Ms B Marston v Excel Hospitality Ltd: 2305117/2023

EMPLOYMENT TRIBUNALS

Case No 2305117/2023

Between

Ms B MarstonClaimant

Excel Hospitality LtdRespondent

Before

Employment Judge Abbott, Mrs N Beeston & Mrs J Jerram

Date 23 July 2025

JUDGMENT

[1]The complaints of direct race discrimination are not well founded and are dismissed.

[2]The complaints of victimisation are not well founded and are dismissed.

REASONS

[1]This is the unanimous judgment of the Tribunal on the claim brought by Ms Benabel Marston (“the Claimant”) following a final hearing on 10-13 June 2025 and closing submissions provided in writing thereafter. Judgment was reserved. The Claimant represented herself and was accompanied throughout the hearing by a friend, Jackie Walker, for support. The Respondent was represented by a solicitor, Mr Hillerby.

[2]This claim was presented on 23 September 2023; early conciliation having taken place between 13 July and 24 August 2023.

[3]A List of Issues was agreed with the parties at a Preliminary Hearing before Employment Judge Robinson on 7 May 2024. The parties confirmed at the start of the final hearing that this fully reflected the pleaded issues that were live before the Tribunal. The list, so far as concerned with liability, is as follows (LOI): Direct race discrimination (Equality Act 2010 section 13)

[1]Did the Respondent do the following things:a. Did Ms Birch (the Claimant’s supervisor): i. on 4 November 2022, say to the Claimant “I didn’t think people like you worked in accounts” and “I’ve only seen Asians in accounts”? ii. on 7 November 2022, ask the Claimant the very basic accounting question “Do you know what A/R [Accounts Receivable] is?”? iii. on 14 November 2022, fail to check the Claimant’s work (given it was only the Claimant’s second week), resulting in the Claimant receiving adverse client feedback?

b. On 31 December 2022, did Ms Dagwell (Assistant Financial Controller) fail to acknowledge the Claimant’s birthday with a card?

c. On 6 January 2023, did Ms Dagwell and Mr Sinha (both Assistant Finance Controllers) fail to listen to the Claimant’s allegations of racial bias against Ms Birch?

d. On 9 January 2023, did Mr Chowdhury (Director of Finance) criticise the Claimant for raising racial bias in her [subsequently rescinded] resignation letter?

e. On 9 January 2023, did Mr Chowdhury and Ms Doran (HR) fail to deal with the Claimant’s racial bias allegations and fail to assign the Claimant to be trained by someone other than Ms Birch?

f. From 10 January 2023 until the Claimant’s dismissal, did Ms Birch: i. give the Claimant mundane tasks, ii. fail to give the Claimant autonomy in her work, iii. fail to give the Claimant access to accounting software, iv. withhold training from the Claimant, and v. give the Claimant tasks for which she was not trained?

g. On 9 May 2023, did Mr Chowdhury refuse the Claimant’s request to transfer office locations?

h. On 15 May 2023, at the Claimant’s Review Meeting, did Mr Chowdhury only take account of Ms Birch and Ms Banea’s feedback and not the Claimant’s?

i. On 16 May 2023, was the Claimant dismissed?

[2]Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s.

[3]The Claimant says she was treated worse than Ms Banea. If so, was it because of race?

[5]Did the Respondent’s treatment amount to a detriment? Victimisation (Equality Act 2010 section 27)

[6]Did the Claimant do a protected act of alleging racial bias against Ms Birch at the Claimant’s 6 January 2023 review meeting?

[7]Did the Respondent do the things referred to in paragraph 1(c) to (i) of the List of Issues above?

[8]By doing so, did it subject the Claimant to detriment?

[9]If so, was it because the Claimant did a protected act? 4. After a short opening session, 1.5 hours was taken for Tribunal reading. The evidence of the Claimant was then heard over the remainder of the first day and until 15:30 on the second day. Up to this point, the Claimant and the Respondent’s representative and witnesses had all been present in the same hearing room. At 15:30 cross-examination and panel questions had ended, and the Claimant was offered the opportunity to provide any clarification of her evidence in the usual way offered to unrepresented litigants. The Claimant requested a short break, and the Judge explained that following the break and any further evidence from the Claimant, the Tribunal intended to begin the evidence of the Respondent’s witnesses. During the break, the Claimant suffered a panic attack and, on the advice of the venue first aider, was unable to resume that afternoon. It was communicated to the Tribunal that the Claimant’s reaction was due to the impending prospect of having to cross-examine the Respondent’s first witness, Ms Birch. 5. Upon resuming on day 3, and following discussion with the parties, the Tribunal determined that the Claimant should be permitted to complete her evidence and then cross-examine the Respondent’s witnesses via video, whilst sitting in a separate hearing room. Despite some initial technical difficulties which delayed matters further, this mode of hearing was continued to the end of the evidence. Oral evidence was heard from four witnesses for the Respondent (Ms Margaret (Maggie) Birch, Ms RoxanaMaria (Roxy) Banea, Ms Judith Dagwell and Mr Anwar Chowdhury). The evidence was completed shortly after 16:00 on day 4, meaning there was not time for the parties to provide oral submissions. Both the Claimant and Mr Hillerby were content to provide closing submissions in writing, and were directed to do so by 26 June 2025. The panel then met on 30 June 2025 for deliberations. 6. In addition to the witness statements and written submissions referred to above, the panel was provided with a 472-page hearing bundle as well as a chronology from the Respondent. 5 additional pages were provided in the course of the hearing. The relevant law DIRECT DISCRIMINATION CONTRARY TO s.13 EQUALITY ACT 2010 7. Section 13 of the Equality Act 2010 (EQA) prohibits direct discrimination. Section 13(1) EQA states: “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.” 8. Race including colour, nationality and/or ethnic or national origins (section 9 EQA) is a protected characteristic. 9. The primary focus in a direct discrimination case is on identifying why the claimant was treated as he was, before coming back to whether it was less favourable treatment because of the protected characteristic (see e.g. Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

). It is well established law that a respondent’s motive is irrelevant and, indeed, the possibility of unconscious discrimination is recognised (see e.g. Nagarajan v London Regional Transport

[1999] IRLR 572

, HL). Moreover, the protected characteristic need not be the sole or even principal reason for the treatment as long as it is a significant influence or an effective cause of the treatment (see e.g. Gould v St John’s Downshire Hill

[2021] ICR 1

, EAT). As explained by Peter Gibson LJ in Igen v Wong

[2005] ICR 931

(CA), a significant influence is one which is more than trivial.

The relevant law

[10]What amounts to “less favourable treatment” is an objective test for the Tribunal (Burrett v West Birmingham Health Authority

[1994] IRLR 7

, EAT), although the Claimant’s perception may be taken into account. The treatment cannot merely be different, but must be less favourable (Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

, HL). Detriment is established if treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment (Shamoon).

[11]A comparator must not share the protected characteristic relied upon, and must have no materially different circumstances – see section 23 EQA and Lord Scott in Shamoon: “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class.” This applies regardless of whether the comparator that is used is actual or hypothetical.

[12]The bare facts of(i) a difference in status and

(ii) a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination (Madarassy v Nomura International plc

[2007] EWCA Civ 33

). Something more is needed.

[13]The provisions relating to the burden of proof are found in Section 136(2) and (3) EQA: “(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.”

[14]It is thus for the Claimant to prove facts from which the Tribunal could conclude, in the absence of any evidence from the Respondent, that the Respondent committed an act of discrimination. Only if that burden is discharged is it then for the Respondent to prove that the reason for the treatment was not because of a protected act or characteristic (see, e.g., Igen v Wong; Royal Mail Group Ltd v Efobi

[2021] UKSC 33

). This will typically be based upon inferences of discrimination drawn from the primary facts and circumstances found by the Tribunal to have been proved on the balance of probabilities. Such inferences are crucial in discrimination cases as it is unlikely there will be direct, overt evidence that a Claimant has been treated less favourably because of a protected act or characteristic (see, e.g., Anya v University of Oxford

[2001] IRLR 377

, CA).

[15]Notwithstanding the above, in Efobi, Lord Leggatt repeated Lord Hope’s reminder in Hewage v Grampian Health Board

[2012] UKSC 37

that it is important not to make too much of the role of the burden of proof provisions: “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” VICTIMISATION CONTRARY TO s.27 EQUALITY ACT 2010

[16]Section 27 EQA provides, so far as is relevant: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”

[17]A “protected act”, therefore is, in essence, raising an issue of discrimination. A grievance cannot amount to a protected act merely by making a reference to a criticism, grievance or complaint without suggesting that the criticism, grievance or complaint was in some sense an allegation of discrimination or otherwise a contravention of the legislation (Beneviste v Kingston University EAT 0393/05). The Tribunal has to consider the information given by the employee on the basis of how it would be understood by the employer in context (Kokomane v Boots Management Services Ltd

[2025] EAT 38

[18]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 they had thereby been disadvantaged in the circumstances in which they 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 their detriment is a reasonable one to hold, that ought to suffice. While an unjustified sense of grievance about an allegedly discriminatory act cannot constitute detriment, a justified and reasonable sense of grievance may well do so (Shamoon).

[19]The provisions relating to burden of proof have been covered in the “Direct Discrimination” section above.

The facts

[20]The role of the Tribunal is to consider all of the witness evidence, and the documentary materials referred to, and form a view as to what is most likely to be the true position on the balance of probabilities. It is important to say that, simply because we may disbelieve the evidence of a witness on a particular point, does not mean that we consider they are deliberately seeking to mislead – nor does it mean we must automatically disbelieve them on other points. Ultimately, we have to weigh up all the evidence on all different points and assess it on its merits.

[21]It is appropriate to make some high-level comments about the evidence.

[22]We considered that each of the Respondent’s witnesses were honest and straightforward in the answers they gave to the questions asked of them, and their evidence was materially consistent with the contemporaneous documents in the hearing bundle. One criticism that we do have of the Respondent is the lack of any notes of the conversation between the Claimant and Danielle Doran (of HR) on 9 January 2023. It is likely that written notes were made by Ms Doran of that conversation, yet were not apparently stored or retained after Ms Doran left employment with the Respondent. The fact the notes are missing is a factor we had to take into account when assessing the evidence of what was said at that meeting. In her closing arguments the Claimant also criticised the Respondent for not calling Kara Monteiro (the appeal manager) as a witness, but we do not accept that criticism. Ms Monteiro was not the relevant decision maker for dismissal and no specific allegations are pleaded in respect of the handling of the appeal, so it is understandable that the Respondent did not call her, even though she had some passing involvement at an earlier point in the chronology.

[23]We found that the Claimant was an unreliable witness. The overall impression that the Tribunal took from the Claimant’s evidence was that her narrative was prone to shifting from moment to moment, and new, unfounded, allegations emerged in the course of the proceedings (and particularly during oral evidence) in an attempt to paint a picture of a broad conspiracy against her. By way of some examples:a. The Claimant placed heavy reliance on WhatsApp messages she sent to friends during her employment to support her version of events, but when questioned as to why these WhatsApps did not cover key details provided wholly unconvincing explanations. E.g., on 7 January 2023 (the day she resigned), her friend ‘Cyrille Germany’ asked “You mentioned the biased attitude of the person training you. What was the issue? A bit of racism?” to which the Claimant responded “She’s been insecure that I’ll take her job… and because of this she’s refusing to let me do more to gain more experience” [399]. When asked why she did not say anything about racism in her response despite the specific prompt, the Claimant’s answer was that she didn’t want to say anything about that because ‘Cyrille Germany’ shares his phone with his wife, who is white, and she did not want her “rejoicing in my predicament”.

b. The Claimant alleged, without any basis, that Amit Sinha (who is mentioned in only one of the pleaded issues) had left employment with the Respondent specifically because of her Tribunal claim. It is inherently unlikely that Mr Sinha’s departure was in any way linked to the Claimant’s claim.

c. The Claimant alleged in her witness statement that Maggie Birch had claimed the Claimant’s qualifications were fake (this is not an allegation that is in the LOI) and that the Respondent had “gone back to rewrite their disciplinary procedures based on what Ms Birch reported”, in circumstances where it is entirely evident from the documents that amendments had been made to the Disciplinary Policy and Procedure on a group-wide basis managed by the Talent & Culture (HR) department [71].

d. The Claimant alleged in oral evidence that she had taken her sick note and shown it to Mr Chowdhury and Hilary Whiteside, the Cluster Talent & Culture Manager, at her dismissal meeting, despite this not being recorded in the minutes, not having mentioned this in her comments on the meeting minutes, not mentioning this in her appeal letter (despite twice mentioning the sick note in other respects), not raising it during the appeal meeting, nor at any point in the Tribunal proceedings prior to her oral evidence. Even aside from it not being mentioned earlier, it is inherently unlikely that a senior HR manager would not have intervened and at least considered stopping the dismissal meeting (and documented the same) if made aware the employee in question had been signed off as unfit for work.

e. The Claimant alleged in oral evidence (for the first time) that she considered Ms Monterio, the Cluster General Manager who heard the Claimant’s appeal against dismissal, was part of a wider conspiracy to get her out of the business and that she had raised this with her Trade Union representative prior to the appeal meeting, but that the representative had advised her to “go quiet”. It is incredible that if a client raised to a Trade Union representative (in this case, the GMB Branch Secretary [196]) that an appeal manager was potentially biased, they would have advised saying nothing about it.

f. The Claimant gave contradictory answers when asked about whether birthdays were celebrated for colleagues between January and May 2023 – initially answering “yes” in cross-examination, then “no” in answer to a question from the Judge, before seeking to argue there was no contradiction in the answers given.

[24]We therefore approached the Claimant’s evidence with a great deal of caution, unless corroborated by reliable contemporaneous evidence. In that respect we did not regard the Claimant’s diary as reliable contemporaneous evidence; we could have no confidence that it was a true record of events recorded at the time they happened.

[25]We have only made findings of fact necessary for the disposal of the live issues in this case. We have not referred to every document we have read and/or were taken to during the hearing, but have considered all such documents. We have not considered documents that were not referred to in the written or oral evidence or in submissions.

[26]The relevant facts are, we find, as follows. References to [x] are to pages in the hearing bundle.

[27]The Claimant, who identifies her race as Black African, commenced employment with the Respondent on 1 November 2022 as an Accounts Assistant [80]. Her appointment followed a first interview led by Judith Dagwell, an Assistant Financial Controller for the Respondent, and a second interview with Anwar Chowdhury, the Director of Finance. Ms Dagwell’s unchallenged evidence, which we accept, was that although the role did not require accounting qualifications, the fact that the Claimant had such qualifications indicated she would be a good fit, which is why Ms Dagwell had recommended the Claimant to Mr Chowdhury. The Claimant’s contract of employment was subject to a three-month probationary period [81].

[28]On her first day, Mr Chowdhury explained to the Claimant that her role would involve two types of task – Accounts Receivable (A/R) and Income Audit (I/A). The Claimant was initially placed under the supervision of Maggie Birch, an Accounts Supervisor, who was to train the Claimant on A/R tasks.

[29]Ms Birch had not been involved in the recruitment of the Claimant and had no information on the Claimant’s past experience prior to meeting her. Ms Birch accepts, and we find, that she asked the Claimant if she knew what A/R meant at the beginning of her training in early November 2022. We accept Ms Birch’s evidence that she did so with the purpose of trying to understand what the Claimant’s level of knowledge was before commencing the training. In the circumstances, it was a reasonable and understandable question for Ms Birch to ask and, we find, did not involve Ms Birch making any judgement about the Claimant’s race.

[30]The Claimant also alleges that early in her employment, on 4 November 2022 to be precise, Ms Birch said to the Claimant “I didn’t think people like yourself also work in accounts” and “To be honest I’ve only seen Asians in accounts, they’re known to be good with numbers, innit”. Ms Birch denied having made these comments. We find, on the balance of probabilities, these comments were not made. We considered Ms Birch a more reliable witness than the Claimant. Further, we gave weight to the fact that the first time these specific remarks were alleged to have been made was on 22 January 2024 (more than 14 months after they are alleged to have been made) in further information provided by the Claimant after the ET3 form was filed by the Respondent. This is in spite of the Claimant having had many opportunities to do so, for example in her 4-, 8- and 12-week review forms, her initial resignation email, her dismissal meeting, her appeal letter, her appeal meeting and in the ET1 claim form. It is also inherently unlikely that the comments were made for two further reasons:(i) the allegation is that they were said in an open plan office, yet other witnesses who were sat nearby (Ms Dagwell and Roxy Banea) denied hearing them and the Claimant brought no other corroborating witnesses, and

(ii) the comment about Asians in finance makes no sense on its face given that Ms Birch, Ms Dagwell and Ms Banea were all white and Ms Birch gave evidence, which we accept, that she had worked (and is presently working – as also confirmed by Ms Dagwell in her evidence) with black colleagues in accounts.

[31]The A/R tasks that the Claimant was required to undertake initially involved saving invoices, sending invoices to clients and updating spreadsheets with figures taken from invoices. The totality of the evidence is clear, and we find, that the Claimant struggled with these basic tasks from the outset of her employment.

[32]Several examples are in the bundle; one of these is provided at [394-397]. This shows an email chain in which Ms Birch sent invoices and an Excel spreadsheet to a client on 8 November 2022, and the client’s response included identifying multiple instances of discrepancies between the amounts shown on the invoices and in the Excel spreadsheet. Although the Claimant denied in her oral evidence that this was her work, because she was insistent that she did her first meaningful task only on 14 November 2022, that is not consistent with her email to the Respondent’s solicitors when attempts were being made to find these documents (where the Claimant suggested starting the search on 4 November 2022 [412]). We find this was the task referred to in LOI 1(a)(iii) and that the Claimant was responsible for the preparation of this Excel spreadsheet and the discrepancies identified by the client.

[33]The Claimant raises a specific allegation in respect of this task, which is that, because of the Claimant’s race, Ms Birch sent this work product to the client without checking it first, thereby resulting in the Claimant receiving adverse client feedback. Ms Birch accepted in evidence that she did not check the work line-by-line before sending it to the client. We find that she did not do so because it would have been unreasonable to expect her to do so – the task was a simple one that Ms Birch could reasonably expect the Claimant (or anyone else in her role, even with her limited experience) to complete accurately. As Ms Birch put it in oral evidence, if she was going to have to check line-by-line she “might as well have done it myself”. We reject the Claimant’s assertion, made in oral evidence, that Ms Birch did this deliberately in order to position herself to be able to give the Claimant negative feedback or to make the Claimant appear less competent. This is inherently unlikely, since the work product was sent to the client in Ms Birch’s name and therefore the adverse feedback from the client was directed at Ms Birch, not the Claimant, so any errors present reflected poorly on Ms Birch. We therefore accept Ms Birch’s evidence that this was not influenced by the Claimant’s race whatsoever.

[34]The Claimant had a “4-week review” scheduled for 2 December 2022, but this was conducted wholly via the completion of an online form rather than any meeting taking place. The Claimant recorded comments that were broadly positive about her experience to date, including: “I felt welcome, included and supported”, “Everyone in my department has been very willing to help me whenever I needed help or have questions” and “I’m confident with what I’ve been shown so far”. From the Respondent’s side, it was commented that “Overall she is performing okay but need to improve her confident so she can complete the task on the agreed time frame”. This comment is consistent with the evidence we heard from each of Ms Birch and Mr Chowdhury, and which we accept, that the Claimant struggled from the outset of her employment with completing her tasks in a timely manner.

[35]On 22 December 2022, Ms Birch reported to Ms Dagwell (her line manager) that the Claimant was still struggling with basic tasks, including not saving all invoices into the correct files, mistakes in spreadsheets and pace of work [108]. 36. 31 December 2022 was the Claimant’s birthday. It was not marked with the presentation of a card or any other celebration. The Claimant alleges this was because of her race. The Respondent’s position, advanced through the evidence of each of Ms Birch, Ms Dagwell and Ms Banea, is that a team decision was taken (by majority) in November 2022 not to celebrate team member birthdays anymore, because some members of the team had said they didn’t want this. When asked directly by the Judge whether any other birthdays had been celebrated after the Claimant’s before the end of her employment in May 2023, the Claimant confirmed there had not been (though Ms Dagwell acknowledged in her evidence that the practice has resumed since January 2025). On the balance of the evidence, we find that a team decision was made (by majority) no longer to celebrate birthdays, and this was a decision that was not influenced by the fact that the Claimant’s birthday was approaching nor by her race. It was a decision that affected everyone and with which the majority of the team agreed. Notably the Claimant made no complaint about her birthday not being celebrated prior to the end of her employment.

[37]The Claimant had an “8-week review” meeting on 6 January 2023, with Ms Dagwell and the other Assistant Financial Controller, Amit Sinha. In advance she completed a review form [109-112]. As at the 4-week review stage, the Claimant recorded comments that were broadly positive about her experience to date, including: “I’m confident in completing my daily and weekly tasks”, “What do you like the most? That help is there when I’m not sure about anything to do with completing tasks set.” The only concern the Claimant raised was in relation to her computer playing up. By contrast, the ‘reviewer responses’ identified some concerns, for example that the Claimant needed to be “asking for help when unsure instead of trying to figure out on own & taking a long time to complete tasks”, that she “needs to be more accurate, attention to detail still an issue as per 4 wk review”, that “further training [would be] dependent on getting current tasks correct”.

[38]The Claimant alleges that, during the meeting on 6 January 2023, she raised allegations that Ms Birch was racially biased against her, and that Ms Dagwell and Mr Sinha ignored those allegations. There is no sign in the review form that such allegations were made; by contrast, under “relationship with team” it is recorded that the Claimant was “getting on with other team members, no issues raised by Benabel during review”. Ms Dagwell denied the Claimant raised such allegations. We find, on the balance of probabilities, these allegations were not made in the meeting. We considered Ms Dagwell a more reliable witness than the Claimant. Further, we gave weight to the fact that the first time the Claimant alleged she had made these allegations against Ms Birch on 6 January 2023 was on 22 January 2024 (more than 12 months later) in further information provided by the Claimant after the ET3 form was filed by the Respondent. This is in spite of the Claimant having had many opportunities to do so, for example in her initial resignation email (sent the following day), her dismissal meeting, her appeal letter, her appeal meeting and in the ET1 claim form. It is also inherently unlikely that the Claimant made these allegations to Ms Dagwell and Mr Sinha and yet neither of them took any action.

[39]Following the 8-week review meeting, the Claimant decided to resign her employment. She sent an email to Mr Chowdhury on the morning of Saturday 7 January 2023 in the following terms [120]: “Dear Anwar, Please accept this email as my notice to leave as required in my contract of employment. Thank you for the opportunity to join your team. I have enjoyed my role but due to the misunderstanding surrounding my training and the biased attitude from the person training me, I wish to discontinue with my training and leave. Regards, Benabel Marston”

[40]Although the Claimant pointed to a number of contemporaneous WhatsApp text and voice messages with friends as being relevant to her mindset at this time, none of those materials give an insight into what she meant by “biased attitude”. We have already addressed her messages with ‘Cyrille Germany’ above. As already noted above, we could not rely upon the Claimant’s diary entries as reliable evidence.

[41]Mr Chowdhury forwarded the Claimant’s email the following day to Danielle Doran, Talent & Culture Coordinator, copied to Milan Horvath, the Group Talent & Culture Manager, and Kara Monteiro, the Cluster General Manager in the following terms [119]: “Hi Danielle, Please see below email from Benabel. Her 8 weeks review was done on 6th January'23. Judith and Amit raised their concerns about mistakes and taking all day just to save and send the AR invoices. They agreed further training will be provided and progress will be reviewed after two weeks. Benabel was working with Maggie and training was provided but she was struggling to cope. Please process her as a leaver. @Milan - please advise, do I need to reply to her email . Regards Anwar”

[42]Ms Monteiro responded within an hour [119]: “Thanks Anwar I am concerned about Benabel's comments in her resignation letter, I would like her to be contacted please by T&C and a conﬁdential conversation to happen to understand her comments regarding the misunderstanding surrounding her training and biased attitude. Please can you update me once we have spoken with her. Thank you K”

[43]Conversations duly took place between the Claimant and(i) Mr Chowdhury and

(ii) Ms Doran on 9 January 2023. There is a dispute as to the order in which the conversations happened and what was said.

a. The Claimant’s account is that she spoke first with Mr Chowdhury, that she explained she believed Ms Birch to have been racially biased against her and mentioned the alleged remarks of 4 November 2022, and that in response Mr Chowdhury criticised the Claimant for raising allegations of racial bias. She then requested a private meeting with HR, and met with Ms Doran to whom she provided a detailed account of her experiences with Ms Birch, including the alleged remarks of 4 November 2022. Ms Doran reassured the Claimant that she would investigate her concerns regarding racial bias, that she would ask Mr Chowdhury to reassign the Claimant to a different trainer, would ensure a proper training plan was in place, and asked the Claimant to rescind her resignation, which the Claimant duly did. Ms Doran then sent her home for the rest of the day.

b. The Respondent’s account (through the evidence of Mr Chowdhury) is that the Claimant spoke first with Ms Doran. Ms Doran then reported to Mr Chowdhury that the Claimant’s complaints were about her training. Mr Chowdhury then spoke with the Claimant, who confirmed to him that by “biased attitude” she was referring to Ms Birch not showing her things properly and not giving her enough time to take notes when being trained. Mr Chowdhury assured the Claimant that a written training plan could be put in place to ensure all necessary training was properly delivered by Ms Birch and understood by the Claimant, and on that basis the Claimant agreed to rescind her resignation.

[44]No notes of these conversations are available – as mentioned already, Ms Doran’s notes have not been retained; Mr Chowdhury confirmed in oral evidence that he did not take any notes of this conversation. There is a contemporaneous email from Ms Monteiro, sent on the afternoon of 9 January 2023 [121]: “Hi, I had a catch up with Danielle and Helen regarding Benabel, I am sure they will ﬁll you in on details sadly not great…Anwar is speaking with Judith and Maggie, on a positive note Benabel has agreed to stay and will have a review in 4 weeks. I spoke with Anwar as well that we need to investigate these type of resignations and comments in the future and not just accept. Thks”

[45]There are also messages sent by the Claimant to a friend, ‘Jackie Church’, on the evening of 9 January 2023 giving an account [401]: “Hey girl, you won’t believe what happened at work today. Like you rightly put it yesterday they tried to convince me to stay. The director started persuading me to stay from 9am, I firmly said no! By 9.20 ish he called another manager, I stuck to my guns and said no! they then called HR then the CEO…. I liked the fact that HR & CEO admitted that they suspected my supervisor was holding me back… they’re going to do reshuffle.. at this point it was 12pm and they’re still asking me to reverse my notice… I couldn’t carry on saying no as it would not look professional as they went above and beyond to make changes to keep me. So I ended up saying yes I’m disappointed that I said yes be my mind was already set to be free”

[46]Notably, though, the Claimant’s own messages do not suggest the director (Mr Chowdhury) criticised the Claimant for raising an allegation of racial bias – indeed, the messages don’t mention racial bias at all. The reference to “the CEO” intervening are also inconsistent with the Claimant’s own evidence to the Tribunal.

[47]Ms Birch also gave evidence to the Tribunal that, the following day, she was told by Mr Chowdhury that the Claimant had complained she was not happy with the training Ms Birch had provided her, that Mr Chowdhury asked Ms Birch to apologise to the Claimant (which she did, despite not understanding what she was meant to be apologising for), and that Ms Birch also spoke to Ms Doran who confirmed to her that she had not done anything wrong and that there would be no internal investigation.

[48]Considering all of the evidence, we find, on the balance of probabilities, that Mr Chowdhury’s account of the events of 9 January 2023 is the correct one. We considered Mr Chowdhury a more reliable witness than the Claimant. Further, we gave weight to the fact that the first time the Claimant’s version of events was put forward was on 29 April 2024 (more than 15 months later) in further information provided by the Claimant shortly prior to the first Preliminary Hearing in these proceedings. This is in spite of the Claimant having had many opportunities to do so, for example in her 12-week review form, her dismissal meeting, her appeal letter, her appeal meeting and in the ET1 claim form. Accordingly, we find that Mr Chowdhury did not criticise the Claimant for raising issues of racial bias, because the Claimant did not, in fact, raise issues of racial bias with Mr Chowdhury or Ms Doran. Further, we find that (consistent with Mr Chowdhury’s account) there was no agreement to assign the Claimant a trainer other than Ms Birch – it is inherently unlikely that would have been offered since Ms Birch was the member of the team responsible for A/R so there would have been no other obvious candidate to take on the role of trainer on A/R tasks. Consistent with this, we accept Ms Birch’s account of the conversations she had with Mr Chowdhury and the Claimant on 10 January 2023.

[49]Following the retraction of her resignation, Mr Sinha met with the Claimant and prepared a training plan in respect of A/R tasks. The Claimant reviewed this and signed the areas she agreed that she had been trained on [124- 125]. Not every entry in the training plan was signed off – this is because, consistent with the notes of the “8-week review”, training on more complicated tasks had been held back whilst the Claimant was struggling with the basic tasks.

[50]The Claimant continued with her A/R work, under Ms Birch, without complaint. It is evident that she continued to make mistakes (examples can be seen at e.g. [126-134] and [139-140]). Nevertheless, by the time of her “12-week review” on 31 January 2023 she had progressed sufficiently for Mr Chowdhury to pass her probation. Relevant content of the review form was as follows [135-138]: “How do you feel about your role after three months? Reviewer response: There was some challenges and training was given to her. Banabel has improved and understand what to do daily Learner response: I do enjoy my role and I’m still learning new things. How do you feel about rota/work schedule and volume of work? Reviewer response: She is managing her daily tasks on time and taking additional responsibility to help income audit Learner response: The rota is good and workload is manageable. How do you feel about your training and development at this stage? Learner response: I have developed confidence, new ways of managing time and workload as well as learning new topics. My training has progressed more in the last two weeks than it did in the first 8 weeks. […] How is your relationships with your team members and managers? Learner response: I believe I have good working relationship with both my colleagues and managers. I feel comfortable to joke and laugh with them and show respect at the same time. How do you feel about your performance? Reviewer response: Overall performance has improved and it is satisfactory Learner response: I believe my performance has improved since my last 8 weeks review. […]”

[51]As noted in the above, from around late January 2023, the Claimant began training on I/A. Her primary trainer for these purposes was Ms Banea who, like the Claimant, was a Finance Assistant but had joined around 5 months before the Claimant. Aside from I/A, Ms Banea also had responsibility for cashier work at one of the cluster hotels each morning, but did not work on A/R.

[52]By April 2023, the I/A training had been completed, and later that month a training plan was prepared and signed off by the Claimant to confirm the same [145-146].

[53]It is evident that, despite full training having been provided on I/A, as was the case with A/R, the Claimant struggled with basic tasks. Some examples included leaving MICROS payments not reconciled when these needed to be investigated on the day [142], not accurately recording figures in spreadsheets [144,147] and saving invoices in the wrong place [152]. Ms Banea was sufficiently concerned to raise her concerns with Mr Chowdhury [147], who asked Prasantha Kasadoruge, the Assistant Financial Controller, to try to assist the Claimant.

[54]The Claimant alleges that during this period (from the rescinding of her resignation to May 2023) she was given mundane tasks, not given autonomy, not given access to necessary accounting software, training was withheld from her, and she was given tasks for which she was not trained. Our factual findings in this regard are as follows:a. The Claimant was given tasks that were consistent with her job description. On her own account, the tasks the Claimant describes as “mundane” were “checking invoices, scanning them, saving them, and forwarding them to clients”, but these were, we find, all part-and-parcel of the role of a Finance Assistant. Ms Birch confirmed in her evidence (as did Ms Dagwell), which we accept, that these tasks that Ms Birch had to do herself also.

b. As regards lack of autonomy, the Claimant’s evidence aligned this allegation with only being given basic tasks to do, so it is addressed under point a). As we have set out in our findings above, whilst she had shown improvement between the 8- and 12-week review, once she had also begun working on I/A as well as A/R, the Claimant’s performance was not satisfactory, so it is understandable that she was not assigned the more complex tasks – the problem was that she was still struggling with the basics.

c. The Claimant was provided with all of the access that she needed to accounting software. A particular issue was raised regarding access to ‘Opera’, but (as the Claimant herself acknowledged in the course of her appeal meeting) she did not require daily access to ‘Opera’ to complete her tasks – rather, Ms Birch or Ms Banea (who held the only two licences for ‘Opera’ access at the time) would extract the reports necessary for the Claimant to complete her work. As an alternative, there was consistent evidence that the Claimant was permitted to use Ms Banea’s log-in when Ms Banea was off-site prior to 11am each morning doing her cashier work.

d. The Claimant was trained comprehensively on I/A (as recorded in the training plan) and, to the extent that certain tasks were not trained in respect of A/R, that was (as already noted) because training on more complicated tasks had been held back whilst the Claimant was struggling with the basic tasks.

e. The one example the Claimant pointed to as an example of her being given a task for which she was not trained to do did not appear to be a task directed to her [150] (the Claimant identified a duplicated revenue for which a rebate was required and sought approval, the approval was given and the task to create the adjustment in Opera allocated to Ms Banea). We accept Ms Birch and Ms Dagwell’s evidence that the Claimant had received training for all the tasks she was asked to do.

[55]On 5 May 2023, the Claimant reached out by email to Sohee Min, a Talent & Culture Advisor, in respect of a Finance Assistant role at another of the Respondent’s hotels [158]: “Good morning, I’m interested in the position of Finance assistant which is being advertised at Luton Hoo. Please advise me of the process to follow as I’m currently working in Finance Department as an employee of the Arora Group Hilton Gatwick South Terminal. I have not had this conversation with my line manager yet but I thought it’s best to contact you ﬁrst. I have been with the Company for over 6 months now. Regards, Benabel Marston”

[56]The Claimant’s query was responded to by another Talent & Culture Advisor, Helen Hedlund the same morning [159]: “Good morning Benabel, I hope you are well If you are interested in the position at Luton Hoo then it is the Internal transfer process we need to follow. I have attached the policy and form for this to this email. Please have a talk with you line manager and contact Luton Hoo to the possibly arrange a meeting with them. If you have any questions please let me know. Wishing you a lovely weekend Most kindly”

[57]The Internal Application Policy is at [57-61]. Among other things, it provided that employees must be in their current role for 6 months to be eligible to apply for a new role (12 months for managers) and that employees would need to discuss with their line manager first. In the transfer form, the line manager was required to complete two fields, one of which was to “Describe employee’s current performance”.

[58]It is common ground that the Claimant did then approach Mr Chowdhury to request a transfer to Luton Hoo on 9 May 2023, and that Mr Chowdhury refused the request. We accept his evidence that he did so for two reasons: first, because her performance was not up to the required standard and, second, he (wrongly) believed that the Claimant needed 12 months’ service. It is clear from the contemporaneous emails that Mr Chowdhury was already contemplating taking action in respect of the Claimant’s performance (see, in particular, his email to Hilary Whiteside, Cluster Talent & Culture Manager of 9 May 2023 but referencing a “conversation on last Friday regarding Benabel’s performance” [161]), which lends support to Mr Chowdhury’s account of his reasons. We also reject the Claimant’s assertions made in oral evidence (but at no point earlier) that Mr Chowdhury’s decision was part of some wider conspiracy involving Ms Monteiro and members of the Talent & Culture team to manage her out of her role. This allegation had no basis whatsoever in the facts.

[59]As noted above, the Claimant’s performance issues had reached a point where, on 9 May 2023, Mr Chowdhury sought advice from Ms Whiteside as to what steps should be taken. He prepared a list of issues that had been collated from feedback provided by various members of the team, specifically Ms Birch, Ms Banea and Mr Sinha [162-163].

[60]The Claimant was duly, on 11 May 2023, invited to an “Employment Review Meeting” to take place on 15 May 2023. The invite letter [164] identified the issues to be discussed, specifically “Quality of Work”, “Following instruction” and “Not raising issues in a timely manner”, attached Mr Chowdhury’s list of issues and relevant company policies, noted that the Claimant was entitled to be accompanied by a colleague or trade union representative, and informed the Claimant that as a result of the meeting her employment may be terminated.

[61]The meeting duly took place on 15 May 2023, with Mr Chowdhury chairing and Ms Whiteside present as notetaker. The Claimant attended alone. We have already addressed, and rejected, the Claimant’s allegation that she had taken her sick note and shown it to Mr Chowdhury and Ms Whiteside at this meeting. Ms Whiteside’s notes of the meeting are at [165-168], and the Claimant subsequently provided comments where she did not feel the notes articulated points the way she answered them [181-183]. Subject to those comments from the Claimant, we find Ms Whiteside’s notes are an accurate reflection of the meeting.

[62]The notes demonstrate that the issues raised were discussed at length, that the Claimant was given the opportunity to put forward her position and that Mr Chowdhury engaged with the Claimant on her explanations. Notably, the Claimant accepted that her work “is not up to standard” [165,182], but sought to excuse that by saying e.g. that she was receiving conflicting instructions, had too high a workload, only recently had been given necessary access to IT systems (Opera) and had had problems with both of her trainers (Ms Birch and Ms Banea).

[63]The notes also reflect that Mr Chowdhury told the Claimant that he had verified for himself that the issues raised by Ms Birch, Ms Banea and Mr Sinha were genuine ones – he repeated this in evidence, and we accept it.

[64]The notes show there was no mention of any “racial bias” against the Claimant; indeed, at one point the Claimant said “I did raise an issue with my first trainer and that has been dealt with” [168,185], which is wholly inconsistent with the allegations the Claimant has raised against the Respondent in these proceedings concerning the conduct of Ms Birch and how it was dealt with.

[65]Following the meeting, Mr Chowdhury decided to dismiss the Claimant. His outcome letter [179-180] was sent on 16 May 2023, terminating the Claimant’s employment with immediate effect (and paying 4 weeks’ pay in lieu of notice). The reasons for the decision to dismiss were set out in the letter as follows: “As you are aware, this meeting was held in relation to the following issues:  Quality of Work  Following instruction  Not raising issues in a timely manner We discussed the matter fully in the meeting. The organisation has considered all the evidence before it and has taken your explanations into account. You have received emails detailing issues raised, were aware there were concerns and agreed that you have been struggling to grasp some of the parts that are fundamental to your role. While we listened to your representations, the organisation was not able to find any mitigating factors for a lesser sanction.”

[66]Mr Chowdhury maintained in evidence that the outcome letter accurately reflected his reasons for deciding to dismiss the Claimant and that he was not influenced by the Claimant’s race. We accept that evidence. There is ample documentary evidence underpinning the Claimant’s performance issues and, indeed, the Claimant acknowledged herself that her performance was not up to standard.

[67]The Claimant appealed her dismissal by a letter dated 29 May 2023 [188- 189]. The letter addresses each of the three issues identified in the dismissal letter, and concluded with the following paragraph: “My treatment and subsequent dismissal were discriminatory against my race. I am the only Black woman in ﬁnance department and the only one treated less favourably than my other colleagues. If a white colleague were in my position, they would have had lesser sanctions and they would have retained their job.”

[68]The appeal meeting took place on 14 June 2023, chaired by Ms Monteiro accompanied by Ms Hedlund as notetaker. The Claimant was accompanied by a trade union representative, the GMB branch secretary, Peter Raven. The notes of the meeting, of which the Claimant has made no criticism and we accept as accurate, are at [196-200]. The grounds of appeal were discussed in detail. Further, Ms Monteiro sought to explore what the Claimant meant by the last paragraph of her appeal letter. The relevant exchanges were as follows (K is Ms Monteiro; B is the Claimant): “K: You mention being the only black woman? B: I was the only Black woman in the office and I was treated differently. They were petty and minor. For my birthday I got nothing, everyone else got a card and snacks. Judith got a card and Maggie too but me nothing they said they had stopped doing it. The daily friendlies asking about family and kids no one asked me about me. I would go to the carpark to collect myself. I stopped going to lunch with them. I went to the carpark; it made me sad. K: Emotions are human and normal. B: The mood in the office was not good. Carparking men came and ask if I was ok and I said I was ok and having a breather. I was feeling dumb, treated like I was wrong. I came in early. I went out to plan my day. I did not go for lunch. They saw I was not being happy. Anwar saw this and was not happy. Judith did look happy when she saw what was happening to me. When the changes to Emirates happened, I asked how we were to do this. I was shut down I was doing it every week but then Maggie took over and did it all. They said I should go and work at the Head Office instead. That it would be more suitable as I have a background in bank reconciliation. There is not enough work here for 2. I was not able to plan and do the task. I was not able to. Maggie let me do the admin side of it. She would half train me and then expect me to do the full task or fully train me and then do it herself anyway. 365 income audit. Why not let me do the tasks I am strong in? They were looking and searching for errors and faults and mistakes and shouting across the room. If there was mistakes with the invoices it would be that I was given titbits and not the full task. Vueling – Was the first task, Maggie sent the sheet with out first checking this and it was therefor sent with mistakes. From day one the trainer was undermining me. When did it all start, It came with he new system. I did print out the emails but could not take them due to GDPR. When pointing the problems out Judith would say: Do not get on your high horses with my trainer hearing this. No one had the time to look closely. Why was I monitored so harshly? For being a black woman? Was I so bad for 6 months. Do they think I am thick? I mentioned in my contract, my job description should have been given by my manager. They should give me time to show if I am struggling. K: Did you get a job description? B: Yes I was given one. K :So some of the things in your job description is different from the training? B: Some tasks was flexible by the manager. I did need more in-depth knowledge for the task at hand. Is it wrong to delve deeper, to understand whey things work in they way they do in the departments? It did not help me and my mental health was struggling. I was being micromanaged. And I was the only black woman in the office. K: Have you had any other racial abuse made towards you? B: No. Roxy and Maggie have been friends a long time. They are all connected in one way its like a little family. I said to Anwar and Judith that I wanted to highlight the wrongdoings. I could not leave the job as I have bills to pay.”

[69]Notably there is no allegation made about racist words being used by Ms Birch in November 2022, nor that the Claimant had complained about Ms Birch’s “racial bias” in January 2023 but nothing had been done about it and she had been targeted for detrimental treatment as a result. Given she was represented by a trade union representative, we can fairly infer that she was properly advised to raise all pertinent issues, so the omission of these points undermines her allegations in these proceedings.

[70]Following the appeal meeting, Ms Monteiro asked Harish Sunassay, General Manager at the Arora Hotel Gatwick, to investigate the Claimant’s allegations made in the appeal meeting. Mr Sunassay interviewed Ms Birch, Mr Chowdhury, Ms Banea, Mr Kasadoruge, Mr Sinha and Ms Dagwell [169- 177,201-205]. The evidence gathered was taken into account in Ms Monteiro’s outcome.

[71]The outcome letter was sent on 28 June 2023 [207-209]. Ms Monteiro upheld the decision to dismiss and provided detailed reasoning for doing so. She also concluded that she could find no evidence of bullying or discrimination in any form.

[72]The Claimant commenced ACAS Early Conciliation on 13 July 2023. The EC Certificate was issued on 24 August 2023 [10]. The claim was presented on 23 September 2023 [11]. Application of the law to the facts Victimisation (LOI 6-9)

[73]We can deal with this complaint relatively briefly. The first issue (which is a gateway issue for this complaint) is LOI 6: Did the Claimant do a protected act of alleging racial bias against Ms Birch at the Claimant’s 6 January 2023 review meeting?

[74]The answer to this issue is ‘no’. We have found as a fact that the Claimant did not make an allegation of racial bias at that meeting. Further, her resignation email of 7 January 2023 referred to a “biased attitude” on the part of Ms Birch, but that cannot properly be understood (without more) as an allegation of discrimination rather than simply a criticism of Ms Birch. We have also found on the facts that the Claimant did not make an allegation of racial bias in her conversations with Ms Doran or Mr Chowdhury on 9 January 2023. Rather, insofar as the Claimant complained about Ms Birch, it was in respect of the training she had provided the Claimant. That is consistent with what the Claimant said in her dismissal meeting on 15 May 2023 (“I did raise an issue with my first trainer and that has been dealt with”). Our reasoning for those factual findings has been set out above.

[75]Accordingly, on our findings, the Claimant did not raise an issue of discrimination at all until her appeal letter against dismissal on 29 May 2023. Since that act post-dates all of the detriments to which the Claimant says she was subjected, it cannot be the foundation for a complaint of victimisation.

[76]The complaints of victimisation are therefore not well-founded and are dismissed. Direct race discrimination (LOI 1-5)

[77]We will take each alleged less favourable treatment in turn and address the further sub-issues as they arise. LOI 1(a)(i): Did Ms Birch (the Claimant’s supervisor) on 4 November 2022, say to the Claimant “I didn’t think people like you worked in accounts” and “I’ve only seen Asians in accounts”?

[78]We have found as a fact that this did not happen. Our reasoning for that The other issues therefore do not arise in respect of this allegation. LOI 1(a)(ii): Did Ms Birch (the Claimant’s supervisor) on 7 November 2022, ask the Claimant the very basic accounting question “Do you know what A/R [Accounts Receivable] is?”?

[79]Ms Birch accepted, and we have found, that she asked the Claimant if she knew what A/R meant at the beginning of her training in early November 2022. However, we also accepted Ms Birch’s evidence that she did so with the purpose of trying to understand what the Claimant’s level of knowledge was before commencing the training and have made a positive finding on the evidence that the asking of this question did not involve Ms Birch making any judgement about the Claimant’s race. This was therefore not less favourable treatment because of the Claimant’s race.

[80]Even had we not made that positive finding, we would have found that the facts to support the assertion that, in asking this question, Ms Birch was in anyway influenced by the Claimant’s race. LOI 1(a)(iii): Did Ms Birch (the Claimant’s supervisor) on 14 November 2022, fail to check the Claimant’s work (given it was only the Claimant’s second week), resulting in the Claimant receiving adverse client feedback?

[81]Save that the relevant date was 8 November 2022 rather than 14 November 2022, Ms Birch accepted in evidence that she did not check the work lineby-line before sending it to the client. We found that she did not do so because it would have been unreasonable to expect her to do so. We also found that Ms Birch did not do this deliberately in order to position herself to be able to give the Claimant negative feedback or to make the Claimant appear less competent, and accepted Ms Birch’s evidence this was not influenced by the Claimant’s race. This was therefore not less favourable treatment because of the Claimant’s race.

[82]Even had we not made that positive finding, we would have found that the facts to support the assertion that, in sending the work to the client in her own name without checking it first, Ms Birch was in anyway influenced by the Claimant’s race. LOI 1(b): On 31 December 2022, did Ms Dagwell (Assistant Financial Controller) fail to acknowledge the Claimant’s birthday with a card?

[83]We have found that the Claimant’s birthday was not marked with the presentation of a card or any other celebration, and found that this was because a team decision had been made no longer to celebrate birthdays, and that this was a decision that was not influenced by the fact that the Claimant’s birthday was approaching nor by her race. It was a decision that affected everyone and with which the majority of the team agreed. This was therefore not less favourable treatment because of the Claimant’s race.

[84]Even had we not made that positive finding, we would have found that the facts to support the assertion that not celebrating the Claimant’s birthday was in anyway influenced by the Claimant’s race. Indeed, the decision was not related to the Claimant in any specific way at all. LOI 1(c): On 6 January 2023, did Ms Dagwell and Mr Sinha (both Assistant Finance Controllers) fail to listen to the Claimant’s allegations of racial bias against Ms Birch?

[85]We have found as a fact that the Claimant did not make an allegation of racial bias at the meeting in question. Our reasoning for that factual finding has been set out above. It is a positive finding on the evidence, without any need to engage with the burden of proof provisions. The other issues therefore do not arise in respect of this allegation. LOI 1(d): On 9 January 2023, did Mr Chowdhury (Director of Finance) criticise the Claimant for raising racial bias in her [subsequently rescinded] resignation letter?

[86]We have found as a fact that this did not happen. Our reasoning for that The other issues therefore do not arise in respect of this allegation. LOI 1(e): On 9 January 2023, did Mr Chowdhury and Ms Doran (HR) fail to deal with the Claimant’s racial bias allegations and fail to assign the Claimant to be trained by someone other than Ms Birch?

[87]There are two aspects to this complaint.

[88]We have found as a fact that the Claimant did not make racial bias allegations to Mr Chowdhury and/or Ms Doran, so there can be no question of them having failed to deal with such allegations. Our reasoning for that The other issues therefore do not arise in respect of that aspect of the allegation.

[89]The second aspect is the failure to assign the Claimant to be trained by someone other than Ms Birch. We have found that the Claimant was still assigned to work under Ms Birch in respect of A/R tasks following the rescinding of her resignation, and have found this was because Ms Birch was the member of the team responsible for A/R so there would have been no other obvious candidate to take on the role of trainer on A/R tasks. The Claimant has not discharged the burden of proving facts from which the facts to support the assertion that putting the Claimant back under the supervision of Ms Birch was in anyway influenced by the Claimant’s race. LOI 1(f): From 10 January 2023 until the Claimant’s dismissal, did Ms Birch(i) give the Claimant mundane tasks,

(ii) fail to give the Claimant autonomy in her work,

(iii) fail to give the Claimant access to accounting software,

(iv) withhold training from the Claimant, and

(v) give the Claimant tasks for which she was not trained?

[90]In respect of (i), we have found on the facts that the Claimant was given tasks that were consistent with her job description. On her own account, the tasks the Claimant describes as “mundane” were “checking invoices, scanning them, saving them, and forwarding them to clients”, but these were, we found, all part-and-parcel of the role of a Finance Assistant. This was not less favourable treatment compared to a hypothetical non-black Finance Assistant assigned to work on A/R tasks (in this regard, Ms Banea could not be a suitable comparator because she did not work on A/R). In any event, the Claimant has not discharged the burden of proving facts from which the tribunal could infer this was an act of discrimination. There is nothing in the facts to support the assertion that the scope of the tasks assigned by Ms Birch to the Claimant was in anyway influenced by the Claimant’s race.

[91]In respect of (ii), we have found on the facts that, once she had also begun working on I/A as well as A/R, the Claimant’s performance was not satisfactory, so it is understandable that she was not assigned the more complex tasks. This was not less favourable treatment compared to a hypothetical non-black Finance Assistant with the same performance issues as the Claimant (in this regard, Ms Banea could not be a suitable comparator because she did not have the same performance issues). In any event, the Claimant has not discharged the burden of proving facts from which the tribunal could infer this was an act of discrimination. There is nothing in the facts to support the assertion that the level of autonomy given to the Claimant by Ms Birch was in anyway influenced by the Claimant’s race.

[92]In respect of (iii), we have found on the facts that the Claimant was provided with all of the access that she needed to accounting software. This allegation is therefore not made out.

[93]In respect of (iv), we have found on the facts that the Claimant was trained comprehensively on I/A (as recorded in the training plan) and, to the extent that certain tasks were not trained in respect of A/R, that was because training on more complicated tasks had been held back whilst the Claimant was struggling with the basic tasks. This was not less favourable treatment compared to a hypothetical non-black Finance Assistant with the same performance issues as the Claimant (in this regard, Ms Banea could not be a suitable comparator because she did not have the same performance issues nor did she work on A/R). In any event, the Claimant has not discharged the burden of proving facts from which the tribunal could infer this was an act of discrimination. There is nothing in the facts to support the assertion that the withholding of training on more complex tasks by Ms Birch was in anyway influenced by the Claimant’s race.

[94]In respect of (v), we have found on the facts that the Claimant was not assigned tasks for which she was not trained. This allegation is therefore not made out. LOI 1(g): On 9 May 2023, did Mr Chowdhury refuse the Claimant’s request to transfer office locations?

[95]It is accepted that Mr Chowdhury did refuse the Claimant’s request to transfer office locations. We accepted his evidence that he did so for two reasons: first, because her performance was not up to the required standard and, second, he (wrongly) believed that the Claimant needed 12 months’ service. This was therefore not less favourable treatment because of the Claimant’s race.

[96]Even had we not made that positive finding, we would have found that the facts to support the assertion that the refusal of the transfer was in anyway influenced by the Claimant’s race. LOI 1(h): On 15 May 2023, at the Claimant’s Review Meeting, did Mr Chowdhury only take account of Ms Birch and Ms Banea’s feedback and not the Claimant’s?

[97]We have found on the facts that Mr Chowdhury did not only take account of Ms Birch and Ms Banea’s feedback – rather he verified for himself the mistakes they (and Mr Sinha) had reported, he allowed the Claimant to put forward her version of events and (as recorded in the outcome letter) he took account of what she had said. This allegation is therefore not made out. LOI 1(i): On 16 May 2023, was the Claimant dismissed?

[98]It is common ground that the Claimant was dismissed on 16 May 2023. We have found on the facts that the reasons for dismissal were as stated in the dismissal letter – i.e. the unsatisfactory quality of the Claimant’s work, her failure to follow instructions and her failure to raise issues in a timely manner. We have also found that the Claimant’s race was not an influence on the decision to dismiss.

[99]Even had we not made that positive finding, we would have found that the facts to support the assertion that the dismissal was in anyway influenced by the Claimant’s race. Conclusion on direct race discrimination

[100]None of the allegations of less favourable treatment because of race are made out.

[101]The complaints of direct race discrimination are therefore not well-founded and are dismissed. Approved by:

The facts

[1]By its Reserved Judgment sent to the parties on 1 August 2025, the Tribunal (myself plus lay members) unanimously found in favour of the Respondent in respect of the Claimant’s complaints of direct race discrimination and victimisation.

[2]The Respondent has applied for a costs order on the basis that the Claimant acted unreasonably in the pursuit of the proceedings and/or the complaints had no reasonable prospects of success. It relies in particular upon warning letters sent to the Claimant, settlement offers that were made, and the Tribunal’s finding that the Claimant raised at the final hearing “new, unfounded, allegations … in an attempt to paint a picture of a broad conspiracy against her". The fees and disbursements claimed amount to £17,323.01 exclusive of VAT.

[3]The Claimant resists the application. She argues that she pursued the claim in good faith genuinely believing she had been discriminated against and victimised, no point had been raised as to the case being misconceived at the preliminary hearing stage, her refusal of settlement offers was not unreasonable, and she was a litigant in person throughout.

[4]The Respondent requested that the application be determined on paper and, in her response, the Claimant said she was content for that approach to be taken. I am satisfied it is appropriate in the interests of justice and the furtherance of the overriding objective to determine the application on paper, and have done so based on the written submissions of the parties. Panel composition

[5]Under paragraph 3 the Practice Direction on panel composition in the Employment Tribunals dated 29 October 2024, in respect of matters which fall to be decided at or following a final hearing a judge will decide, having regard to the interests of justice and the overriding objective, whether the tribunal is to consist of a judge sitting alone or a full tribunal with lay members.

[6]In making that determination, I have regard to the Presidential Guidance on panel composition dated 29 October 2024, in particular paragraph 15 which reads: “Save where the Employment Appeal Tribunal has ordered otherwise in respect of a remitted case, it is likely to further the interests of justice and accord with the overriding objective to retain the same panel composition throughout, such that subsequent applications are considered by the tribunal that made the original decision on liability. However, it may be appropriate to dispense with members where the subsequent hearing is limited to matters of case management; to the calculation of complex pension loss; to adjustments for grossing-up for taxation purposes; or where an application for costs is based on behaviour preceding the liability hearing rather than during the hearing itself.”

[7]This is an application for costs that is largely based on behaviour preceding the liability hearing. To the limited degree that it is concerned with behaviour at the final hearing, the Respondent relies on factual findings already made by the Tribunal. In my judgement, it is appropriate in this case to dispense with members in furtherance of the interests of justice (in particular, to avoid delay and save expense), and I have therefore determined the costs application sitting alone.

The law

[8]Rule 74(2) provides (insofar as relevant): “The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,

(b) any claim, response or reply had no reasonable prospect of success, […]”

[9]In other words, there is a three-stage process. First, I must ask whether the Claimant’s conduct falls within rule 74(2); if so, I must go on to determine whether it is appropriate to exercise my discretion in favour of awarding costs against the Claimant; and if so, I must quantify the order (Rule 76).

[10]Rule 82 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to ability to pay.

[11]Costs orders in the Employment Tribunal are the exception rather than the rule: Yerrakalva v Barnsley Metropolitan Borough Council and anor

[2012] ICR 420

, CA at [7].

[12]The Employment Appeal Tribunal discussed the approach to applications under the predecessor of Rule 74(2) (then Rule 76(1)) in Radia v Jefferies International Ltd

[2020] IRLR 431

. HHJ Auerbach noted at [62-63] that: “The Tribunal may consider, in a given case, under (a), that a complainant acted unreasonably, in bringing, or continuing the proceedings, because they had no reasonable prospect of success, and that was something which they knew; but it may also conclude that the case crosses the threshold under (b) simply because the claims, in fact, in the Tribunal's view, had no reasonable prospect of success, even though the complainant did not realise it at the time. The test is an objective one, and therefore turns not on whether they thought they had a good case, but whether they actually did. … However, in such a case, what the party actually thought or knew, or could reasonably be expected to have appreciated, about the prospects of success, may, and usually will, be highly relevant at the second stage, of exercise of the discretion.”

The Judge provided guidance at [64] as follows:

[13]“This means that, in practice, where costs are sought both through the Rule 76(1)(a) and the Rule 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?”

[14]Matters of causation may be relevant, per Yerrakalva at [41]: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. [...]”

[15]The status of the Claimant as a litigant in person is a matter that the Tribunal must take into account, but is not determinative: AQ Ltd v Holden

[2012] IRLR 648

, EAT; Vaughan v London Borough of Lewisham

[2013] IRLR 713

, EAT. Discussion Stage 1: Conduct engaging Rule 74(2)?

Discussion

[16]The first step is to consider whether the complaints, objectively, had no reasonable prospects of success when they were brought. I cannot find that they did. These were intensely fact-sensitive matters that required an assessment of the evidence at the final hearing. Even if, on reflection, some of the allegations were very weak, I cannot say they had no reasonable prospects of success from the outset. Rule 74(2)(b) is not met.

[17]I must next consider whether anything changed during the course of the proceedings that meant it was unreasonable for the Claimant to continue to pursue her claim. The Respondent relies upon its correspondence with the Claimant in which it warned the Claimant her claim had no reasonable prospects of success and made settlement offers (without prejudice save as to costs) that were rejected. To summarise the chronology:a. The claim was presented on 23 September 2023.

b. The response was presented on 30 October 2023. On the same day, the Respondent’s representatives wrote a costs warning letter, identifying reasons why it said the claim had no reasonable prospects of success, and invited the Claimant to withdraw it.

c. The Claimant provided further information on 22 January 2024 and 29 April 2024.

d. A case management preliminary hearing took place on 7 May 2024. The record of that hearing does not indicate any particular consideration was undertaken of the merits of the Claimant’s complaints.

e. Disclosure was completed and evidence exchanged in the remainder of 2024.

f. In May 2025, the Respondent made an offer of settlement to the Claimant in the sum of £3,200. On 21 May 2025, the Claimant made a counter-offer of £45,000.

g. On 23 May 2025, the Respondent highlighted the problems posed by the Claimant’s contemporaneous WhatsApp exchanges (see paragraph 23.a. of the Tribunal’s Reserved Judgment which refers to these exchanges as important evidence) and the fact that the Claimant had obtained new employment less than a month after dismissal. It reiterated its offer of £3,200, to expire at 4pm on 30 May 2025. On 29 May 2025, the Claimant made a counter-offer of £42,000.

h. On 6 June 2025, the Respondent’s representative indicated the Respondent may be willing to pay £4,000. On 9 June 2025 (the day before the final hearing commenced), the Claimant reduced her offer to accept £35,000.

[18]In my judgement, the Respondent’s letter of 23 May 2025 was a key watershed moment. It drew attention to real evidential problems which fundamentally undermined the Claimant’s case. She ought to have realised from the content of this letter that her complaints were very likely to fail. Further, the letter offered her a very reasonable way to extricate herself from the case – an offer to settle of £3,200. Any reasonable person in the Claimant’s position, recognising the evidential difficulties her case faced, would have accepted that offer. Instead, on 29 May 2025, she rejected it.

[19]Accordingly, I find that the Claimant’s pursuit of the claim from 29 May 2025 onwards amounted to unreasonable conduct of the proceedings within the meaning of Rule 74(2)(a).

[20]Although it is not of any particular consequence, I also accept the Respondent’s submission that the raising by the Claimant of new, conspiratorial, allegations in the course of her oral evidence (see paragraph 23 of the Tribunal’s Reserved Judgment) also amounted to unreasonable conduct of the proceedings. These were allegations that no reasonable person in the Claimant’s position should have made. Stage 2: discretion

[21]I consider the following factors to be relevant to the exercise of the discretion in this case:a. That, as I have already found, the Claimant should have been aware at the time she rejected the Respondent’s settlement offer on 29 May 2025 of the evidential flaws in her case.

b. That the Claimant was a litigant-in-person. However, a lack of legal support does not materially change what the Claimant should reasonably have appreciated from what was being said in the Respondent’s letter of 23 May 2025.

c. The Claimant’s limited financial means. The evidence before us shows that she has an irregular income which is substantially devoted to covering her essential living expenses, and no savings.

[22]On balance, I am satisfied that this is an appropriate case in which to exercise my discretion to make an award of costs in respect of the period from 29 May 2025 onwards. Because of the Claimant unreasonably refusing to take account of the evidential flaws with her case and rejecting a very generous (taking account of those flaws) settlement offer, the Respondent was put to the cost of attending a final hearing and 5 days of Tribunal time were needed in order to decide the claim. The highly unreasonableness of the Claimant’s position weighs most heavily in the balance, and is enough in my judgement to invoke the exceptional remedy of making a costs award. The Claimant’s means will be accounted for at the quantification stage. Stage 3: quantification

[23]The costs claimed are under £20,000, so I can make an order myself (Rule 76(1)(a)).

[24]Limiting the Respondent’s costs to those incurred on or after 29 May 2025 reduces the sum claimed to £9,138.50 (exc VAT) in fees plus £398.51 (exc VAT) in disbursements. Although narrative entries have not been provided, the bulk of the fees relate to preparation for and attending the final hearing. I am satisfied that the sums incurred are reasonable and proportionate.

[25]In quantifying the award I will make, I need to balance the factors set out above, in particular the highly unreasonable approach of the Claimant against the Claimant’s financial means to come up with a figure that is fair and just. In my judgement, an award of £2,000 achieves an appropriate balance. It is a significant sum that recognises the Tribunal’s disapproval of the Claimant’s conduct, but makes a significant reduction from that which would otherwise be due in light of her limited financial means.

[26]Although this is not a matter for the Tribunal but for enforcement, if the Claimant does not consider that it is possible to pay the costs award as a lump sum, she would be well-advised to seek to agree a payment plan with the Respondent as soon as possible. Approved by: