there has been no explanation why the application to join him is made at such a late stage or why it was not made on 11 September.

[16]As far as both Mr Hall and Mr Tripathi is concerned there are no new material facts that have arisen that the Claimant has become aware of, since the September hearing. The Claimant may be concerned as the conduct of the First Respondent , then and now and as to ( in her mind ) an anticipated attempt to undermine her claim by putting the second respondent into insolvency , but her scepticism is speculative and longstanding . Certainly, no new material facts have emerged since 11 September , even if the position evolves as one might expect , to justify a reconsideration of the decision not to join in Mr Tripathi as a respondent. Balance of Prejudice

[17]I did consider the balance of prejudice ( noting the Claimant’s reference to the case of Orford v S Three Staffing UK Ltd

UKEAT/0058/13

) when determining whether to grant the then application to join Mr Tripathi to the proceedings as a respondent on 11 September. And I also then took account of the Presidential Guidance on General Case Management . In considering prejudice , the Tribunal must consider any prejudice suffered by all affected parties/individuals. It is not necessarily the case that the Claimant will suffer greater prejudice if the applications are refused than Mr Tripathi and Mr Hall if they were accepted. Adding them into the proceedings as respondents puts them at a significant potential prejudice and the Claimant already has a claim against the First and the Second Respondent which proceeds to a full hearing .

[18]I take account of the decision in Cocking v Sandhurst (Stationers) Ltd

[1974] ICR 650

reminding me that a new respondent should only be added or substituted where a tribunal is satisfied that a “genuine mistake” has been made that is not misleading or such as to cause reasonable doubt as to the identity of a party to the proceedings. And the further test as to “ injustice or hardship which may be caused to any of the parties including those proposed to be added “ has been considered by me already in respect of Mr Tripathi . And I come to the same conclusion in respect of Mr Hall and for the same reasons. I acknowledge the Claimant’s obvious wish to have both Mr Hall and Mr Tripathi added as parties to widen the net of her claim and the possibility that she may otherwise be left with limited recourse dependent on the outcome of the full tribunal hearing . But that is the case with may discrimination claims . And if Mr Hall and Mr Tripathi are added as respondents, they will experience hardship and injustice, in having to give evidence on their own behalf and being potentially individually liable as respondents.

[19]I had already considered the Selkent Bus Company Ltd v Moore

[1996] IRLR 661

decision (as stated in my earlier judgement) as part of my balancing exercise of all the relevant circumstances when considering the original application to amend. In particular I found then and find now that the amendments sought are substantial and there is no explanation as to why the amendment to include Mr Hall as a respondent was not made on September 11 other than, perhaps , the Claimant’s representative had not had the time to prepare for the hearing which ( if that excuse is given ) is an inadequate reason. I also observe the Claimant had been receiving at least some legal advice from June 2020 and so the suggestion she could not be expected to properly advance all her claims on 11 September is without merit.

[20]In my original judgment I did consider whether I could determine the issue of joining in Mr Tripathi whilst leaving the issue of the Claimant’s claim against the First Respondent to a separate hearing. And determined that whether the Claimant is an employee of the First or Second Respondent it was not reasonable for her to join Mr Tripathi as a party. That decision is confirmed and for the reasons given above and the further applications to amend the claim now to include Mr Tripathi and Mr Hall are refused.

REASONS

[1]The 1st respondent makes this application after disclosure and argues that the unusually large amount of relevant documentation shows there is no little or no reasonable prospect of the claimant being able to prove that conduct towards her was related to or because of her race.

[2]Set out below are the 1st respondent’s arguments, the comments C and of R3 (who supports and adopts R1’s applications as his own) in respect of each allegation. PHCM Order (NEW August 2020) 1 of 11 August 2020 Allegation 1 – around March 2019 when C asked to visit her sick grandfather R3 shouted at C saying words such as: ‘you are an asshole, you are just a piece of tool to me. If you don’t come back with me your plane will crash, you will die on the journey’.

[3]R1’s argument is that the documents show a more caring attitude: when in June 2019 C said she may need to go to China early, R3 sent two messages “Oh” “Sure”; on 22 June after C’s grandfather had died, “So sad to hear.” A subsequent message: “I am happy I persuaded you to go early.”

[4]Ms Skehan argued that the allegations of harassment are “out of sync” with these documents, that there is “no reasonable prospect” of an Employment Tribunal finding otherwise.

[5]Mr Tripathi argued C did not discuss her grandfather with him in March 2019; in any event “I would never use such language”. He referred to her positive message about her going to China early. He argued that he allowed C time off, including for elective surgery.

[6]Ms Zhang argued that she needed to book leave with Mr Tripathi, and he refused it in March 2019; there is evidence that he was regularly abusive towards her and this is one example. Allegation 2: On / around June 2019 R3 said to the claimant when she was late for a meeting , ‘Fuck You’ and ‘Shame on you’

[7]Ms Skehan argued that C “uses the same language” referring to page 185 and 3 messages from C to R3: “I told you”; Fuck him”; “taiwanese…”. And 186, in messages about C wanting a “chinese bf”, and R3 suggesting “Indian”, and “Irish” boyfriends, C sent clearly racist messages referring to Irish people: “I hate irish”; “potato eater”; “fuck irish”.

[8]There is no way argued Ms Skehan that the claimant can say that comments towards her were race discrimination or harassment, there were derogatory and discriminatory comments by both C and R3. “It’s a vexatious claim, there is no chance” C can persuade a tribunal her claim has prospects of success. Bad language was used in the office – see also 198 – C’s own evidence is that it is common, but there is no evidence that the language is on grounds of or connected to C’s race.

[9]Mr Tripathi argued that it was an atmosphere in which swear words including fuck were said a lot, but he did not say “fuck you”, that the word was never directed at the claimant; that Mr Cameron would agree with this. He said that the claimant was “more racist than probably I was”, referring to her racist language about the Irish.

[10]Ms Zhang argued that the office had a “toxic atmosphere” and she “picked up some bad habits”. She said that the ‘hating Irish’ comment was in this context, and she referred to having an Irish boyfriend in the past “not a good relationship.” She said that R3 “was a very powerful and difficult manager. I had no option but to go along with his style. He has the power over how PHCM Order (NEW August 2020) 2 of 11 August 2020 conversations take place.” She argued that the texts are not a complete record, but “you can see office environment he is creating. He is a sweary and argumentative and racist person –every colleague witnessed this.” Allegation 3: In around June 2019, Mr Tripathi requested all employees come to work with no more than one minute late. One day he came late and the claimant talked to her colleague Mohit Kumar in a very low voice and said Vikas is late. He later forced her to go into the small room and forced her to tell him what she had been discussing with Mohit. She refused to tell him, he told her, I’m telling you to tell me, just tell me. Then she had to tell Mr Tripathi what she was discussing with Mohit. He then abused her with comments such as ‘none of your fucking business’, told him to follow his orders and say Yes Sir to him.

[11]Ms Skehan argued that C “has identified the reason for this behaviour – because C whispered. The reason for C’s treatment is in the allegation”. There is no suggestion within the allegation that this was related to race or on grounds of race. Being told “none of your fucking business” is a profanity but not related to or on grounds of race. Swearwords were used often in this business.

[12]Mr Tripathi denied disrespecting the claimant, but he accepted that on one occasion, 4 April 2019, he asked her if her had disrespected her, and she said no. He referred to texts in July when she is asking him to drop her home “because you like helping people” – why would she write this if she was so disrespected? Allegation 4: The claimant’s grandfather passed away in June 2019, which occurred whilst she was on a business trip to Shenzhen. Mr Tripathi forced her to attend a business meeting instead of attending her grandfather’s funeral. Therefore, she had to miss her grandfather’s funeral. He recorded her business presentation on that day and he criticised that her on the bases that she didn’t perform and verbally threatened her and abused her again.

[13]Ms Skehan argued that the tone of the evidence shows the relationship between R3 and C does not support this allegation. The messages at 190 do not reference the funeral and are supportive by R3. “Had there been an issue it is inconceivable that they would not be referenced in messages”.

[14]Mr Tripathi said that C did not ask to attend the funeral, he was not aware that the funeral had not occurred by the date of the meeting, “if she had asked me I would have allowed her”. He said that today is the first day he knew the funeral was on 24 June. “No-one asked me and I never said no”. He says he was unaware there was a presentation on the same date as the funeral.

[15]Ms Zhang argued that she asked to attend the funeral but was instead told she must attend the presentation “he stopped me from going and I did not believe he would have done was I not Chinese”. She said Mr Tripathi contradicts himself – his statement said she attended the funeral; he now says he has just heard the funeral was on 24 June. PHCM Order (NEW August 2020) 3 of 11 August 2020 Allegation 5: Mr Tripathi took the claimant’s mobile phone (on 04 October 2019) and then her USB (around October 2019 and handed back around December 2019) without her permission and kept them with him. He took her mobile phone with him and forced her to beg him to return it. This happened in front of her previous colleagues Roisin Hunter, Mohit Kumar and Heliocor Ltd investor Roger Sherma. He also recorded a video about her pleading with him to give back the phone. He returned the phone to her later the same day on 04 October 2019.

[16]Ms Skelton argued that there is no reference to race in this allegation, “so how is it discrimination?” 192-3 shows the text exchanges on 4 October 2019, arrangements to leave together to attend training, reference to emailing photos. “When look at the documents, there is no reasonable prospect of C being able to show the allegation occurred”. The documents show a “nice relationship, inconsistent with this allegation, which suggests the allegation is fabricated”.

[17]The claimant argued that R3 took her phone over dinner and he gave it back to her 20 – 30 minutes later. “This was in front of the investor, and the investor said give her back her phone and R3 said no and started taking a video of me – and he said, ‘beg me to give you back the phone’ and he saved a video on his phone of me saying this”.

[18]Mr Tripathi denied the event with the phone took place, he says he was interacting with her on text all day, referring to a page with messages between 12.37 and 16.40 (53). Allegation 6: On 06 November 2019, the claimant applied for a business trip with Owen Hall and received permission to go to Malta. Since Mr Tripathi was not in the UK and she was mentally abused by him for a long time therefore she was not able to communicate with him. She didn’t update Mr Tripathi of her schedule and later when he came back to London, he called her into the small room and abused her verbally for an hour and forced her to write an email and apologise to him.

[19]Ms Skehan argued that even if it was true that this comment was made, and it is denied by R3, it does not show race was a factor in this decision. Again, the reason for the treatment is in the allegation – C did not update R3, and he shouted at her and was forced to apologise.

[20]Ms Skehan accepted that discrimination is not often expressly stated, but she argued “it is unusual for an ET to have uncontested visibility into their relationship”. She argued that there is “strong evidence” that C is aware of issues of discrimination , and she comments repeatedly on race; but she never references allegations against him in any documents. A hypothetical comparator – a white UK born employee – in this context would be treated the same.

[21]Mr Tripathi argued that by this date “we were not communicating, C is acting weird and doing things on her own terms…”. He said this included “personal stuff, and not company stuff”. She was not reporting into him by this date she was reporting to Owen Hall. “I do not decide who goes to Malta. And I did not abuse her”. PHCM Order (NEW August 2020) 4 of 11 August 2020 Allegation 7: Before the 2019 company Christmas party, to stop me from attending the party at Barcelona, Mr Tripathi lied on behalf of the claimant to company CEO Owen Hall. He said that because her colleague Mohit Kumar doesn't have a visa to go she therefore also didn’t want to go. she never said this to him. The truth was discovered after Owen Hall mentioned it in the office and she also asked him in front of other colleagues, why did you say this? He texted her later and said, ‘don’t shout’. This was seen and witnessed by other colleagues.

[22]Ms Skehan argued that the evidence shows Mr Tripathi encouraged the claimant to attend the party – page 55 “I want u to come to Spain”, and tells her to “get visa”. Again this evidence contradicts the allegation.

[23]In response, Ms Zhang argued that these were emails earlier in the year, but by December she was told she could not attend, and that tickets were booked for 10 employees based in London, only two did not attend, her and an Indian national employee who had a visa difficulty. Allegation 8: On or around March 2020 Mr Tripathi made overtly racist comments about people who are ethnically Chinese, and their characteristics and appearance using the words ‘’Chinese are thieves, they steal everything. Indians will beat up the Chinese. Chinese have small eyes, China is going to kill all the COVID patients, what a stupid country it is’.

[24]There are some references to China in documents sent by Mr Tripathi: Mr Tripathi forwards a website article to ‘London Sales” including the claimant, the headline is: “China to seek courts approval to kill the [sic] over 20,000 coronavirus patients…”’ another was of a video of then USA President Trump talking about the ‘Chinese virus”.

[25]Ms Skehan argued that these documents “do not come close” to the allegations. There is no proof that these comments were made, no evidence that Mr Tripathi made overtly racist comments as alleged. This damages the claimant’s credibility, at this time there was an “open and friendly relationship” between her and Mr Tripathi. It is unlikely that a tribunal could find that the claimant would continue to interact with Mr Tripathi if he was being so racist.

[26]Ms Skehan argued that the statement and answers to lawyers’ questions provided by Mr Cameron on behalf of the claimant provides at its highest evidence that Mr Cameron believed Mr Tripathi was acting with “subconscious” racism in saying the claimant spoke “Chinese”, and not Mandarin. There is no third-party evidence of harassment. While Mr Cameron does record the claimant saying “you’re so racist” so often it “became a company catchphrase” (164) there is no evidence that the events alleged took place, and in fact there is direct evidence that these events did not occur.

[27]The messages at 219 – 220 shows C and R3 discussing issues of race including about China and India; and then R3’s response: “Just being brown and Indian doesn’t make me unhygienic”; “I am disappointed and offended with your comments…”. The claimant responded, “Okay sorry about that.” This PHCM Order (NEW August 2020) 5 of 11 August 2020 does not evidence discrimination. The “tone of this is the inconsistency of C’s allegations.”

[28]The claimant argued that the messages sent with reference to coronavirus were not relevant to our work, that she is the only Chinese person in the group and the messages are clearly fake and micro-aggressive - “is China going to kill 20,000 coronavirus patients?”; and she responded to the messages texting “impossible” and “fake news”. She said that many of the comments about Chinese people were made in the pub and in the office “you have small eyes”; “why are your eyes so small”. She argued that this was an “accumulation” of comments, for example one comment at a group lunch, one in the office. She said that these comments were heard by colleagues.

[29]On the allegation from R3 that she had called Indians unhygienic and dirty “this is not true”. She said she handed R3 some food and he said ‘you have tied your shoelaces and not washed your hands and so I will not eat this. Are all Chinese like this?’. She said that she responded, ‘your desk is like a bin, are Indians like this?’ “And he got angry and texted me”.

[30]Mr Tripathi argued that he had stopped communicating with the claimant in October 2019, so he cannot have made the comments alleged. During the covid pandemic he was in Essex, there were “no communications” at all with the claimant from 8 January 2020 onwards “I never met her in person since.

[31]In the messages about China, these were “forwarded to the group” when they were all sitting in a bar, They were discussing the covid outbreak and its impact in a bar and I said that Italy was impacted more. There was information sharing only, without comment. He said he would have forwarded the same article had it been about India.

[32]Mr Tripathi referred to the following text exchange at page 59, “when we were talking” as indicative of the friendly exchanges they had, including about race. He forwarded a photo of a bus he was on in China saying, “so many Chinese people”. The claimant responded: “Lol”; “Don’t be racist”, Mr Tripathi responded “How’s that racist?”. The claimant responded: “I can feel you talk in a racist way.”; “I can smell your tone”. Mr Tripathi responded, “You can feel and smell whatever you what Miss Zhang.” The claimant responded, laughing.

[33]The claimant argued that she had invested in the company and was an employee of the company. “I need to ensure my investment is safe, and he has power and I am alone in the UK.” She said that his use of language “is a demonstration of power and I had no choice but to follow him and humour him and start mimicking his ways.”

The Law

[34]The Employment Tribunals (Constitution and Rules of Procedure) Regulations Striking out Rule 37 PHCM Order (NEW August 2020) 6 of 11 August 2020

(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—

a. that it is scandalous or vexatious or has no reasonable prospect of success;

b. that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

c. …

(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. Deposit orders Rule 39 (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. …

[35]Case lawa. Balls v Downham Market High School and College

UKEAT/0343/10

: The process to be adopted: “The tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word “no” because it shows that the test is not whether the claimant's claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.”

b. Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly

[2012] CSIH 46

: The power to strike out on the ground that it has no reasonable prospect of success must only be exercised in rare circumstances, and should not, as a general principle, be struck out on this ground when the central facts are in dispute

c. Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

: where there is 'a crucial core of disputed facts' that was 'not susceptible to determination otherwise than by hearing and evaluating the evidence', the case should not PHCM Order (NEW August 2020) 7 of 11 August 2020 be struck out, because at a strike out hearing the tribunal is in no position to properly weigh competing evidence: it will be an exceptional case where it is justified to strike out as having no reasonable prospect of success.

d. Mechkarov v Citibank NA

UKEAT/0041/16

: The EAT formulated the following test: 1. only in the clearest case should a discrimination claim be struck out; 2. where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; 3. the Claimant's case must ordinarily be taken at its highest; 4. if the Claimant's case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and 5. a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.'

e. Romanowska v Aspirations Care Ltd

UKEAT/0015/14

: If there is a dispute about the ‘reasons why’ a decision maker acted as they did, and the parties have competing assertions on those reason, there is a crucial core of disputed fact in a case, and 'it will be very rare indeed that that dispute can be resolved without hearing from the parties who actually made the decision'.

f. Hawkins v Atex Group Ltd

[2012] IRLR 807

: discrimination claims can be struck out – “Judges should not be shy of making robust decisions in a case where there is realistically only one possible outcome even if the issue is formally one of fact”.

g. Ahir v British Airways plc

[2017] EWCA Civ 1392

: If a case is so inherently implausible, it is legitimate for the tribunal to conclude that it had no reasonable prospect of success. “…where there is on the face of it a straightforward and well documented explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced.''

h. HM Prison Service v Dolby

(2003) IRLR 694

, EAT - Even if one or more of the five grounds in r 37(1) is made out, the tribunal must also consider whether to exercise their discretion or make an alternative order. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim or response (or part thereof), order the claim or response (or relevant part) to be amended, or order a deposit to be paid.

i. Hemdan v Ishmail [2017] EAT IRLR 228 – the purpose of a deposit order 'is to identify at an early stage claims with little prospect of success and PHCM Order (NEW August 2020) 8 of 11 August 2020 to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails.'

j. Sami v Avellan; Sami v Nanoavionics UK Ltd

[2022] EAT 72

: There is a need for care when making a deposit order, particularly where core facts are in dispute.

k. Van Rensburg v Royal Borough of Kingston-upon-Thames

UKEAT/0095/07

, [2007] - When determining whether to make a deposit order, a tribunal is not restricted to a consideration of purely legal issues but is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case, and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. There must be a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response.

l. Sharma v New College Nottingham

UKEAT/0287/11

– a tribunal must consider Anyanwu v South Bank Student Union

[2001] UKHL 14

, [2001] 'discrimination issues…should, as a general rule, be decided only after hearing the evidence.' Only in the clearest of cases will it be apt to order a deposit or strike out order. If there is a core factual dispute, it should properly be resolved at a hearing. Conclusions on the evidence at the law

[36]The 1st and 3rd respondents case is that the evidence is “totally and inexplicably inconsistent” with the pleaded claim. The claimant argues that there is contested evidence, that the culture within the organisation was toxic and racist, that she was forced to go along with ‘banter’ because of her position of vulnerability. The claimant did not explicitly mention race in her complaint in November/December 2019, but she says that she is the only Chinese member of staff, that colleagues never experienced this treatment. The claimant says she can rely on witness evidence of poor treatment.

[37]I concluded that the documentary evidence does not overwhelmingly show there is an inconsistency between the claimant’s case and the evidence. The evidence shows that Mr Tripathi readily engaged in issues of race, specifically about China and Chinese people – note the coronavirus texts, the reference to Chinese people on a bus. Answers provided by Mr Cameron – if accurate – suggest that the claimant was concerned about issues of race constantly being raised, but he considered that Mr Tripathi and Mr Hall “just wouldn’t take it seriously”.

[38]There is therefore sufficient inconsistency between what the claimant alleges and what the respondents say occurred, which will need to be tested in evidence. Taking each issue in turn: Allegation 1: PHCM Order (NEW August 2020) 9 of 11 August 2020

[39]I note Mr Cameron’s reference to Mr Tripathi’s “violent temper” and “repeated inappropriate use of language” including “mimicking [C’s] accent” and criticising her. If this is accurate, it is not beyond the bounds of possibility that Mr Tripathi did lose his temper and deny the claimant leave when she asked to go to China. Allegation 2

[40]The allegation is one of toxic language, that the claimant was targeted. Mr Tripathi accepted there was a lot of swearing in the office but denied ever directing it at the claimant. But his direct answer in his submission was that the claimant was more racist “than I was”. This suggests that Mr Tripathi accepts that on occasion he may have engaged in some racist conduct.

[41]Also, considering Mr Cameron’s evidence, there is on the face of it (and talking the evidence at its highest) Mr Tripathi’s violent temper and targeting of the claimant. It is not fanciful to say the claimant may be able to show that she was talked to in this matter, that this conduct did occur. Allegation 3

[42]Mr Tripathi’s comments on this incident were confusing: on the one hand he denies criticising her, on the other he recalls asking her on another occasion whether he has disrespected her. This is no overwhelming evidence that this incident did not occur, there will be contested witness evidence on this issue. Again, considering Mr Cameron’s view of Mr Tripathi’s temper, it is not possible to say that it has no reasonable or little reasonable prospects of success. Allegation 4

[43]On whether the claimant asked to attend her grandfather’s funeral and if she did why she was not able to attend is a question of fact. Mr Tripathi denies knowing of the date of the funeral or of the date of the presentation, again these will be issues of fact which need to be tested at a hearing. Allegation 5

[44]C says that there was a video of her begging for her phone back; also a named client was present. And C’s case is he would not do so but for the power imbalance, being of Chinese origin and a Chinese national. R3 denies this incident occurred. Again, this is a contested issue of fact and I cannot concluded that this allegation claim has no or little reasonable prospects of success. Allegation 6

[45]The Malta trip: I note emails in the supplemental bundle in which Mr Tripathi is asking if C “take line manager approval” before a training event, C responds saying she is upset and can he call her. This is not indicative of Mr Tripathi’s view that they are not communicating at this time, that this was not for him to PHCM Order (NEW August 2020) 10 of 11 August 2020 authorise. It also suggests that he had an issue with this training and the tone of his response “… please answer what I asked!” suggests frustration on his part. Given Mr Cameron’s comments about Mr Tripathi’s temper, I cannot discount the claimant’s version of events as fanciful: this is a contested issue which must be determined by the evidence. Allegation 7

[46]The Christmas party – C clearly wanted to attend, the question is why did she not? She says it’s because of Mr Tripathi’s attitude towards her, based on her race, he refused to allow her to go. Mr Tripathi’s evidence will be that her nonattendance had nothing to do with him.

[47]Again, this will be an issue of contested evidence and I cannot say that this claim has no reasonable or little reasonable prospects of success. Allegation 8

[48]Mr Tripathi denies using racist language, saying instead it was the claimant who did so. He also denies interacting with the claimant after January 2020, considering her weird, but accepts he included her in group messages in March 2020 when they were sitting in a bar; both were derogatory about China and Chinese people. Why did Mr Tripathi feel the need to send these messages?

[49]In addition, Mr Cameron’s view that the claimant did raise issues of racism in the workplace which were brushed off; the way he says she was criticised and her accept mimicked.

[50]These are all questions which need to be explored in evidence. Again, it can’t be said that this claim has, on the face of it, no or little reasonable prospects of success. E J - Emery 22 August 2023 22/08/2023 PHCM Order (NEW August 2020) 11 of 11 August 2020

Procedure

[51]From April 2020 until the end of the furlough schemes in September 2021, HCL through the claimant claimed 80% (and then less) of her wages under the Coronavirus Job Retention Scheme. Under the Scheme, employers could claim 80% (and later less) of the wages of their employees who they had put on furlough.

[52]The claimant appears to regard herself as no longer employed. We asked her how her employment had come to an end. She said it came to an end in November 2021. She regarded herself as no longer employed from that point. She had discussed the matter with the accountant.

[53]The claimant did not explicitly resign, either orally or in writing.

[54]The claimant was not clear in her evidence as to why she considered her employment had ended, but as far as we could tell, this was because the furlough money had ceased and HCL was insolvent. Bearing in mind her contention in this case that she was employed by Heliocor, we note that she did not say anything about Heliocor in relation to the termination of her employment. She did not suggest she was either still employed by Heliocor or that it had ended at this point or indeed any other point. General office atmosphere

[55]During the secretly taped March 2020 meeting, Mr Hall commented that Mr Tripathi had created a ‘culture of fear’ in the last year. He said the claimant had been in an environment that was actually quite abusive, but to their credit, she, Mr Kumar and Ms Hunter had all come out of that abuse. Mr Hall tried to play that down in his oral evidence. He told the tribunal that the - 12 - atmosphere in the office was generally quite friendly, open and jovial. He said he would not find a negative environment productive, so he would not let that occur. However, he did say Mr Tripathi was hard on everyone in the office and aggressive in terms of how he wanted things to be done across the board. He felt on reflection that the pressure of work caused Mr Tripathi to have a mental breakdown at some point in 2019.

[56]Ms Hunter told the tribunal that Mr Tripathi was hard-going and very corporate. If he felt people were not pulling their weight, he would often clash heads. He clashed heads with her a lot and he certainly made her upset. They had arguments and they had ups and downs. He was tougher than she would like to have worked with, and she did not have a nice relationship with him at times. On the other hand, he was professional in the sense that if she needed him to help her with the work, he always would. Mr Cameron said it was a bullying environment and that he felt intimidated himself sometimes.

[57]What we find most persuasive is what Mr Hall said to the claimant in March 2020 about an abusive environment, when he was unaware that he was being taped. Mr Hall said that he was simply using the tactic of appeasing the person he was speaking to in order to make them receptive to the message and proposal he wanted to deliver, in this case, regarding taking over the company. We do not find that convincing. What he said went beyond that.

[58]Mr Hall took over the claimant’s management in October/November 2019 because he could see increasing tension in the relationship between Mr Tripathi and the claimant. This was because Mr Tripathi was feeling more stress as the business was not doing well, and because, as part of that, the claimant was not delivering. Mr Tripathi stopped going into the office from about November/December and gradually stopped communicating with the claimant. The office was closed from about December / January 2020 because Heliocor had stopped paying the rent.

[59]We were shown hundreds of pages of WhatsApp messages between Mr Tripathi and the claimant. They sent many WhatsApps to each other each day. From these, it appears the relationship was generally chatty and jokey. Mr Tripathi treated colleagues with whom he worked closely, including the claimant, as family. The claimant accepts there were many times when their relationship was good. For example, in July 2019, the claimant asked him to drop her home after a medical appointment. However, that did not stop him from being aggressive if he was unhappy about work matters. As we have said, Mr Tripathi had an aggressive management style which he directed towards everyone if tasks were not done to his satisfaction, and this became worse towards the end of 2019 when the stress of the business doing badly overwhelmed him.

[60]We have made our fact-findings in relation to the specific allegations in our Conclusions section. - 13 - Law Who was the claimant’s employer?

Law

[61]In employment law, the written contract of employment does not always accurately reflect the terms agreed. The true agreement often has to be gleaned from all the circumstances of the case, of which the written agreement is only part. (Autoclenz Ltd v Belcher

[2011] IRLR 820

, SC.) Moreover, were the corporate structure of an employer comprises more than one entity, the question as to who is the employer might not be straightforward. The EAT recently summarised the principles governing the identification of an employer in Clark v Harney Westwood & Riegels

[2021] IRLR 528

as follows: ‘The following principles are relevant to the issue of identifying whether a person, A, is employed by B or C:a. Where the only relevant material to be considered is documentary, the question as to whether A is employed by B or C is a question of law: Clifford at [7].

b. However, where (as is likely to be the case in most disputes) there is a mixture of documents and facts to consider, the question is a mixed question of law and fact. This will require a consideration of all the rel evant evidence: Clifford at [7].

c. Any written agreement drawn up at the inception of the relationship will be the starting point of any analysis of the question. The Tribunal will need to inquire whether that agreement truly reflects the intentions of the parties: Bearman at [22], Autoclenz at [35].

d. If the written agreement reflecting the true intentions of the parties points to B as the employer, then any assertion that C was the employer will require consideration of whether there was a change from B to C at any point, and if so how: Bearman at [22]. Was there, for example, a novation of the agreement resulting in C (or C and B) becoming the employer?

e. In determining whether B or C was the employer, it may be relevant to consider whether the parties seamlessly and consistently acted throughout the relationship as if the employer was B and not C, as this could amount to evidence of what was initially agreed: Dynasystems at [35]. To that list, I would add this: documents created separately from the written agreement without A’s knowledge and which purport to show that B rather than C is the employer, should be viewed with caution. The primacy of the written agreement, entered into by the parties, would be seriously undermined if hidden or undisclosed material could readily be regarded as evidence of a different intention than that reflected in the agreement. It would be a rare case where a document about which a party has no knowledge could contain persuasive evidence of the intention of that party. Attaching weight to a document drawn up solely by one party without the other’s knowledge or agreement could risk concentrating too much weight on the private intentions of that party at the expense of discerning what was actually agreed.’ - 14 -

[62]There have been a few cases regarding whether it is possible to be employed by two employers at once for the same work, most recently Patel v Specsavers Optical Group Ltd (UKEAT/02086/18), and Fire Brigades Union v Embery

[2023] IRLR 525

, the EAT Section 41

[63]It can be discrimination under the Equality Act 2020 if a ‘principal’ discriminates against or harasses a contract worker. Under section 41(5) a ‘principal’ is a person who makes work available for an individual who is(a) employed by another person and

(b) supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it).

[64]There is no requirement that the employer is party to the supply contract with the principal, although that will often be the case. However, there does need to be a supply contract which the principal is party to.

[65]Under s13(1) of the Equality Act 2010 read with s9, direct discrimination takes place where a person treats the claimant less favourably because of race than that person treats or would treat others. Under s23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.

[66]In order for a disadvantage to qualify as a “detriment”, the tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. The test must be applied by considering the issue from the point of view of the victim. If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought to suffice. While an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute “detriment”, a justified and reasonable sense of grievance about the decision may well do so. (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

;

[2003] IRLR 285

) Harassment

[67]Under s26, EqA 2010, a person harasses the claimant if he or she engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of(i) violating the claimant’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In deciding whether conduct has such an effect, each of the following must be taken into account: (a) the claimant’s perception; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect. - 15 -

[68]By virtue of s212, conduct which amounts to harassment cannot also be direct discrimination under s13.

[69]In Richmond Pharmacology Ltd v Dhaliwal

[2009] IRLR 336

, EAT, Mr Justice Underhill (as he then was) gave this guidance: ‘an employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so……..Not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers and tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other discriminatory grounds) it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’ Burden of proof under Equality Act 2010

[70]Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision..

[71]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

. Once the burden of proof has shifted, it is then for the respondents to prove that they did not commit the act of discrimination. To discharge that burden it is necessary for the respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.

[72]The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board

[2012] IRLR 870

, SC.) Unauthorised deductions from wages

[73]The right not have unauthorised deductions from one’s wages is set out in part II of the Employment Rights Act 1996. Section 13 is the primary right and - 16 - s14 sets out exceptions where s13 does not apply. Under s14(1)(b), s13 does not apply where the purpose of the deduction is in respect of expenses incurred by the worker in carrying out his or her employment. Conclusions Employment status: issues 1.1 – 1.4

Conclusions

[74]The claimant conceded that she was employed by HCL but says that was a sham or alternatively that she was at the same time an employee of worker of Heliocor. None of the parties presented any more developed legal argument on this. We did not simply rely on the claimant’s concession. We examined the facts.

[75]We find that the claimant was employed by HCL, and not by Heliocor, both for the purposes of the Employment Rights Act 1996 and the Equality Act 2010.

[76]We are aware that the written contract of employment does not necessarily reflect the true intentions of the parties at the start of the employment. However, in this case, there was considerable evidence for our conclusion that it did reflect their intention.

[77]The contract of employment was made with HCL. The claimant’s job title was Director of Partnerships at HCL. She was paid out of the HCL bank account and on HCL payslips. PAYE and national insurance were deducted. Although her pay was increasingly funded by transfers from the parent company, Heliocor, when HCL ran out of funds, this is not unusual in our experience in a Group situation when a subsidiary runs out of funds: it is not inconsistent with HCL being the employer.

[78]The claimant’s mortgage application letter on 2 December 2019 was on HCL headed paper and described her as an employee of HCL. From April 2020 until the end of the furlough schemes in September 2021 the claimant completed on behalf of HCL a furlough application in respect of herself as an HCL employee. When that ran out, she considered herself no longer employed because HCL was insolvent. She did not say anything to the tribunal about continuing to be employed by Heliocor or about her employment also having ended with Heliocor. Heliocor, although in financial difficulty, was not insolvent at that time.

[79]We note that the claimant used an email domain owned by Heliocor and that her business card said Heliocor not HCL, and that the Heliocor logo was on the card and letterheads. Again, in our experience this is not unusual in a Group situation. Groups often adopt a common brand and logo, and share the email domain of the parent company. It does not particularly indicate to us that the claimant was employed as an employee or worker by Heliocor. - 17 -

[80]We also note that photos and videos of the claimant appeared on Heliocor’s social media site. Heliocor did not have a separate site. Given that the Group companies were working closely together on projects, it makes sense that they shared the same social media presence. A joint social media presence would build traction more than unnecessary separate sources. We do not think this signifies that the claimant was necessarily employed by Heliocor.

[81]We do not draw any significance from the fact that HCL and Heliocor shared the same office. That is not unusual with small companies in a small Group.

[82]Regarding line management, the ultimate authority and effective line manager for the claimant was Mr Hall. Mr Hall was CEO of HCL as well as Heliocor. Basically, he controlled the Group. The claimant did take direction from Mr Tripathi on a day-to-day basis because she was focusing on projects in his arena and working jointly with him. This could be a factor which helps suggest the claimant was employed by Heliocor, but equally, it is not inconsistent with her being employed exclusively by HCL. As we have said, Mr Hall was the ultimate authority. Mr Tripathi, though not employed by or a Director of HCL, was Director / Managing Director of Heliocor which owned 80% of HCL. It was always envisaged that they would work closely together on projects.

[83]The claimant argues that the work she did was for Heliocor and that she carried out the same duties as Mr Kumar and Ms Hunter. They did not carry out the same duties, but everyone closely collaborated, bringing their different skills to the Helio project. Ms Hunter had Compliance experience and Mr Kumar had IT experience, both of which Heliocor required, but the claimant had neither. We accept that the fact that the claimant was working on the Heliocor project under the direction of the Heliocor Sales Manager could in some circumstances be factors which point towards the claimant being employed by Heliocor. However, they are not inconsistent with her being employed by HCL in a tight Group of small related companies who hold an overarching joint aim of developing and marketing a new product with a sales and consulting support structure.

[84]The claimant argues that HCL was simply a vehicle or conduit for taking her investment. We do not think that is true. HCL had been set up over a year before the claimant was introduced to Mr Hall and Mr Tripathi. There was a reason it was set up, ie to protect Heliocor’s IP on software products. It had signed consultancy contracts with CapGemini and Experis. When it stopped making money during 2019, Heliocor regularly transferred funds to pay wages and outgoings, until Heliocor itself got into financial trouble.

[85]Overall, we find the evidence that the claimant was employed by HCL far stronger than the evidence which might have suggested she was employed by Heliocor. The intention of the parties at the outset was that she be employed by HCL alone. The parties consistently acted as if HCL was the employer. The claimant consistently acted as if that were the case from start - 18 - (her contract of employment), throughout (her mortgage application; her furlough application); to finish (her view about the termination of her employment). We see no need to imply any contractual relationship between the claimant and Heliocor to explain her work for the new Crypto project under the direction of Mr Tripathi. The claimant’s contract said she must undertake duties as may be determined by HCL from time-to-time and her duties were using her Crypto knowledge and contacts to help fundraise and market on the new Group project. Employment status: issues 1.5: section 41

[86]When going through the List of Issues at the outset, before we had heard the facts of the case, we asked whether the claimant was making a section 41 contract worker argument. She said she was not. Nevertheless, bearing in mind that she was a litigant-in-person, we said we would add it to the List of Issues.

[87]In advance of the parties’ final summing up, we invited the parties to address section 41. Neither the claimant nor Mr Hall did so. Mr Tripathi very generally alluded to it in his written closing submissions.

[88]We attempted to consider section 41 in any event, although we had no arguments to work with. In our view, it did not apply. We do not consider that Heliocor made work available for the claimant. The claimant was carrying out HCL work in collaboration with Heliocor. Nor do we find that the claimant was supplied by HCL in furtherance of a contract to which Heliocor was a party. We could not identify any such contract, express or implied. Unauthorised deductions claim against 1st respondent: Issues 1.15 – 1.18

[89]It is agreed that the wages were unpaid. The deductions were made by HCL who employed the claimant. They were not made by Heliocor because it did not employ the claimant. The claim against the 1st respondent (Heliocor) for unauthorised deductions of wages therefore fails.

[90]The expenses are owed by HCL and not by Heliocor for the same reason. However, the claim for expenses also fails because unauthorised deductions claims cannot be made for reimbursement of expenses. Time-limits on pay deductions claim: issue 1.7

[91]This point is academic. However, the claim was made in time. ACAS was notified on 24 March 2020. This would mean wages due from 25 December 2019 onwards were directly in time, and in any event, this was a series of deductions. Direct race discrimination and harassment: issues 1.8 – 1.14

[92]Because of our finding regarding the claimant’s employment status, she is unable to bring her race discrimination and harassment claims. - 19 -

[93]However, we have in any event gone on to consider whether discrimination / harassment took place. We first looked at each incident separately and we then looked at the incidents as a whole to see whether we still had the same opinion. Allegation I.8.1: On or around March 2019, when asking to visit her sick grandfather, Mr Tripathi shouted at the claimant and used words such as, ‘You are an asshole, you are just a piece of tool to me. If you don't come back with me your plane will crash, you will die on the journey’.

[94]The claimant and Mr Tripathi were going on a business trip to China in April 2019. On 28 March 2019, the claimant asked to return a few days later to take advantage of the Bank Holiday in the UK. She said she wanted to spend time with her parents. She did not at that point say anything about her Grandfather being ill. We can see from the WhatsApp messages, that she had mentioned in passing on 6 January 2019 that her Grandfather was not well. She did not link it to a request to go to China. Then on 28 March 2019, there was a WhatsApp exchange at 8.40 am where Mr Tripathi begrudgingly agreed to the claimant staying a few more days. He tried to persuade her to come back with him, saying her plane would crash and challenging why one more day with her parents would make any difference. But he also said, ‘Do it Elly. You are so irritating’ and ‘I just said. Do whatever you like’. There was then a 40 minute gap in the Whats Apps during which the argument continued orally and the claimant ended up in tears. The WhatsApps resumed at 9.26 am with Mr Tripathi telling the claimant not to let her crying become office gossip. He said he would get her onto a plane on the 19th, which is what she wanted. He then spent £200 of his own money changing the flight arrangement.

[95]We accept the claimant’s evidence that during this oral argument, Mr Tripathi said that she was an asshole. There is use of the word ‘asshole’ in the WhatsApps by the claimant in particular, but also by Mr Tripathi. The claimant had commented for example that ‘every businessman is an asshole’. We do not think Mr Tripathi also said ‘You are a piece of tool to me’. We do not see him using that language in the WhatsApps.

[96]We do not think the row was quite as bad as it sounds. Looking at the language generally used in the WhatsApps by both parties and looking at the WhatsApp messages before and after the 40 minute break, this appears to us as a normal squabble between the two. Their communication style was informal and friendly, rather like one might communicate with a family member or close friend. Mr Tripathi was peevish in the exchange. The claimant was crying because she wanted to spend the extra time with her parents and because Mr Tripathi was indicating he did not like the idea. - 20 -

[97]Looked at in itself – and we will consider the wider picture later – we see no evidence that Mr Tripathi approach and words were in any was because the claimant is of Chinese nationality or origin. He was a hard taskmaster generally with everyone. He wanted the claimant to come back with him and get on with her work. He was irritated at her request, but he also agreed it, and once she started crying, he paid for her flight booking to be rescheduled. There was no evidence he would have treated anyone who was not Chinese any differently. For these reasons, the claim for direct race discrimination would fail even if the claimant was eligible to bring such a claim. Race harassment

[98]Mr Tripathi’s conduct was unwanted, but for the reasons we have already given, it was not related to race. The claim for race-related harassment therefore would also fail even if the claimant was eligible to make such a claim. Allegation 1.8.2: On or around June 2019, Mr Tripathi said to the claimant when she was late for a meeting, ‘Fuck you’ and ‘Shame on you’.

[99]Although the evidence around this was extremely vague, we accept the claimant’s evidence that Mr Tripathi said ‘Fuck you’ and ‘Shame on you’ when she was late for a meeting in around June 2019. Mr Tripathi was a hard taskmaster when it came to work. He got angry easily. He could be aggressive. He used the word ‘fuck’ frequently in the WhatsApp messages, though we note that the claimant does so even more. They both frequently refer to third parties with a ‘fuck him’ or ‘fuck them’, sometimes descending into inuendo regarding the literal meaning of the word. We can therefore well imagine that Mr Tripathi spoke to the claimant in this way when she was late for a meeting.

[100]The language is unprofessional, and particularly unpleasant when directed at the claimant. However, given the liberal use of ‘fuck him’ by the claimant in the WhatsApps, it is not quite as shocking as it otherwise might be.

[101]We do not see any evidence that this incident was because of the claimant’s race. As we have said, Mr Tripathi was harsh with everyone when he was displeased. Moreover, it was the type of language which the claimant had herself frequently initiated albeit not directed at Mr Tripathi. The claim for direct race discrimination would therefore fail even if the claimant was eligible to make such a claim. - 21 -

[102]The conduct was unwanted, but for reasons already given, it was not related to race. The claim would also fail even if the claimant was eligible to make such a claim. Allegation 1.8.3: In or around June 2019, Mr Tripathi requested all employees come to work no more than one minute late. One day he came late and the claimant talked to her colleague Mohit Kumar in a very low voice and said ‘Vikas is late’. He later forced her to go into the small room and forced her to tell him what she had been discussing with Mohit. She refused to tell him, he told her, ‘I'm telling you to tell me, just tell me’. Then she had to tell Mr Tripathi what she was discussing with Mohit. He then abused her with comments such as ‘None of your fucking business’, told her to follow his orders and say ‘yes sir’ to him.

[103]For similar reasons to the previous allegation, we find on the balance of probabilities that Mr Tripathi did haul the claimant into a side room to ask what she was whispering about and that he did tell her it was none of her fucking business and to follow his orders and say ‘yes, sir’ when she told him. We believe this because Mr Tripathi was the type of person at work who was likely to get angry about people whispering about him, and the WhatsApp texts showed that he did use the word ‘fuck / fucking’ aggressively on occasions.

[104]We do not see any evidence that this incident was because of the claimant’s race. Mr Tripathi was regularly harsh and unpleasant with others as we have said. The direct race discrimination claim would therefore fail even if the claimant was eligible to make such a claim.

[105]The conduct was unwanted. However, for the same reason, it was not related to race. Even if the claimant was eligible to make such a claim, it would fail. Allegation 1.8.4: The claimant's grandfather passed away in June 2019, which occurred while she was on a business trip to Shenzhen. Mr Tripathi forced her to attend a business meeting instead of attending her grandfather’s funeral. Therefore she had to miss her grandfather’s funeral. He recorded her business presentation on that day and he criticised her on the basis that she didn't perform and verbally threatened her and abused her again.

[106]The claimant’s grandfather passed away when she was on another business trip to China with Mr Tripathi in June 2019. On 22 June 2019, the - 22 - claimant sent Mr Tripathi a WhatsApp at 4 am to say her Grandfather had passed away that morning. Mr Tripathi responded sympathetically. He said he was happy he had persuaded the claimant to go early to China. The funeral was in Shanghai on 24 June 2019. The claimant was unable to attend because she was in a pre-arranged business meeting in Shenzhen.

[107]The claimant says that Mr Tripathi refused to allow her to attend the funeral. Mr Tripathi says she never mentioned the funeral to him. The claimant clearly feels very strongly about the fact that she did not attend the funeral and, looking back, she is upset about it. However, we find that she did not tell Mr Tripathi about the funeral. These are our reasons.

[108]There are many WhatsApp messages from 22 June onwards. First of all, these show that Mr Tripathi was generally sympathetic and supportive. He had encouraged her to go early on the trip to visit her Grandfather. He was sensitive and sympathetic when she told him on 22 June 2019. It is hard to imagine that he would then have refused permission to attend the funeral.

[109]Even if it is conceivable that he would have refused because he was worried over her missing the presentation, there is no hint in any of the WhatsApps in the following days that something had happened which the claimant upset about. The claimant did not hold back on complaining about other matters in other WhatsApps, eg over extending the April 2019 trip to China. But on this occasion, she not only did not say anything at all about the funeral, but her communications were normal and friendly. On 26 June 2019, she even suggested that Mr Tripathi get cake at the airport from Lady M.

[110]Also, there is no reliable evidence regarding when she asked Mr Tripathi to go to the funeral. As we have said, it is not mentioned in the WhatsApps. The claimant says she asked in a WeChat conversation on the afternoon of 23 June 2019 (WeChat being more stable when they were both in China). However, Mr Tripathi produced air tickets which showed he was in the air all day on 23 June, before arriving in Hong Kong at 10 pm. He messaged his arrival to the claimant on WhatsApp and immediately took a 2 hour train to China. At 22.17, the claimant WhatsAppd Mr Tripathi to say she was at the airport (to Shenzhen).

[111]When Mr Tripathi mentioned his tickets in the tribunal, the claimant said she may have got the dates and times wrong. We did not find this convincing.

[112]Regarding the other part of the incident, we accept that Mr Tripathi was angry with the claimant and criticised her business presentation, threatening to send photos that she had fallen asleep to Mr Hall. The claimant admits she fell asleep. Knowing Mr Tripathi, we find that he did criticise her performance, because she had fallen asleep and that is the way he behaves over work matters he does not like. - 23 -

[113]However, we do not believe this was because of the claimant’s race. It was because Mr Tripathi was an aggressive and harsh taskmaster about work. She fell asleep. He saw it. He said something. That is how he operates. So even if the claimant was eligible to make this claim, we would not have upheld it.

[114]Mr Tripathi reacting angrily to the claimant falling asleep was unwanted conduct. For reasons given, it was nothing to do with her race. The claim for race-related harassment therefore would fail even if the claimant was eligible to make such a claim. Allegation 1.8.5: Mr Tripathi took the claimant's mobile phone (on 4 October 2019) and then her USB (around October 2019 and handed back around December 2019) without her permission and kept them with him. He took her mobile phone with him and forced her to beg him to return it. This happened in front of her previous colleagues Roisin Hunter, Mohit Kumar and Heliocor Ltd investor Roger Sharma. He also recorded a video about her pleading with him to give back the phone. He returned the phone to her later the same day on 4 October 2019.

[115]We heard no oral evidence about the USB stick. Regarding the mobile phone, Mr Tripathi denies the whole incident. However, we find that he did take the claimant’s mobile phone at the Mehfil restaurant and he kept it for 15 – 20 minutes while filming the claimant pleading to have it back. Mainly we believe this because of Mr Sharma’s evidence who we found a straight forward witness, who did not exaggerate, and was happy to admit he was angry that he had lost a large investment with the company. Mr Tripathi, while cross-examining him, said he believed Mr Sharma more than anyone else and if Mr Sharma said Mr Tripathi had videoed the event, then Mr Tripathi believed him.

[116]We suspect that Mr Tripathi was winding the claimant up in much the same way that she would wind him up. He possibly did not realise how upset she was getting. The claimant used to take and play with Mr Tripathi’s items, eg his iPad and his watch. The mobile incident happened at a relaxed event after the claimant had just sung a song in Chinese.

[117]We do not see anything in this incident that could suggest it was because of the claimant’s race. It was more a reflection of their close working relationship and mutual teasing which we see in the WhatsApps. We would not find this was direct race discrimination. - 24 -

[118]This was unwanted conduct but for the same reasons, we find it was not related to race. We therefore would not find race-related harassment. Allegation 1.8.6: On 6 November 2019, the claimant applied for a business trip with Owen Hall and received permission to go to Malta. Since Mr Tripathi was not in the UK and she was mentally abused by him for a long time therefore she was not able to communicate with him. She didn't update Mr Tripathi of her schedule and later when he came back to London, he called her into the small room and abused her verbally for an hour and forced her to write an e-mail and apologise to him.

[119]We accept the claimant’s evidence that when he discovered she had gone to Malta without consulting him, Mr Tripathi called her into a small room and abused her verbally for an hour and forced her to write an e-mail and apologise to him. Mr Tripathi admitted to the tribunal that he was ‘furious’ because he had given the claimant tasks which she had not completed. Mr Tripathi was not a person who held back when he was angry and we can well envisage him doing this.

[120]We do not see any evidence that Mr Tripathi’s behaviour was because of the claimant’s race. As we have said many times, Mr Tripathi was aggressive with everyone when he did not like the way things were done at work. By November 2019, Heliocor and HCL were in serious trouble financially and Mr Tripathi was very stressed. The claimant was not achieving what had been hoped. It was nothing to do with the claimant being Chinese. The claim for direct race discrimination would therefore fail.

[121]This was unwanted conduct but it was not related to the claimant’s race for reasons already stated. The race-related harassment claim would therefore fail. Allegation 1.8.7: Before the 2019 company Christmas party, to stop her from attending the party at Barcelona, Mr Tripathi lied on behalf of the claimant to company CEO Owen Hall. He said that, because her colleague Mohit Kumar does not have a visa to go come out she therefore also didn't want to go. She never said this to him. The truth was discovered after Owen Hall mentioned it in the office and she also asked him in front of other colleagues, ‘Why did you say this?’ He texted her later and said, ‘Don't shout’. This was seen and witnessed by other colleagues. - 25 -

[122]We accept Mr Hall’s evidence that the claimant was invited to the event, that they had bought the claimant a ticket and that she had told him she could not go. We believe this because it would be out of character for Mr Hall to have left her out. Mr Hall denies that Mr Tripathi told him the claimant did not want to go. It strikes us that there was some form of misunderstanding which led to the claimant raising her voice in the office and Mr Tripathi texting, ‘Please don’t raise your voice’. We accept Mr Hall’s evidence that Mr Tripathi did not tell him the claimant did not want to go or that her reason was anything to do with Mr Kumar’s visa.

[123]We would not find that it was direct race discrimination to tell the claimant in a WhatsApp to please not raise her voice, if she had been raising her voice in the office over the matter. We add that even if we thought Mr Tripathi had deliberately tried to stop her going to the Christmas party, which seems most unlikely and different from the other kinds of complaint about him, we would not believe it was because of race. This kind of allegation suggests Mr Tripathi would have acted out of hostility and we did not identify in any of the WhatsApp messages genuine hostility towards the claimant because she is Chinese. If Mr Tripathi was feeling hostile towards the claimant, it was because by this time their relationship had broken down under the work stresses.

[124]For the same reasons, we would also not find it was conduct related to race. Allegation 1.8.8: On or around March 2020 Mr Tripathi made overtly racist comments about people who are ethnically Chinese and their characteristics and appearance using the words ‘Chinese are thieves, they steal everything. Indians will beat up the Chinese. Chinese have small eyes, China is going to kill all the Covid patients, what a stupid country it is'.

[125]The claimant has clarified that she was talking specifically about an incident on pancake day in February 2020 when they all went out to a pancake restaurant in Holborn.

[126]Apart from the pancake outing, the claimant and Mr Tripathi were not communicating by February and March 2020, so the alleged comments could only have taken place at that outing, as indeed the claimant alleges. Mr Tripathi denies the comments.

[127]In about February 2020, Mr Tripathi forwarded an article suggesting China was seeking court approval to kill over 20,000 coronavirus patients to avoid spread of the virus. (We should say that this story was later identified as a - 26 - hoax.) Mr Tripathi forwarded the story to the office WhatsApp group with a comment ‘This is what China is?’. The claimant, who was the only Chinese person in the WhatsApp group, replied, ‘Impossible’.

[128]Also, as stated in the next allegation, on 22 March 2020, Mr Tripathi sent the group chat a WhatsApp about the ‘Italy-Wuhan’ connection.

[129]In the WhatsApps while the claimant and Mr Tripathi were still engaging in a friendly way, they did regularly chat in a mutually joking and sometimes flirtatious way about the relative merits of Chinese and Indian food, beautiful women, traffic jams etc. They teased each other. There is no evidence whatsoever that either of them took genuine offence about the teasing. On the contrary, there were smiling emojis and ‘Hahahahs’. Much of the time, the claimant initiated this type of conversation.

[130]They were in the habit of sending each other photos and articles on various matters and joking. In March 2019, Mr Tripathi found himself on a bus with a Chinese delegation . He sent the claimant a photo, commenting ‘so many Chinese people’. The claimant responded ‘LoL’, then she added ‘Don’t be racist’, Mr Tripathi asked how it was racist. She replied she could smell his tone. He answered ‘You can feel and smell whatever you want Miss Zhang’ She replied ‘Hahahaha’. Then in turn she sent him a photo of a fat Chinese boy, and they started joking about that.

[131]They also had discussion about news events, for example in March 2019 Mr Tripathi asked the claimant why China was being stupid and protecting a global terrorist. The claimant in turn talked about India protecting the Dalai Lama. It was a serious but friendly discussion. The claimant said she was a nationalist just like Mr Tripathi. She said China was the best country in the world. Mr Tripathi said neither India nor China were the best country in the world. The conversation then moved straight into gossip. There was no sign of any real upset on either side.

[132]In December 2018, Mr Hall and Mr Tripathi were attending a conference in St Kitts and Nevis. The claimant was in charge of social media for the event. She put the wrong location. She asked Mr Tripathi, ‘Is not west indie in Dominic??’ Mr Tripathi commented, ‘U need to improve your geography beyond mainland China’. We do not find this was a discriminatory remark. It was factual. The claimant knew the geography of China.

[133]We cannot go through every single reference to India and China in the WhatsApp chat, but discussing India and China is not in itself racist. What we saw in the WhatsApp was not the same kind of comment as ‘Chinese are thieves, they steal everything. Indians will beat up the Chinese. Chinese have small eyes’. Indeed, the person who was talking about Chinese eyes in the WhatsApp records was the claimant, who talked on a few occasions about getting cosmetic eye surgery. We therefore find that Mr Tripathi did not make these comments in the pancake restaurant or during February/March 2020 at any other time. - 27 -

[134]He did forward the tweet with the comment, ‘This is what China is?’ This was not directed at the claimant. At that time, there were unique circumstances. It was the run up to the lock down. Everyone was talking about Covid and very anxious. The fact is that the virus was coming out of China and unprecedented and extreme things were being reported which no one knew what to make of.

[135]We will discuss this further together with the final allegation as to whether it would be direct race discrimination or race-related harassment. Allegation 1.8.9: On or around 22 March 2020 Mr Tripathi made fun of the claimant’s Chinese background and criticised her race by sending a WhatsApp message. It is common ground that Mr Tripathi sent a WhatsApp message on 22 March 2020 to a group chat that the claimant was a party to. The WhatsApp message was titled, ‘The Italy – Wuhan Connection’ and was regarding Coronavirus. The respondent says it was a factual message, explaining why Coronavirus, which was becoming prevalent at the time, which originated in China, had caused a widespread outbreak in countries like Italy.

[136]Again, Mr Tripathi forwarded a newspaper article to the work WhatsApp group. Again, we do not find it was targeted at the claimant. He was sending it to the whole WhatsApp work group. As we say, at that time, Covid was a general topic of conversation. The entire public was reading newspapers, social media and talking about the virus and whether it would reach the UK from China.

[137]In both cases, ie forwarding both articles to the WhatsApp group as in allegation 8 and 9, together with the comment attached in allegation 8, we do not think this would be direct race discrimination. We do not consider it to be less favourable treatment of the claimant because of race, simply by virtue of referring to China being the origin of the Wuhan virus or talking about the reported policy of the Chinese government. There is no reason to think that Mr Tripathi would not have forwarded those messages with that comment whether or not the claimant was in the group.

[138]The sending of the articles to the WhatsApp group of which the claimant with the comment ‘This is what China is?’ on the first, was unwanted conduct. Was this unwanted conduct related to race? We do not think the mention of China as a country and the government’s apparent policy makes it ‘related to race’. Regarding the Italy / Wuhan WhatsApp, we do not think that the reference to the Chinese population and ‘hug a Chinese’ campaign in the body of the article is sufficient to make Mr Tripathi’s conduct in circulating it ‘related to race’. He was circulating an article about a virus and a - 28 - geographical location, and the mention of Chinese people carrying the virus was ancillary to that.

[139]Even if we are wrong on that, we do not think that Mr Tripathi’s intention was to violate the claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. Much of the population was talking anxiously about the virus all the time.

[140]We thought carefully about whether it had the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading or humiliating environment for the claimant. We understand why the claimant was distressed. It must have been uncomfortable for a Chinese person living in the UK at that time. As Managing Director, Mr Tripathi could have been more sensitive, and some people might have been more careful. Nevertheless, given all the circumstances, we do not think it was reasonable for the claimant to feel her dignity was violated by either or both these tweets or that such an environment was created for her by the conduct. The claimant must have been aware of the general discussion about the virus, its origin and how to prevent transmission, and that it was a matter of widespread concern which people would naturally discuss whatever their national or ethnic origin. Totality of allegations of direct race discrimination / harassment

[141]For the above reasons, we would not have found any of the indicts to be direct race discrimination or race-related harassment. We have also considered all the allegations together and whether they jointly amounted to direct race discrimination or race-related harassment. We find they do not. Mr Tripathi had a harsh and aggressive response when work was not to his satisfaction. He created a ‘culture of fear’ which Mr Hall perceived affected Mr Kumar and Ms Hunter (neither of whom were Chinese) as well as the claimant. Ms Hunter had numerous ups and downs and was often upset by his manner. The claimant worked closely with him so received the brunt of any dissatisfaction and when tension increased because the business was failing and the claimant not delivering to his satisfaction, Mr Tripathi became even more impatient and aggressive. The nature of the WhatsApp messages, though frequently referring to India this and China that, did not suggest any less favourable treatment or harassment of the claimant because she was Chinese. The two WhatsApp retweets of newspaper articles at the end were the result of the unique circumstances of a worldwide virus which had in fact originated in China. Time-limits on discrimination / harassment claims under Equality Act - issue 1.6

[142]As we have not upheld the claims for direct race discrimination and racerelated harassment, it is not necessary for us to consider time-limits. - 29 -