Mr M Iqbal v CBVC Vehicle Management Ltd and Mr A Baker: 2600468/2024
EMPLOYMENT TRIBUNALS
Case No 2600468/2024
Between
Mr M IqbalClaimantCBVC Vehicle Management Limited (1) Mr Andrew Baker (2)Respondent
Before
Employment Judge BrewerIn person for claimantDate 6 June 2026
REASONS
[1]This case came before me for a two-day hearing. I had an agreed bundle of documents and witness statements from the claimant, the second respondent, Mr Manners, Managing Director of the first respondent along with several employees of the first respondent: Mr Nickson, Ms Stevenson, Ms Hayes and Ms Mayor.[2]At the conclusion of the evidence, I heard submissions from the parties.[3]I have taken all of this into account in reaching my decision.
Issues
[4]The claimant pursues a claim for direct race discrimination and harassment related to race.[5]The issue is a narrow one. It is whether a comment made by the second respondent amounted to less favourable treatment of the claimant because of race or amounted to harassment within the meaning of section 26, Equality Act 2010.
Law
[6]So far as direct discrimination is concerned the Equality Act 2010 (EqA) states at section13: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others…”[7]As to harassment, section 26 EqA provides: “26 Harassment(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.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(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…”[8]There is a large body of case law in relation to these claims. I set out here a summary of the key legal principles. Direct discrimination[9]In relation to direct discrimination, for present purposes the following are the key principles.[10]Under section 13 Equality Act 2010 (EqA), there are two issues:(a) less favourable treatment and(b) the reason for that less favourable treatment. These questions need not be answered strictly sequentially (Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337).[11]Given the treatment must be “less favourable” a comparison is required, and a comparator must “be 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” (Shamoon above).[12]The burden of proof is set out in section 136 EqA. The leading cases on the burden of proof pre-date the Equality Act (Igen Ltd v Wong 2005 EWCA Civ 142 and Madarassy v Nomura international Plc 2007 EWCA Civ 33, [2007] IRLR 246) but in Hewage v Grampian Health Board 2012 the Supreme Court approved the guidance given in Igen and Madarassy.[13]By virtue of section 136, it is for a claimant to prove on the balance of probabilities facts from which the Tribunal could conclude, absent any explanation from the respondent, that the respondent has discriminated against the claimant. If the claimant does that, the burden of proof shifts to the respondent to show it did not discriminate as alleged.[14]In Madarassy the Court of Appeal held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. This merely gives rise to the possibility of discrimination. Something more is needed. Any inference about subconscious motivation has to be based on solid evidence (South Wales Police Authority v Johnson 2014 EWCA Civ 73). Harassment[15]There are three essential elements of a harassment claim under S.26(1): 15.1. unwanted conduct, 15.2. that has the proscribed purpose or effect and 15.3. which relates to a relevant protected characteristic.[16]Mr Justice Underhill, then President of the EAT, expressed the view that it would be a ‘healthy discipline’ for a tribunal in any claim alleging unlawful harassment specifically to address in its reasons each of these three elements — Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT (a case relating to a claim for racial harassment brought under the Race Relations Act 1976 (RRA)). Nevertheless, he acknowledged that in some cases there will be considerable overlap between the components of the definition — for example, the question whether the conduct complained of was unwanted may overlap with the question whether it created an adverse environment for the employee. An employment tribunal that does not deal with each element separately will not make an error of law for that reason alone — Ukeh v Ministry of Defence EAT 0225/14.[17]The conduct does not have to be directed specifically at the complainant in order for it to be unwanted by him or her. The EHRC Employment Code gives the following example: during a training session attended by both male and female workers, a male trainer directs a number of remarks of a sexual nature to the group as a whole. A female worker finds the comments offensive and humiliating to her as a woman. She would be able to make a claim for harassment, even though the remarks were not specifically directed at her (see para 7.10).[18]If a claimant has made it clear, through words or conduct, that he or she personally has no objection to the conduct, that conduct will not be unwanted,[19]Conduct that is clearly not objected to will not be ‘unwanted’ even if most people would find the conduct in question unacceptable to the extent that it could be regarded as inherently unwanted.[20]Perhaps surprisingly, there are few cases examining precisely what is meant by violating a claimant’s dignity. In Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT, Mr Justice Underhill, then President of the EAT, said: ‘Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended’. Mr Justice Langstaff, then President of the EAT, affirmed this view in Betsi Cadwaladr University Health Board v Hughes and ors EAT 0179/13.[21]Some of the factors that a tribunal might take into account in deciding whether an adverse environment had been created were noted in Weeks v Newham College of Further Education EAT 0630/11. Mr Justice Langstaff, then President of the EAT, held that a tribunal did not err in finding no harassment, having taken into account the fact that the relevant conduct was not directed at the claimant, that the claimant made no immediate complaint and that the words objected to were used only occasionally. (However, he noted that tribunals should be cautious of placing too much weight on the timing of an objection, given that it may not always be easy for an employee to make an immediate complaint.) Langstaff P also pointed out that the relevant word here is ‘environment’, which means a state of affairs. Such an environment may be created by a one-off incident, but its effects must be of longer duration to come within what is now S.26(1)(b)(ii) EqA.[22]The meaning of the term ‘environment’ was considered in Pemberton v Inwood 2017 ICR 929, EAT, where P, a Church of England priest, was refused a licence that would allow him to take up a position as a hospital chaplain because he had entered into a same-sex marriage against the Church’s doctrines. The EAT upheld the tribunal’s decision that this was not unlawful discrimination or harassment, because a religious occupational requirement exception applied. But the EAT also noted that the tribunal had apparently failed to engage with the question whether the decision not to grant the licence and its communication created an ‘environment’. P argued that this could be inferred from the tribunal’s findings that the refusal obviously caused him stress, would have been humiliating and degrading for someone in his position, and was a stunning blow. However, the EAT found it hard to see that the tribunal had shown how it found that the requisite environment was thereby created.[23]A claim brought on the basis that the unwanted conduct had the purpose of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment obviously involves an examination of the perpetrator’s intentions. As the perpetrator is unlikely to admit to having had the necessary purpose, the tribunal hearing the claim is likely to need to draw inferences from the surrounding circumstances.[24]In deciding whether the conduct has the effect referred to in S.26(1)(b) (i.e. of violating a person’s (B) dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B), each of the following must be taken into account: 24.1. the perception of B, 24.2. the other circumstances of the case, and 24.3. whether it is reasonable for the conduct to have that effect.[25]The test therefore has both subjective and objective elements to it. The subjective part involves the tribunal looking at the effect that the conduct of the alleged harasser (A) has on the complainant (B). The objective part requires the tribunal to ask itself whether it was reasonable for B to claim that A’s conduct had that effect.[26]In Pemberton v Inwood 2018 ICR 1291, CA, Lord Justice Underhill, gave the following guidance: ‘In order to decide whether any conduct falling within subparagraph (1)(a) 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, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’
Findings of fact
[27]Given the evidence the findings can be stated very shortly.[28]On 4 October 2021 the second respondent, Mr Baker, used the term “Paki shop” during a conversation of whether a Scottish £20 note he had would be accepted locally. That comment was made conversationally and i am satisfied that the second respondent did not intend to offend anyone.[29]The claimant was in the room when the comment was made as were a number of other staff.[30]Mr Baker apologized for his comment directly to the claimant on the same day, and on the following day he sent an email to all staff apologizing more generally.[31]The claimant made no complaint about the comment until he resigned some 21 months later.[32]The claimant had no time off work for sickness or other absence related to the comment.[33]The claimant and Mr Baker continued to work together following the incident and by the claimant’s own evidence their relationship was and remained courteous and professional throughout the claimant’s employment.[34]The claimant went off sick on 11 May 2023.[35]The claimant raised a grievance on 7 June 2023, and he resigned on that date. His last day of employment was 5 July 2023.[36]The claimant entered early conciliation on 29 February 2024 and received his EC certificate on 4 March 2024.[37]The claim was presented on 14 March 2024. Discussion and conclusion[38]On one view there was no treatment “of” the claimant in the sense that the words were not aimed at him. That said, and as I have set out above, such ‘aiming’ is not strictly necessary for a claim of direct discrimination to be made out.[39]But it is nevertheless relevant that the comment was not about nor directed at or toward the claimant.[40]The claimant presented his case as very much one of harassment and key to my decision was the issue of whether he was offended which goes both to the issue of less favourable treatment (and of course any injury to feelings) and harassment.[41]It is also relevant that from his resignation letter it is clear that the claimant believed he was subjected to a number of difficulties in the workplace, none of them related to discrimination, save for the October 2021 incident, which he says caused him to resign.[42]The claimant relied very heavily on a medical report he had commissioned for the purposes of his claim.[43]The report starts at p.154 of the bundle. It is dated 5 July 2025, almost 4 years after the treatment he now complains about.[44]The salient parts of the report say that the claimant underwent ‘talking therapies’ between November 2023 and March 2024. It is unclear what was being talked about during that therapy, but I again note that this did not start until some 2 years after the incident.[45]The report does say that the claimant’s view was that the “primary precipitating factor for his psychological difficulties” was Mr Baker’s comment.[46]The report states that the “clinical opinion” is that the claimant’s difficulties are “closely linked to workplace related racial discrimination”.[47]With respect, that opinion, it is based upon an entirely self-reported and wholly clinically uninvestigated discussion between the clinician and the claimant in order to produce a report for the purposes of litigation. In that sense I find it no more persuasive than the claimant’s evidence given before me.[48]Balanced against this are the following factors: 48.1. the claimant did not complain about the comment at all between 4 October 2021 and 7 June 2023, some 21 months. The claimant said he was unable to complain but there is no credible evidence to support this. The claimant is educated and articulate and the respondent showed itself to be responsive given that it required Mr Baker to send the email to all staff I have referred to above. Even if the claimant felt that he could not complain immediately, if the comment was having the effect on him which he now asserts he cannot explain why it took him so long to raise the issue, 48.2. Mr Baker apologised to the claimant at the time and on any reading of the evidence the claimant accepted this, 48.3. the claimant and Mr Baker continued to work together until the claimant resigned and, on the claimant’s own evidence they maintained a courteous and professional relationship throughout, 48.4. the claimant had no time off relating to the incident.[49]The disjuncture between what the claimant apparently told his clinician and what he asserts in his evidence, and the contemporaneous facts are so at odds that I did not find the claimant to be a credible witness.[50]As I have set out above, in Richmond Pharmacology v Dhaliwal Mr Justice Underhill said: ‘Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended’.[51]It is also highly relevant that no complaint was made, and that the claimant continued to have the same relationship with Mr Baker before and after the incident.[52]I am entirely satisfied that this was a one-off comment, that no offence was intended and that the claimant was not the target.[53]The claimant has failed to show that his dignity was violated.[54]As to the environment, it must be proved that the comment by Mr Baker created an intimidating, hostile, degrading’ humiliating or offensive environment and to that end it is relevant that the conduct was not directed at the claimant and that he made no complaint.[55]Environment in the context of a harassment claim means an ongoing state of affairs, but as the claimant said as part of his grievance, this incident was the only one he could refer to as being in any way related to race. He has failed to show that the required environment was created by the comment.[56]In summary, I find that although the comment was made it did not amount to less favourable treatment of the claimant. I should add that even if I am wrong about that, it is clear that the claimant’s feelings were in no way injured.[57]I also find that the claimant has failed to make out his claim for harassment for the reasons set out above.[58]For those reasons the claims fail and are dismissed.