Ms A Costantine v The Royal Embassy of Saudi Arabia (Cultural Bureau): 2201753/2018
EMPLOYMENT TRIBUNALS
Case No 2201753/2018
Between
Ms A CostantineClaimantThe Royal Embassy of Saudi Arabia (Cultural Bureau)Respondent
Before
Employment Judge BrownMs T Burton (instructed by Counsel) for claimantDate 12 May 2024
JUDGMENT
[1]The Claimant’s employment was not an exercise of sovereign authority. Throughout her employment, her job functions were not exercises of sovereign authority, but were ancillary and supportive administrative functions.[2]The Respondent therefore does not have the benefit of state immunity in relation to the Claimants’ European law claims, which can proceed to a Final Hearing.
REASONS
LIST OF ISSUES
[1]This Hearing was listed to determine all issues relating to state immunity in this case and the identity of the Claimant’s employer. 1 ph outcome jment and case mngmnt 1.5.14 version[2]At the start of the hearing, the Respondent agreed that that the name of the Respondent in these proceedings is correct. The employer was at all times The Royal Embassy of Saudi Arabia (Cultural Bureau).[3]By a claim form presented on 19 March 2018 the Claimant brought complaints of direct discrimination and harassment because of religion or belief against the Respondent. The ET1 also included claims for unfair dismissal and unlawful deductions from wages which have been withdrawn by the Claimant.[4]Essentially, the Claimant, a Catholic Christian, contends that she was employed in the Saudi Embassy Cultural Bureau from 18 January 2010. She says that she initially worked in the Administration Department until June 2016, after which she became Secretary of Cultural Affairs. She contends that, following the appointment of a new cultural attache, the Claimant was not given any further work from May 2017. The Claimant contends that she was transferred back to the Administration Department in September 2017 and was given notice of dismissal on 16 October 2017. The Claimant’s employment ended on 17 January 2018. The Claimant contends that, throughout her employment, she was subjected to insulting and derogatory comments about her Christian beliefs and that she was denied work and dismissed because of her Christian beliefs. She compares herself with her Muslim colleagues.[5]In its Response, the Respondent asserted state immunity in respect of the Claimant’s claims. Immunity Issues in this Case[6]There were three issues to be determined regarding state immunity:(i) Has the Respondent expressly submitted to jurisdiction?(ii) If not, does state immunity apply to the Claimant’s employment?(iii) Has the Claimant brought a personal injury claim?[7]The Respondent contends that the Claimant was a member of its administrative staff but that her functions were sufficiently close to the governmental functions of the mission so that her employment involved the exercise of an inherently sovereign or governmental act, and, accordingly, all her claims are barred by state immunity.
Findings of fact
[8]The Claimant, on the other hand, contends that state immunity does not apply to her employment and that, in any event, by its emails to the Tribunal of 9 April 2019 and 29 May 2019, the Respondent expressly submitted to the jurisdiction of the Tribunal in respect of the Claimant’s claims based on EU law (her discrimination and harassment claims).[9]She also says that, in any event, she brings a personal injury claim, which is not barred by state immunity. The Respondent says that the Claimant has not brought a personal injury claim and that, in any event, s5 State Immunity Act exception to state immunity only applies to claims for physical injury. 2 ph outcome jment and case mngmnt 1.5.14 version[10]At this Preliminary Hearing the Claimant gave evidence. For the Respondent, Dr Abdulbari Ali Y Al-Tamni, Head of Legal Affairs at the Cultural Bureaugave evidence. Both parties made submissions. I reserved my decision. Findings of Fact The Claimant’s Job Roles[11]The Respondent Cultural Bureau is part of the Ministry of Education of the Kingdom of Saudi Arabia and falls under the umbrella of the Royal Embassy of Saudi Arabia in the UK. In addition to the Cultural Attaché Office and Assistant Staffs and his Secretariats, the Cultural Bureau has several administrative departments including Administrative Affairs, Financial Affairs, Academic Affairs, Cultural Affairs and Social Affairs.[12]By Article 1 of her contract of employment, pages 70-71, Ms Costantine was employed to work in the Cultural Bureau as an 'administration affairs officer— No. 157'. The contract provided that her duties included to ’...Work as an administration affairs officer, or as needed', to include '...any other duties assigned to her', pp70-71.[13]The Claimant worked in the Respondent’s Administrative Affairs department, as a Post Room Clerk in its post room, from 18 January 2010 until 2016. On 6 June 2016 she moved to the Cultural Affairs department to work as secretary to the department manager, Dr Nassir. With effect from 26 September 2017 the Claimant returned to the administrative department as a Post Room clerk and worked there until her employment ended on 17 January 2018.[14]The Claimant was given job number '187' from 1 February 2012, with the job title “student coordinator for health affairs”, until the termination of her employment. However, it was agreed that she was given this job number because it attracted a higher salary and that, in fact, the Claimant continued to work as a Post Room clerk.[15]There was a significant dispute of fact between the parties as to the Claimant’s job functions in each of her roles.[16]Dr Abdulbari Ali Y Al-Tamni, Head Of Legal Affairs at the Cultural Bureau, gave evidence. He was appointed to his role on 6 January 2020 and did not work with the Claimant. He told me that his evidence was based on what he had been told and from the documents.[17]Dr Al-Tamni told me that, as a Post Room Clerk, the Claimant handled internal and external communications on behalf of the Cultural Bureau. He said that the Post Room clerks record and reference all post which arrives in the post room and dispatch it to the relevant department or person. Dr Al-Tamni told me that this necesarily involves reading and assessing the communications to determine where they need to be sent.[18]Dr Al-Tamni told me that the Cultural Bureau uses an electronic system called “Rasel” for the referencing, archiving and recording of all communications. He provided an example of a Rasel record, pp104-105. He said that, as a Post Room Clerk, the Claimant had general access to Rasel to perform her daily work. 3 ph outcome jment and case mngmnt 1.5.14 version[19]Dr Al-Tamni told me that the Claimant had four usernames for the Rasel system: (acostantine), (acostantineO), (acostantinel), (acostantine9) and that, through those usernames she had handled and processed a total of 52,306 electronic transactions.[20]Dr Al-Tamni told me that the Claimant handled communications from other Saudi Arabian government departments, ministries, embassies, universities, hospitals etc. He said that their content included personal and confidential data of Saudi citizens relating to Saudi students and their families, Saudi diplomats and their families, and the Saudi Royal family. He also said that the post room received highly sensitive documents and information relating to Saudi citizens, including the Saudi Royal family.[21]Dr Al-Tamni told me that, by making a search with the family name, first name, subject, or the Saudi ID number, all communications and information relating to that person or subject would appear on the screen including (but not limited to) passport details, Saudi ID details, qualifications, educational details, correspondences, medical reports, address, family members etc.[22]It was agreed between the parties that the Claimant had been involved in the organization of the Respondent’s Career Day and Graduation Ceremony in at least the years 2012 – 2015. Dr Al-Tamni told me that the Claimant was part of the ad hoc committee for the event in 2012, 2014 and 2015. He said that the committee is responsible for the entire event, which includes handing the personal data of all the attendants, to include names, contact details, Saudi ID numbers and passport details relating to Saudi students, their families, Saudi ministers, Saudi officials, non- Saudi guests and VIPs. He said that the Claimant would have been liaising with Saudi officials and/or their staff to make arrangements for their attendance and this would involve their contact details and other personal details etc.[23]Dr Al-Tamni also told me that, between 6 June 2016 and 25 September 2017, whilst working as PA to the Head of the Cultural Affairs Department, the Claimant continued to have access to Rasel system as she was required to send and receive anything relating to the department through that channel. He said that, as his PA, the Claimant had sight of, and full access to, the work and documents of the Head of the Cultural Affairs Department, Dr Nasser Abdullah Bin Ghali, a Diplomat. He said that the information and documentation which the Claimant handled included sensitive and confidential documents relating to the Saudi government, its citizens and the Saudi Royal family. He said that the Claimant also attended meetings with Dr Bin Ghali to take notes when meeting different officials and Saudi students or citizens.[24]On being transferred back to the role of Post Room Clerk in the Administrative Affairs Department on 26 September 2017, Dr Al-Tamni told me that the Claimant resumed the duties relevant to that role.[25]He said that, at all times, the Claimant had an electronic security card number (168) that gave her full access to all the internal doors within the Cultural Bureau building.[26]The Claimant’s evidence was starkly contrasting. She told me that as a Post Room clerk, from January 2010 until June 2016, her job was simply to register students’ 4 ph outcome jment and case mngmnt 1.5.14 version invoices and reports coming from universities. She said that she was not responsible for opening and reading the mail which arrived in the Post Room, but that she processed communications which had already been checked and stamped by her colleague, Ms Tarraff. The Claimant denied that she opened and read mail which arrived in the Post Room, even when Ms Tarraff was on annual leave.[27]The Claimant insisted that the only communications she handled in the post room were invoices from British universities. She denied that the documents she handled included data about Saudi students which was personal and confidential. She said her role involved simply looking for the name of the student on the relevant communication, their reference number and the university they were studying at. She said that she never accessed any other information.[28]The Claimant said that she did not receive mail from Saudi Arabia and that post for diplomats would go directly to them.[29]The Claimant said that any confidential mail would be taken to the Director of the administrative department and he would open it. If there was nothing confidential in the relevant communication, he would return the correspondence to the post room.[30]The Claimant said that the Cultural Bureau looked after the arrangements for Saudi students while they are studying in London. She agreed that the Cultural Bureau protected their interests.[31]The Claimant said that she did not believe that she had access to confidential information. She said that she was not aware that she had access to, or used, the Rasel system. The Claimant said that she used different systems, called MOHE and Safeer. She denied that she had access to confidential information including medical reports and passport numbers. The Claimant said that confidential information at the Respondent was only handled by a very limited number of individuals who were Saudi Diplomats and they would correspond and communicate in Arabic about confidential information. The Claimant’s first language is also Arabic.[32]The Claimant denied that she had ever been a member of a committee at the Respondent.[33]She said that, when she worked as secretary to the Head of the Cultural Affairs Department, Dr Nassir, she carried out basic secretarial functions like answering the telephone, booking rooms, inviting people to meetings with Dr Nassir, and arranging for caterers to provide refreshments at events. She said that the only email communications she dealt with concerned universities and students.[34]The Claimant denied that she had access to Dr Nassir’s diary. She said that she would make appointments for people when Dr Nassir asked her to do so. If visitors attended to see Dr Nassir, she would either send them through if he was available, or take their name and details if he was away.[35]The Claimant denied that she attended any meetings with Dr Nassir, or took any notes of meetings. She said that she never went into his office except to take tea or coffee and never knew anything about the people Dr Nassir was meeting. 5 ph outcome jment and case mngmnt 1.5.14 version[36]The Claimant said that, as far as she knew, the Cultural department did not handle any confidential information and only looked after the interests of Saudi students in the UK.[37]The Claimant said that, when she returned to the post room, she was assigned no tasks and had no access to computers or files.[38]There were no records of the committee membership or of any (redacted) minutes showing who attended committee meetings. Findings – Claimant’s Job Roles[39]I decided that the Claimant did use the Rasel system during her employment, but was unaware that she was doing so. She worked in applications called Mohe and Safeer.[40]I also decided that, while the Claimant might have been able to access wideranging confidential information such as medical records of Saudi students, including children of Royal family members or government officials, using her username on the Rasel system, she was unaware that she could do so. Her job roles did not require her to do this and she and never, in fact, did it.[41]I accepted the Claimant’s evidence that, while she worked in the post room, she did not open the mail received there. Her colleague did this, reading and stamping the relevant correspondence. While Dr Al-Tamni described the post room functions generally, he was not employed at the same time as the Claimant and did not work with her. I considered that the Claimant had better knowledge of her job roles. I found her insistence that she dealt only with UK university invoices, checking the student names and numbers and entering the invoices on the Respondent’s systems, to be credible.[42]I accepted that the Claimant genuinely believed that the Cultural Bureau looked after the arrangements of Saudi students in the UK and did not handle confidential government information. She repeatedly described her role in the post room, and her knowledge of the function of the Cultural Bureau, in this way.[43]Given that there were no records of the committee membership or of any (redacted) minutes showing who attended committee meetings, I did not find that the Claimant was a member of any committee responsible for the Respondent’s Career Day and Graduation Ceremony. I accepted that the Claimant was involved in the organization of that event. I accepted Dr Al-Tamni’s evidence that she may well have had access to the names, contact details, Saudi ID numbers and passport details relating to Saudi students, their families, Saudi ministers, Saudi officials, non- Saudi guests and VIPs, for this purpose. I accepted his evidence that the Claimant would have liaised with Saudi officials and/or their staff to make arrangements for their attendance and this would involve their contact details.[44]Regarding the Claimant’s role as secretary to the Head of the Cultural Affairs Department, Dr Nassir, I accepted the Claimant’s evidence that she undertook only basic secretarial functions. I found that her functions were confined to answering the telephone, booking rooms, inviting people to meetings with Dr Nassir, arranging for caterers to provide refreshments at events, and dealing with email communications regarding universities and students. 6 ph outcome jment and case mngmnt 1.5.14 version[45]I accepted that the Claimant did not have access to Dr Nassir’s diary, but that she made appointments as instructed and passed contact details to Dr Nasser as appropriate.[46]I accepted Ms Burton’s submission that I should not assume that a secretary in a Cultural Bureau of a foreign state would operate in the same way as a professional PA in a commercial firm, for example. I noted that, while the Claimant was given the job title, “student coordinator for health affairs”, both parties agreed that she remained a post room clerk and that the title did not reflect her job responsibilities. I decided that the title given to the Claimant did not necessarily reflect the normal job functions associated with such a title.[47]I accepted the Claimant’s evidence that she did not attend any meetings with Dr Nassir, nor did she take notes of meetings. I accepted her evidence that she did not go into his office except to take tea or coffee and did not know details about Dr Nassir’s meetings.[48]There were no documents showing that the Claimant did take any notes of meetings. There were no email communications showing that she communicated with government officials on Dr Nassir’s behalf. These could have been produced, in redacted form, to show that the Claimant was exercising such functions. The lack of evidence showing that the Claimant undertook any role relating to government functions led me to conclude that she did not. I accepted that she delt only with routine correspondence about the arrangements for Saudi students to study in the UK.[49]I also accepted the Claimant’s evidence that she undertook little, or no work, when she returned to the post room in 2017, before her employment ended in 2018. State Immunity Law[50]Foreign states enjoy a general immunity from the jurisdiction of the courts in the UK, pursuant to the State Immunity Act 1978. By SIA 1978 s 1(1): 'A state is immune from the jurisdiction of the courts of the UK, except as provided in the following provisions of this Part of this Act'. State Immunity: Contracts of Employment[51]However, state immunity does not apply in the case of proceedings relating to a contract of employment between the state and an individual where the contract was made in the UK or the work is to be wholly or partly performed there, s 4(1) SIA. On the other hand, s4(1) SIA itself does not apply if:(a) at the time when the proceedings are brought the individual is a national of the state concerned; or(b) at the time when the contract was made the individual was neither a national of the UK nor habitually resident there; or(c) the parties to the contract have otherwise agreed in writing, s 4(2) SIA.[52]S 4(1) SIA also does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Vienna Convention on Diplomatic Relations or the members of a consular post within the meaning of the Vienna Convention on Consular Relations (“VCDR”), s 16(1)(a) SIA. 7 ph outcome jment and case mngmnt 1.5.14 version[53]Art 1 VCDR defines:(1) The “members of the mission” as including “members of the staff of the mission”: art 1(b);(2) The “members of the staff of the mission” as including “members … of the administrative and technical staff … of the mission”: art 1(c); and(3) “The “members of the administrative and technical staff of the mission” are the members of the staff of the mission employed in the administrative and technical service of the mission”: art 1(f).[54]Thus, where the provisions of s 4(2) or s 16(1)(a) apply, state immunity can operate to prevent employees from bringing claims relating to their contract of employment.[55]However, Art 6.1 European Convention on Human Rights (“ECHR”) provides: “In the determination of his civil rights and obligations…., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”[56]Art 47 Charter of Fundamental Rights of the EU provides: “47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article.”[57]In Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah, [2018] IRLR 123, [2017] ICR 1327, the Supreme Court decided that the doctrine of state immunity in international law applied only sovereign acts, not private acts, of the foreign state concerned. “The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority” [37].[58]Whether there has been such an act will depend on the nature of the relationship between the parties, and this in turn will depend on the functions that the employee was employed to perform [54].[59]At [55] Lord Sumption distinguished between the three categories of embassy staff as follows: (1) “The Vienna Convention on Diplomatic Relations divides the staff of a diplomatic mission into three broad categories: (i) diplomatic agents, ie the head of mission and the diplomatic staff; (ii) administrative and technical staff; and (iii) staff in the domestic service of the mission. Diplomatic agents participate in the functions of a diplomatic mission defined in article 3, principally representing the sending state, protecting the interests of the sending state and its nationals, negotiating with the government of the receiving state, ascertaining and reporting on developments in the receiving state and promoting friendly relations with the receiving state. These functions are inherently governmental. They are exercises of sovereign authority. Every aspect of the employment of a diplomatic agent is therefore likely to be an exercise of sovereign authority. The role of technical and administrative staff is by comparison essentially ancillary and supportive. It may well be that the employment of some of them might also be exercises of sovereign authority if their functions are sufficiently close to the governmental functions of the mission. Cypher clerks might arguably be an example. Certain confidential secretarial staff might be another: see Governor of Pitcairn and Associated Islands 8 ph outcome jment and case mngmnt 1.5.14 version v Sutton (1994) 104 ILR 508 (New Zealand Court of Appeal). However, I find it difficult to conceive of cases where the employment of purely domestic staff of a diplomatic mission could be anything other than an act jure gestionis. The employment of such staff is not inherently governmental. It is an act of a private law character such as anyone with the necessary resources might do.”[60]In Governor of Pitcairn and Associated Islands v Sutton (1994) 104 ILR 508 New Zealand Court of Appeal, the parties had agreed the following facts in relation to the employee’s role: “ THE applicant, Mrs Sutton, was employed by His Excellency the Governor at the Office at [sic] the Governor of Pitcairn in Auckland. The applicant was employed in the position of typist/clerk. The applicant’s duties comprised the provision of all typing and secretarial services necessary to operate the Office of the Governor, including typing all communications between the Governor, the Commissioner and Pitcairn, including the Governor’s official instructions, and registering all mail going into and out of the Office of the Governor. Essentially Mrs Sutton was employed by the Governor in order to assist in the carrying out of the Governor’s administrative functions as the Governor of Pitcairn.”[61]The SC in Benkharbouche decided that, with regard to purely domestic staff employed in a diplomatic mission, their employment is not an inherently governmental act, but is an act of a private law character, and there is no basis in customary international law for the application of state immunity in an employment context to such acts. The wider immunity conferred in such employment cases by ss 4(2)(b) and 16(1)(a) State Immunity Act 1978 was therefore inconsistent with art 6 European Convention on Human Rights, and art 47 Charter of Fundamental Rights of the EU.[62]Following Benkharbouche, Tribunals do have jurisdiction to hear complaints brought by domestic staff against foreign states based on EU law, if the employment relationship is of a purely private law character. Tribunals also have jurisdiction to hear complaints brought by administrative staff, if the employment relationship was of a purely private law character. Art 47 of the Charter provides for the right to an effective remedy and a fair trial. The Supreme Court decided that the Charter therefore provided the power to disapply the provisions of the SIA 1978 entirely to ensure that the Claimants were able to pursue an effective remedy for the alleged contravention of their EU law rights.[63]For employment claims before IP completion day (31 December 2020), the general principles in the Charter continue to apply and Claimants can rely on the Charter, as described in Benkharbouche, to disapply the SIA where it is incompatible with those general principles (Withdrawal Act 2018 Sch 8 para 39(3)). Discussion and Decision[64]I decided, first, whether the Respondent’s employment of the Claimant was an exercise of sovereign authority. If it was not, the Tribunal has jurisdiction to hear her complaints against the Respondent based on EU law. It would not matter whether the Respondent had submitted to the jurisdiction in respect of those complaints. In addition, her claim would not be restricted to a personal injury claim under s5 SIA. 9 ph outcome jment and case mngmnt 1.5.14 version[65]On my findings of fact, all the Claimant’s duties were truly ancillary and supportive as described by Lord Sumption in Benkharbouche, at [55].[66]The Claimant’s role as a post room clerk involved inputting invoices and reports from British universities on Saudi students in the UK into a computerized system. I agreed with Ms Burton’s description of this task as, in essence, a data entry job, which did not involve consideration, or analysis, of those documents. I found that the Claimant did not open the mail which arrived in the post room. This was done by a colleague, who read and categorized the correspondence. The Claimant was only passed relevant university invoices, or reports, to enter into the system. In contrast with the secretary in Governor of Pitcairn and Associated Islands v Sutton (1994) 104 ILR 508, the Claimant did not register all mail going into and out of the Bureau.[67]I found that the Claimant was not required to access confidential information in that role, nor did she do so. She simply looked up the student’s name, number and university. She was unaware that she had access to the wide ranging information available on the Ravel system as described by Dr Al-Tamni.[68]While the Claimant may have had access to ID numbers and passport numbers for Saudi Citizens, and the contact details for government officials, when she was helping to organize the Respondent’s Career Day and Graduation Ceremony between 2012 and 2015, I found that this was only for the purpose of arranging their attendance at the event.[69]This was a purely administrative function and did not involve any government decision making.[70]The Claimant’s secretarial role for Dr Nassir involved low level non-governmental functions such as booking rooms, inviting people to meetings and instructing caterers. The Claimant did not attend meetings with officials, nor take notes of these. She was not aware of the details of the people who attended meetings, nor of the content of the meetings.[71]I found that the Claimant’s email correspondence in her secretarial role was confined to email correspondence concerning students and their universities. This was not a governmental matter but involved making practical arrangements for Saudi citizens studying abroad.[72]Her role did not comprise “all typing and secretarial services necessary to operate” Dr Nassir’s office and did not include typing all communications between him and government officials. It did not include typing his “official instructions”, unlike in Governor of Pitcairn and Associated Islands v Sutton.[73]It is logical that the Claimant may have dealt with the children of government officials, or members of the Royal family, in this role. However, her role was a purely administrative one, making arrangements for study and payment to universities.[74]The Claimant might have had access to some confidential personal contact and ID details of government and Royal attendees, in organizing the Respondent’s Career Day and Graduation Ceremony between 2012 and 2015 and when making arrangements for their children’s study. However, I decided that that did not mean 10 ph outcome jment and case mngmnt 1.5.14 version that the Claimant’s role was close to the governmental functions of the mission. She did not analyse these details, nor make governmental decisions in relation to them.[75]When she returned to the post room in 2017, the Claimant did little work of any kind. Her role was not different to her original post room clerk role.[76]The Claimant’s role throughout her employment was ancillary and supportive. It was not governmental. She did not support the governmental functions of the mission, but its administrative functions.[77]The Claimant’s employment was not an exercise of sovereign authority. The Tribunal has jurisdiction to hear her complaints against the Respondent based on EU law. Dated: 29 June 2021[1]The only oral and written witness evidence that we heard and read was from the Claimant. As per the reasons set out earlier, the Respondent chose not to participate in the final merits hearing.[2]Whilst the Respondent did not participate in the proceedings, we probed and carefully considered the evidence provided by the Claimant.[3]There was a relatively small bundle of documents running to 125 pages, a significant amount of which was medical evidence.[4]Before addressing the substance of the Claimant’s claims, we felt it important to set out the Claimant’s general submissions in respect of her ability to properly present her claim, as this had a bearing on our fact finding and conclusions.[5]Ms Burton submitted that the Respondent’s conduct in this litigation has adversely affected the Claimant’s ability to present her claim. There has been no disclosure from the Respondent, other than the documents it provided for the state immunity preliminary hearing. Ms Burton submitted that there are likely to be relevant documents in the Respondent’s possession, that the Claimant has not been able to present to the tribunal. Ms Burton cited examples of such documents as the holiday requests referred to in paragraph 10 of the Claimants witness statement or the inappropriate emails she received at paragraph 23 of her witness statement.[6]Additionally, Ms Burton highlighted that we are now some 6 years on since the Claimant worked for the Respondent and she submitted this delay is likely to have an understandable impact on the Claimant’s recollection of the precise details of her claim.[7]We accept the Claimant’s submissions in this regard and have been mindful of these matters both in our fact finding and when reaching our conclusions.
Findings of Fact
[8]Having considered all the evidence, both oral and documentary, we made the following findings of fact. These findings are not intended to cover every point of evidence given but are a summary of the principal findings that we made from which we drew our conclusions. We have made findings not only on allegations made as specific discrimination complaints but on other relevant matters raised as background. These findings may have been relevant to drawing inferences and conclusions.
Background
[9]The Respondent Cultural Bureau is part of the Ministry of Education of the Kingdom of Saudi Arabia.[10]The Claimant is a Catholic Christian. She compares herself to a hypothetical comparator of Muslim religion.[11]The Claimant commenced her employment with the Respondent on 18 January 2010 and until June 2016 she worked in the Administrative Affairs Department as a post room clerk in its post room.[12]In June 2016, the Claimant was transferred to the Cultural Affairs Department as secretary to Dr Nasser Bin Ghali. In this role the Claimant’s tasks included various administrative functions such as booking rooms, sending invitations and co-ordinating with caterers as directed.[13]On 26 September 2017, the Claimant was transferred back to the Administration Affairs Department but was not provided a specific position.[14]The earliest act that the Claimant relies on is November 2015, she does not raise any issues with her employment up to this point, however, to provide context and an explanation for this, she advises that the Respondent’s diplomatic personnel changed every 4 years. In 2015, a new Saudi diplomatic team was appointed and came into the office and it from this point onwards that the Claimant avers that she started experiencing issues. Christmas Leave request – Nov/Dec 2015[15]In early 2015, Abel Aziz El Mashadi, a Muslim, was the Respondent’s Administrative Manager and all holiday requests were to be submitted to him.[16]In or around November 2015, the Claimant requested a 4 day holiday over Christmas 2015. The request was initially made in writing through the holiday application provided by the Respondent for all employees seeking time off.[17]When she did not hear anything back from Mr El Mashadi, the Claimant spoke to him about the request in his office. There was no one else present at the time that she spoke to him. In response to her request Mr El Mashadi questioned the Claimant’s timing and criticised her need to take a holiday for Christmas stating it was a meaningless holiday to celebrate and questioned why she would celebrate such a holiday at all.[18]The Claimant states in her evidence and we find that that she was “utterly appalled and deeply offended” by Mr El Mashadi’s comments. She felt offended and demeaned that her religious holiday was not deemed a “legitimate” reason for taking time off.[19]Other than to enquire if anyone could cover her shift for the days she wanted to take off, the Claimant did not speak to anyone about this incident, because she felt extremely embarrassed in the way Mr El Mashadi had spoken to her. She felt it would impact her colleagues’ views about her and that they might treat her differently if she told them about this.[20]Mr El Mashadi delayed confirming that the Claimant could have time off for Christmas until around 2-3 days before the days she wanted to take off. When eventually granting the Claimant permission to take leave, Mr El Mashadi remarked in a pejorative way "go off and celebrate your Christmas”. Once again, no one else was present when Mr El Mashadi spoke to the Claimant to inform her that her leave was granted.[21]The Claimant felt marginalised by Mr El Mashadi's comments, particularly given how he had previously responded to her when she first made the holiday request. The Claimant felt humiliated and cried at work. March/April 2016 – Change of name comments[22]As part of her role, the Claimant was expected to retrieve documents for filing in the HR office. This was located on the second floor in the wing of the administrative department. In March or April 2016, before Easter, whilst the Claimant was alone in the HR office, Mr Abdelmajeed Alyehyha, Saad El Mutawa and Mohammad Bouhemid entered the office. Mr Alyehyha made comments suggesting that it was time for the Claimant to change her Christian name, Antoinette, to an Islamic name. This remark left the Claimant feeling displaced and disrespected. The Claimant felt extremely intimidated being surrounded by 3 males making such comments. She was shocked and fearful, rendering her unable to respond. The Claimant found the experience distressing and recalls wanting to finish work and go home to escape the hostile environment.[23]In her oral evidence to the Tribunal, the Claimant provided specific details in respect of an incident around this time period, when she recalled Mr Al Khalifa using the term “Kaffir”. The word "Kaffir" in the context of this case is understood to be the Arabic translation referring to a non-Muslim or a non-believer. The Claimant described entering Mr Khalifa’s office to take papers, where she encountered Mr El Mashadi having coffee. Out of nowhere Mr Al Khalifa said to the Claimant “you are a “kaffir” and we can’t talk to you about anything”.[24]We accept the unchallenged evidence of the Claimant and conclude that this incident took place. The Claimant provided clear and detailed evidence and whilst she was unable to provide a specific date, we find this is unsurprising in light of the length of time that has elapsed. Mr Al Khalifa used the word “Kaffir” in a pejorative way towards the Claimant. The term was used in a disrespectful and negative way. March 2016 – Ash Wednesday/Easter comments[25]On Ash Wednesday 2016, Mr Al Khalifa referred to the ash crucifix on the Claimant’s forehead as an “ugly tattoo" and called her a "Kaffir". The Claimant reported this incident to Dr Fahed Al Naim, who was the attaché of the Cultural Bureau at the time.[26]Mr Al Khalifa’s comments circulated among other colleagues both within and outside the department. As a result, groups of colleagues began collectively questioning the Claimant’s Catholic Christian religious practice.[27]The Claimant alleges that colleagues in particular questioned the significance of the ash on her forehead, deeming it pointless and meaningless. The Claimant could not recall names and details of individuals and as such with this lack of detail, for this particular incident, we find insufficient evidence to prove on balance probabilities that these particular comments were made.[28]On or around Easter 2016, when fasting for Lent, the Claimant was told by colleagues that she did not understand about fasting or Ramadan because she was a “Kaffir”. The Claimant experienced a profound sense of disrespect and felt targeted by her coworkers. Whilst the Claimant was unable to recall the names of her colleagues who made these comments, in light of our findings at paragraphs 23 and 24 regarding the use of the term “Kaffir”, we conclude that these comments were made.[29]On or around Ash Wednesday 2016, Mr Al Khalifa criticised the Claimant for bringing in celebratory sweets for Easter. Consequently, whenever a Christian occasion throughout the year, Mr Al Khalifa would mock and laugh at the Claimant, making comments like "go bring your celebratory sweets" in a demeaning manner. Events from May 2016 to September 2017[30]Around May/June 2016, upon noticing the Claimant with a rosary in her hand, Mr Saad El Mutawa who worked in the HR department, remarked, "you should not have this in your hand because this is a Muslim Office" and walked away. The Claimant again promptly reported this incident to Dr Fahed Al Naim at the time.[31]In 2016, Mr Abdelmajeed Alyehyha made a remark suggesting that the Claimant should become a Muslim. Whenever Mr Alyehyha addressed the Claimant, he consistently refrained from using her name and instead referred to her as "that" or "thing". The Claimant once again promptly reported this behaviour to Dr Fahed Al Naim.[32]The Claimant found this behaviour humiliating. It created an atmosphere that made her highly uncomfortable discussing her religious beliefs or celebrating her religious holidays in the workplace.[33]We accept the Claimant’s evidence that the instances were impacting her mental health. She began to feel depressed, she describes “each day became an uphill battle, with every step forward feeling like a monumental effort”.[34]When the Claimant approached Dr Fahed Al Naim to report these incidents and express her concerns, he expressed his dissatisfaction with the situation but emphasised that he did not wish to escalate the matter unnecessarily. Instead, he advised that he would personally address the individuals involved.[35]Subsequently, Dr Fahed Al Naim mentioned that the only course of action available to him was to transfer the Claimant to another department. On 6 June 2016, the Claimant was transferred from the Administrative department to the Cultural Affairs department by Dr Fahed Al Naim to work as secretary to the department Manager, Dr Nassir Bin Ghali. Dr Fahed Al Naim left the Cultural Bureau on 16 June 2016.[36]Upon confirmation of the transfer, Mr El Mashadi approached the Claimant and told her “Just because you have been transferred, it does not mean I will leave you alone. I will continue to bother you because you left my department but you have not left the office. I can reach you even if you are in a different department”.[37]In March 2017, Dr Abdulaziz was appointed as the cultural attaché. Subsequently from May 2017 onward, the Claimant found herself without any assigned tasks, despite consistently attending work as usual.[38]On 20 September 2017, the Claimant was sent an email from Mr Moath Alsaid, Head of Saudi Student Clubs, in which he stated: “Hoping to communicate with Abdulraham Almuhamis to peruse the tasks which will be given to you in order to work at the Student Clubs Administration (emphasis added).” We find this email supports our finding at paragraph 35, that the Claimant was not assigned any tasks from May 2017.[39]In 2017 Muhammad Bouhemid was working in the HR department. The Claimant had previously worked alongside Mr Bouhemid in the Administrative department until June 2016 when she was transferred. On an occasion in 2017 during her lunch break, the Claimant entered the elevator and unexpectedly encountered Mr Bouhemid. In a brief and one-sided conversation, Mr Bouhemid belittled her, making comments such as “you're still here?”, “you don’t deserve to be here”, “As a Christian, you shouldn’t be here”, “You've been here too long”, “How could they ever hire you in the first place”.[40]We accept the Claimant felt unsettled, vulnerable, humiliated, and invalidated. She felt like Mr Bouhemid was building on the comments he had witnessed Mr Alyehya making to her back in 2016.[41]The Claimant reported this incident to Dr Nasir Bin Ghali, deputy head of attaché and her manager at the time. He assured her that he would address the matter, but she received no further communication or updates from him on the actions taken. Events from September 2017 onwards[42]On 25th September 2017, after returning from a lunch break, the Claimant found the desk that she was assigned to was being taken apart. Her belongings, including her bag, coat, papers and stationery were all on the floor. The Claimant was told by the employee who was taking apart her desk that she was to go to the Administrative department but was not provided any reason for this.[43]As a result, the Claimant attempted to find her manager in the Cultural Affairs department, Dr Nasir Bin Ghali, but he was not in the office. When asking for information about his whereabouts, she was not told anything because she had been transferred to another department.[44]The Claimant was told that she had been reassigned to the Administrative department, reporting to Mr Saud Al Wadani. However, she was not assigned any specific position and was not allowed to access the Post Room. Instead, she was situated outside the Post Room at an empty desk.[45]On 26 September 2017, the Claimant was given a letter entitled the “decision of employee transfer". This document outlined the Claimant’s transfer to the Administrative department but did not specify a particular position or provide a reason for the transfer. The Claimant continued working in the Administrative department until her employment was terminated on 16 January 2018.[46]Following her transfer, the Claimant was not given any work and was made to sit outside the Post room at an empty desk.[47]In her oral evidence to the Tribunal, the Claimant clarified that she was provided with a desk, chair and computer. The Claimant was unable to use the computer as it had no applications available and no internet access.[48]The Claimant described the area outside the Post room as a big hall. There were other staff from the financial and administrative departments, sitting around in the area, however, there was a board divider placed around her particular desk, isolating her from other desks. There were only 2 desks including the Claimant’s with divider boards placed around them; the other one was the secretary’s desk, which no one was sat at during this period.[49]Following her reassignment, the Claimant was consistently not assigned any work. Upon querying the department change and expressing her desire for work to her new line manager, Mr Saud Al Wadani, dismissed the Claimant with apparent disdain, implying that she was burdensome and instructed her to leave his office.[50]During this incident, Mr Saud Al Wadani emerged from his office, raising his voice and scolding the Claimant. The incident unfolded in front of numerous colleagues from the administrative and finance departments.[51]This incident occurred in the presence of Mr Khalid El Yousef, a new Saudi colleague who had joined the office and who openly mocked the situation, along with Mohammad Bouhemid. Colleagues, including Osama Arman, Nizar Refai, Elie Zoghbi, Mohammed El Batikhi, and others, were also witnesses to this encounter.[52]We accept the Claimant’s evidence that she felt disbelief, frustration, and hurt, compounded by a profound sense of injustice and indignation concerning the abrupt change and the treatment by her new line manager. She felt ostracised by her colleagues and the incident left her feeling vulnerable and exposed.[53]On 16 October 2017, the Claimant received a notice of termination of employment from Mr Khalid Youssef, someone with whom she had not previously interacted. The letter did not detail any reasons for termination of employment nor did it provide details of any right to appeal. Upon asking for the reasons for her dismissal, Mr Youssef declined to provide any details regarding the grounds for termination, stating that he was only ordered to give her the termination letter. Mr Youssef told her to take the letter and leave.[54]The Claimant’s employment with the Respondent ended on 17 January 2018. Jurisdiction – Time Limits[55]The medical records highlight that the Claimant contacted her GP on or around 6 November 2017 due to depression related concerns. She has been receiving ongoing treatment for depression since then.[56]Since November 2017, the Claimant has been regularly prescribed antidepressants including Citalopram, Sertraline and Venlafaxine, with frequent adjustments due to severeness of the depression.[57]Additionally, since 21 December 2023, the Claimant has been prescribed Propranolol tablets to manage anxiety. This prescription is ongoing, and the Claimant regularly collects more medication as needed, following instructions to take it whenever she experiences panic attacks.[58]Between 6 November 2017 and the end of January 2018, the Claimant consistently received unfit for work notes from her GP due to anxiety and depression.[59]On or around 6 November 2017, the Claimant was referred to the mental health team, who upon assessment on 7 December 2017 noted that: “Antoinette was also bullied at work because of her religion”.[60]On 30 January 2018, the Claimant contacted Reculvers Solicitors. ACAS were first contacted on 6 February 2018 and the early conciliation certificate was issued on 21 February 2018. The Claimant lodged her claim with the Employment Tribunal on 19 March 2018.[61]The Claimant’s evidence is that the reason for not initiating her claim any sooner stemmed from a combination of fear, doubt and a decline in her mental health. She states that she was worried that she would not be believed and questioned the feasibility of pursuing legal action. She also harboured anxiety over potential repercussions at work, fearing termination and its impact on supporting her family. Relevant Law Direct discrimination
Relevant Law
[62]Section 13 of the Equality Act 2010 provides as follows; A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. Burden of Proof[63]Section 136 of the Equality Act 2010 provides; (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[64]In Islington Borough Council v Ladele [2009] ICR 387 Mr Justice Elias explained the essence of direct discrimination as follows: “The concept of direct discrimination is fundamentally a simple one. The Claimant suffers some form of detriment (using that term very broadly) and the reason for that detriment or treatment is the prohibited ground. There is implicit in that analysis the fact that someone in a similar position to whom that ground did not apply (the comparator) would not have suffered the detriment. By establishing that the reason for the detrimental treatment is the prohibited reason, the Claimant necessarily establishes at one and the same time that he or she is less favourably treated than the comparator who did not share the prohibited characteristic.”[65]Burrett v West Birmingham Health Authority 1994 IRLR 7, EAT is an example of the proposition that it is for the tribunal to decide as a matter of fact what is less favourable treatment and the test posed by the legislation is an objective one. The fact that a Claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment, although the Claimant’s perception of the effect of treatment is likely to be relevant as to whether, objectively, that treatment was less favourable.[66]In order for a disadvantage to qualify as a “detriment”, it must arise in the employment field, in that ET 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. An unjustified sense of grievance cannot amount to “detriment”. However, to establish a detriment, it is not necessary to demonstrate some physical or economic consequence, Shamoon v Chief Constable of RUC [2003] UKHL 11.[67]Igen v Wong and Others [2005] IRLR 258 and Madarassy v Nomura International PLC [2007] IRLR 246. The employment tribunal should go through a two-stage process, the first stage of which requires the Claimant to prove facts which could establish that the Respondent has committed an act of discrimination, after which, and only if the Claimant has proved such facts, the Respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In concluding as to whether the Claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the Respondent and the Claimant.[68]Madarrassy v Nomura International Ltd 2007 ICR 867 - the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the Respondent” committed an act of unlawful discrimination”. There must be “something more”.[69]Nagarajan v London Regional Transport [1999] IRLR 572, HL,-“The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?'”[70]Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] IRLR 830, [2001] ICR 1065, HL, - The test is what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously was their reason? Looked at as a question of causation ('but for …'), it was an objective test. The antidiscrimination legislation required something different; the test should be subjective: 'Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.' Harassment[71]Section 26 of the Equality Act 2010 provides; (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.”[72]Richmond Pharmacology V Miss A Dhaliwal [2009] ICR 724. There are two alternative bases of liability in the harassment provisions, that of purpose and effect, which means that the Respondent may be held liable on the basis that the effect of his conduct has been to produce the prescribed consequences even if that was not a purpose, and conversely that he may be liable if he acted for the purposes of producing the prescribed consequences but did not, in fact, do so.[73]Grant v HM Land Registry & EHRC [2011] IRLR 748 CA emphasised the importance of giving full weight to the words of the section when deciding whether the Claimant’s dignity was violated or whether a hostile, degrading, humiliating or offensive environment was created: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”[74]Pemberton v Inwood [2018] EWCA Civ 564. Underhill J ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)). Time limits[75]Section 123 of the Equality Act 2010 provides as follows; (1) [Subject to [sections 140A and 140B],] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[76]British Coal Corporation v Keeble [1997] IRLR 336, it was held that the Tribunal’s power to extend time was similarly as broad under the ‘just and equitable’ formula. However, it is unnecessary for a tribunal to go through the above list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’[77](Southwark London Borough v Afolabi [2003] IRLR 220). Robertson and Bexley Community Centre (trading as Leisure Link) 2003 IRLR 434CA - there is no presumption that time should be extended to validate an out of time claim unless the Claimant can justify the failure to issue the claim in time. The Tribunal cannot hear a claim unless the Claimant convinces the Tribunal that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.[78]Abertawe Bro Morgannwg University v Morgan [2018] EWCA Civ 640 - the "such other period as the employment tribunal thinks just and equitable" extension indicates that Parliament chose to give the tribunal the widest possible discretion. Although there is no prescribed list of factors for the tribunal to consider, "factors which are almost always relevant to consider are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the Respondent”.[79]The Court of Appeal made it clear in Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686, that in cases involving a number of allegations of discriminatory acts or omissions, it is not necessary for an applicant to establish the existence of some 'policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken'. Rather, what she has to prove, in order to establish 'an act extending over a period', is that(a) the incidents are linked to each other, and(b) that they are evidence of a 'continuing discriminatory state of affairs'. The focus of the enquiry should be on whether there was an “ongoing situation or continuing state of affairs” as oppose to “a succession of unconnected or isolated specific acts”. It will be a relevant, but not conclusive, factor whether the same or different individuals were involved in the alleged incidents of discrimination over the period. An employer may be responsible for a state of affairs that involves a number of different individuals.[80]South Western Ambulance service NHS Foundation Trust v King 2020 IRLR 168 “non-discriminatory acts alleged to be part of a course of conduct extending over a period cannot form part of a continuing act”. DISCUSSION & CONCLUSIONS[81]In terms of approach, we initially determined if there had been breaches of the Equality Act before moving on to determine the time limits question. This was in line with the dicta in South Western Ambulance service NHS Foundation Trust v King 2020 IRLR 168, which states that non-discriminatory acts cannot be part of “conduct extending over a period” of time.[82]To avoid repetition we set out initially a general finding that is applicable to all our conclusions of direct discrimination. Where we find the Claimant has demonstrated a prima facia case of discrimination and the burden shifts to the Respondent to show a non-discriminatory reason for the conduct as per Igen v Wong, there is no such evidence before us as the Respondent has elected not to take part in proceedings. The Respondent has not provided any documentary evidence in relation to the substantive claims or any witness evidence to support or defend its position. Christmas Leave Request – December 2016[83]This is allegations 2 (a) and (b) of the list of issues. In summary, the Claimant alleges that on or around November and December 2015, Mr El Mashadi belittled and criticised her for wanting time off for Christmas. He delayed approving her holiday and when he eventually did, he remarked in a pejorative way “go off and celebrate your Christmas”.[84]We found earlier in paragraphs 14 to 20, that Mr El Mashadi did do these things. We conclude that this was unwanted conduct and as a result, the Claimant felt disrespected and belittled. The Claimant is a deeply religious person, Mr El Mahsadi belittled the holiday and delayed given her approval. Objectively, we conclude it was reasonable for the conduct to be regarded as having that effect on the Claimant. We find the conduct related to her religion.[85]If we are wrong about that we find in the alternative that these acts were also acts of comparator of Muslim religion, we find that this is less favourable treatment. Mr El Mashadi is specific about Christmas and his comments are about Christmas being a meaningless celebration. We conclude he would not have made similar comments to a Muslim person about Muslim celebrations. Claimant being called “Kaffir”[86]In respect of allegations 5 (c) (i) and (ii), we found earlier in paragraphs 22, 23, 24 and 27 that the Claimant was called “Kaffir” in a pejorative way by Muslim colleagues on the following occasions: i) Mr Al Khalifa used the term Kaffir on an occasion when she, went to his office to take papers, he was sitting with Mr El Mashadi, they were having coffee and out of nowhere he said to the Claimant “you are a “kaffir” and we can’t talk to you about anything”. ii) On or around Easter 2016, when fasting for Lent, the Claimant was told by colleagues that she did not understand about fasting or Ramadan because the Claimant was a “Kaffir”. iii) On Ash Wednesday 2016, Mr Al Khalifa referred to the ash crucifix on the Claimant’s forehead as an “ugly tattoo" and called her a "Kaffir".[87]In respect of allegation 5 (c) (i) we are not satisfied on the balance of probabilities that Mr Al Khalifa used the word “Kaffir” in respect of his comments around celebratory sweets. This was not included in the Claimant’s witness statement and she was unable to clarify details in relation to this, when asked in oral evidence. In the circumstances, on this particular occasion we conclude that there is insufficient evidence that this comment was made at the time the Claimant brought in celebratory sweets.[88]On each occasion the Claimant was called Kaffir, we conclude that this was unwanted conduct related to her religion. The Claimant felt disrespected and humiliated. Objectively, we conclude for the Claimant to feel the way that she did is not an unreasonable view.[89]If we are wrong about that we find in the alternative that these acts were also acts of comparator of Muslim religion, we find that this is less favourable treatment. We conclude a hypothetical Muslim comparator would not have been called a “Kaffir” in a pejorative way. Ash Wednesday 2016[90]We deal with d, e and f together due to commonality in our findings and conclusions. We found earlier at paragraphs 24, 26 and 28, that in or around Ash Wednesday, Easter 2016, Mr Al Khalifa referred to the religious ash on the Claimant’s forehead as an “ugly tattoo” and that he criticised and mocked her for bringing in celebratory sweets.[91]In relation to allegation 2 (e), where it is alleged that the Claimants colleagues stated that the ash on the Claimant’s forehead was pointless and meaningless, we do not find this allegation proven and we repeat paragraph 27 of our findings in this regard.[92]We find allegations d and f proven in respect of harassment this was unwanted conducted related to religion that created a hostile degrading environment for the Claimant. If we are wrong about that we find that these allegations are also direct discrimination. We repeat paragraph 82 of our conclusion in respect of there being no evidence of any non-discriminatory reason before the Tribunal. Mr Al Khalifa compares the Claimant’s religion to Islam and we find in the context that these comments were made he would not make similar comments to a Muslim person. Comments relating to Claimant changing her name and religion[93]We deal with allegations 2 (g) and (h) together due to commonality in our findings and conclusions. We found earlier at paragraphs 21 and 22 that Mr Alyehya made comments suggesting that it was about time that she change her Christian name to an Islamic name and that she should become Muslim.[94]With regard to allegation 2(g)The Claimant felt disrespected and intimidated being surrounded by 3 males when such comments were made. We accept the Claimant was shocked and fearful, rendering her unable to respond. She found the incident distressing and wanted to finish work and go home to escape the hostile environment.[95]Mr Alyehya consistently refrained from using the Claimants name and instead referred to her as “it” , that or thing”. Taking Mr Alyehya’s conduct as a whole, we are in no doubt that that this created a humiliating environment and it directly related to the Claimant’s religion[96]We find allegations 2(g) and (h) proven in respect of harassment, this was unwanted conducted, related to religion that created a hostile degrading environment for the Claimant. If we are wrong about that we find that these allegations are also direct discrimination. We repeat paragraph 82 of our conclusion in respect of there being no evidence of any non-discriminatory reason before the Tribunal. We conclude, Mr Alyehya would not have made similar comments to a Muslim person. Mr Bouhemid comments[97]With regard to allegation 2 (j) we found earlier in paragraphs 36 and 37, that Mr Bouhemid did make the following comments: “are you still here?”; “As a Christian, you shouldn’t be here” and “you’ve been here too long” and “how could they ever hire you in the first place?”. We conclude that this was unwanted conduct, related to the Claimant’s religion, which created a hostile and degrading environment for her.[98]If we are wrong about that we find in the alternative that these acts were also acts of comparator of Muslim religion, we find that this is less favourable treatment. Mr Bouhemid is specific about the Claimant’s religion and that she should not have been working for the Respondent because of her religion. It is also of significance that Mr Bouhemid was also involved in the incident, where Mr Alyehya suggested the Claimant change her. In light of these findings, we conclude Mr Bouhemid would not have made similar comments to a Muslim person. Lack of work allocation May 2017 onwards allegations k, l, m, n and o[99]We deal with allegations 2 (k), (l), (m), (n) and (o) together due to commonality in our findings and conclusions.[100]We repeat our findings at paragraphs 36, 37, and 41-50. The Claimant was given no explanation for her move in September 2017 and when she asked for work, she was berated by Mr Al Wadani and humiliated in front of colleagues, who also in turn mocked her. The Claimant was subject to further degrading and humiliating treatment by being placed in a room at a desk separated from other team members with no applications available on her computer or access to the internet.[101]For all of these reasons, we find allegations (k) – (o) proven in respect of harassment; this was unwanted conducted, related to religion that created a hostile degrading environment for the Claimant.[102]If we are wrong about that, we find that these allegations are also acts of direct discrimination. We repeat paragraph 82 of our conclusion in respect of there being no evidence of any non-discriminatory reason before the Tribunal.[103]We conclude that the non-allocation of work, the transfer without explanation following her complaints of discriminatory conduct and the behaviour of Mr Al Wadani as well as the Claimant’s colleagues was less favourable treatment because of the Claimant’s catholic religion. Claimant’s dismissal[104]In relation to allegation (p), the Claimant’s dismissal, it is not in dispute that she was in fact dismissed.[105]In the Claimant’s termination letter no explanation is given for her dismissal, this is despite the fact she had been working for the Respondent for more than 7 years. The Claimant sought an explanation of the reason for her dismissal from the author of the letter but was told that he was only instructed to give her the letter. She was not given any right of appeal or way to challenge her dismissal.[106]The manner of her dismissal in the context of the hostile and discriminatory treatment that she had been subject to since November 2015 leads us to conclude that the dismissal related to the Claimant’s religion. We find allegation (p) proven in respect of harassment; this was unwanted conducted, related to religion, that created a hostile degrading environment for the Claimant.[107]If we are wrong about that, we find that the dismissal was also an act of direct discrimination. There is no evidence before of us of any non-discriminatory reason for the Claimant’s dismissal and in light of all the preceding events and our findings we conclude that the Claimant’s dismissal was because of her Catholic religion. Jurisdiction – Time Limits[108]We find the Claimant’s claim for her discriminatory dismissal has been presented in time. Her dismissal took effect on 17 January 2018, she contacted ACAS on 6 February 2018, the date of the certificate was 21 February 2018 and she presented her claim on 19 March 2018.[109]For the purposes of the other acts of discrimination/harassment, we conclude that the Claimant was subject to a continuing hostile and discriminatory environment from November 2015 up to her dismissal in January 2018. We conclude that the conduct relied on was part of a continuing act for the following reasons: i) The Claimant made repeated reports of the discriminatory behaviour she was facing to Dr Al Naim and to Dr Nasir Bin Ghali but no steps were taken by the Respondent to stop the behaviour. ii) A number of the same individuals were continuing perpetrators. This includes Mr El Mashadi who engaged in discriminatory acts in November and December 2015 and then after June 2016. Another perpetrator was Mr Bouhemid; he was a witness to Mr Alyehyha’s conduct in March and April 2016, and then in 2017 he made several discriminatory comments to the Claimant; iii) After the Claimant moved departments in June 2016, the harassing and discriminatory conduct continued. Mr El Mashadi comment warned the Claimant this would happen, when he stated: “Just because you have been transferred, it does not mean I will leave you alone. I will continue to bother you because you left my department but you have not left the office. I can reach you even if you are in a different department”; iv) Mr Al Khalifa continued to mock the Claimant at religious occasions throughout the year. v) Whenever Mr Alyehya addressed the Claimant, he would refrain from using her name and use nouns “it”, “that” “thing”, this was a continuing state of affairs; vi) From May 2017, when the Claimant was given little or no work, this was a continuing state of affairs that happened day by day; vii) From September 2017 when the Claimant was again transferred and given little or no work, this was a continuing state of affairs that happened day by day; and viii) When the Claimant was given notice on 16 October 2017 and this continued until her dismissal took effect on 16 January 2018.[110]If we are wrong about that, we conclude that it is just and equitable to extend time, for the following reasons: i) From November 2015 onwards, the Claimant was suffering from the impact of the Respondent’s discrimination and harassment. She describes crying at work and wanting to go home to escape the treatment she was being subject to. We accept the Claimant’s evidence that the instances were impacting her mental health. She began to feel depressed, she describes “each day became an uphill battle, with every step forward feeling like a monumental effort”. ii) We accept the Claimant’s description of the impact of the discrimination and harassment on her, where she refers to her “fear and doubt” and worry that she would not be believed. We view this in the context of the Claimant making a number of complaints about her treatment but none of these amounting to anything; iii) The Claimant was signed off from work from 6 November to 20 November 2017 due to anxiety and depression.[111]In relation to the balance of prejudice, we conclude that this falls squarely in favour of the Claimant. The usual arguments about the availability of documents and witness evidence do not apply here as the Respondent has chosen not to take part in proceedings.[112]Directions in respect of a remedy hearing will be sent to the parties in due course.