Ms S BegumClaimantToomey Motor Group LtdRespondent
Before
Employment Judge BrewerIn person for claimantMr M Hamid (instructed by Counsel) for respondentDate 25 March 2026
JUDGMENT
[1]The claimant’s claim for direct race discrimination fails and is dismissed.[2]The claimant’s claim for victimisation fails and is dismissed.
REASONS
[1]This case was listed for a 3-day hearing. In the event we concluded the evidence and submissions on day 1 and I delivered an oral judgment on day 2.[2]The claimant represented herself. She had previously been assisted by a solicitor but for reasons which are unclear that is no longer the case. The claimant had applied for this hearing to be postponed but that application did not succeed.[3]The respondent was represented by Mr Hamid.[4]I heard oral evidence from Mr Ammar Khan, General Sales Manager in Basildon, and Mr Terry Sadler, Operations Manager. They had provided written witness statements. 1 of 12[5]I also heard oral evidence from the claimant. She had not provided a written witness statement, but she was content for her grounds of complaint to stand as her evidence in chief and I allowed her to supplement that when she gave evidence.[6]I had a bundle of documents running to 97 pages and I heard brief submissions from both parties, all of which I have taken into account in reaching my decision.
Issues
[7]The agreed issues were as follows. Time limits 7.1. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 6 July 2024 may not have been brought in time. 7.2. Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 7.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 7.2.2. If not, was there conduct extending over a period? 49.1.2 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 7.2.3. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 7.2.3.1. Why were the complaints not made to the Tribunal in time? 7.2.3.2. In any event, is it just and equitable in all the circumstances to extend time? Direct race or nationality discrimination (Equality Act 2010 section 13) 7.3. The Claimant identified as being or Bangladeshi Nationality and/or race 7.4. Did the Respondent do the following things: 7.4.1. On 6 April 2024, Mr Khan reacted negatively by allowing his face to fall when he learned that the Claimant was a Bangladeshi national; and 7.4.2. On 6 April 2024 Mr Khan questioned whether the Claimant had a right to work in the UK; and 2 of 12 7.4.3. On 6 April 2024 Mr Khan told the Claimant that he was withdrawing the offer of employment because of her nationality and immigration status; and 7.4.4. On and after 6 April 2024 Mr Khan blocked the Claimant from contacting him on his telephone; and 7.4.5. On 6 July 2024 Mr Khan dismissing the Claimant summarily. 7.5. 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. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant has not named anyone in particular who they say was treated better than they were but relies on a hypothetical comparator of Pakistani origins. 7.6. If so, was it because of race/nationality? 7.7. Other than the dismissal, did the Respondent’s treatment amount to a detriment? Victimisation (Equality Act 2010 section 27) 7.8. Did the Claimant do a protected act as follows: 7.8.1. Complaining to Mr Sadler on 22 April 2024 about her treatment by Mr Khan? 7.9. It is accepted that the Claimant was dismissed for the purposes of Section 39 of the Equality Act 2010 7.10. Was the dismissal because the claimant did a protected act?
Law
[8]I set out here a brief description of the relevant law.[9]In relation to direct race 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). 3 of 12[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 decide, 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).[15]In determining allegations of victimisation three questions should be asked 15.1. did the alleged victimisation arise in any of the prohibited circumstances covered by the EqA? 15.2. if so, did the employer subject the claimant to a detriment? 15.3. if so, was the claimant subjected to that detriment because he or she had done a protected act, or because the employer believed that he or she had done, or might do, a protected act?[16]Section 39(4) provides that an employer (A) must not victimise an employee of A’s (B): 16.1. as to B’s terms of employment 16.2. in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training, or for any other benefit, facility or service 16.3. by dismissing B or 16.4. by subjecting B to any other detriment[17]Where it is not entirely obvious that the claimant has suffered a detriment, the situation must be examined from the claimant’s point of view (Chief Constable 4 of 12 of West Yorkshire Police v Khan 2001 ICR 1065, HL, Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL and Derbyshire and ors v St Helens Metropolitan Borough Council and ors 2007 ICR 841, HL).[18]To succeed in a claim of victimisation the claimant must show that he or she was subjected to the detriment because he or she did a protected act or because the employer believed he or she had done or might do a protected act. Where there has been a detriment and a protected act, but the detrimental treatment was due to another reason, e.g. absenteeism or misconduct, a claim of victimisation will not succeed.[19]I refer to other law below.
Findings of fact
[20]I make the following findings of fact.[21]The claimant is a Bangladeshi national although she has lived in the UK since childhood.[22]In early 2024 the respondent advertised for a Trainee Sales Consultant to be based in its Nissan showroom in Basildon. Mr Khan interviewed the claimant and offered her the role.[23]An employer must check specified documents to ensure that a job applicant is allowed to work for them in the UK before employing them. The employer must check that: 23.1. the documents provided are genuine, original and unchanged, and belong to the person who has provided them, 23.2. photos are the same across all documents and look like the applicant, 23.3. dates of birth are the same across all documents, and 23.4. if 2 documents give different names, the applicant has supporting documents showing why they are different, such as a marriage certificate or divorce decree.[24]If the applicant is not a British or Irish citizen, the employer also needs to check that: 24.1. the date for the applicant’s right to work in the UK has not expired, and 24.2. the applicant has permission to do the type of work being offered (including any limit on the number of hours they can work). 5 of 12[25]An employer can be sent to jail for 5 years and have to pay an unlimited fine if found guilty of employing someone who the employer knew or had ‘reasonable cause to believe’ did not have the right to work in the UK.[26]For these reasons the employment checks are taken seriously. Checks for British (and Irish) citizens are essentially identity checks. However, for others the checks include details about immigration status and can be more complex.[27]The checks for the respondent are carried out by its Human Resources Department.[28]When the claimant attended on 6 April 2024 to provide her paperwork for checking her right to work, which included her passport, for the first time it was apparent that her immigration status would have to be checked. 6 April 2024 was Mr Khan’s last day in the office before a period of leave abroad.[29]Knowing that the respondent could not employ the claimant until the checks were completed, he “withdrew” the offer of employment pending completion of the checks. The claimant had no issue with this and exchanged text messages with Mr Khan as follows: “Claimant: I know you need to do your checks but by law I can work for any company within the UK without any issues as I have settled status. Speak soon Mr Khan: Okay thanks Salma like I said I wish you had mentioned it before. As I discussed I have officially withdrawn the offer but should anything change I will be in touch should you wish to re accept. Claimant: Okay thanks no worries, I didn’t realise it was going to be a problem as I haven’t had any issues with it yet, I hope it’s okay as I would love to work in this role. I wait to hear from you. Thank you take care.”[30]While on holiday Mr Khan blocked the claimant’s number. He unblocked it on 14 May 2024.[31]On 22 April 2024 the claimant sent a long email to Mr Sadler making a complaint the key part of which is as follows: “I am writing you to you to make a formal complaint regarding how I have recently been treated when I came into Toomey to sign my contracts after being offered a permanent job as sales executive. I came into sign my contract and show my identity to show that I have the right to work in the UK. I was born of Bangladesh Heritage however I have been in the UK since I was a child I presented all of my documents to your colleague. Once he saw my passport was from Bangladesh he withdrew my job offer instantly and said that he would have to speak to HR. I believe because I am from Bangladesh his attitude towards me changed” 6 of 12[32]I find that this was a protected act for the purposes of the claim for victimisation.[33]Mr Sadler and the claimant spoke and then on 30 April 2024, Mr Sadler wrote to the claimant as follows: “Thank you for your email. As we discussed, I am currently investigating your previous email, to move forward can you please provide me with a copy of your passport and driving licence and confirmation of your right to work in the UK with any check code. Thank you in advance. Many thanks”[34]In the telephone conversation with Mr Sadler, the claimant did say that she might not feel comfortable working with Mr Khan. Mr Sadler explained that Basildon, where Mr Khan was the General Manager, was where the vacancy was. He also spoke with Mr Khan who confirmed he had no issue working with the claimant.[35]On 9 May 2024 Mr Sadler responded to the claimant as follows: “Thank you for your patience, I can confirm that I have checked all your paperwork that you have provided. I am really pleased to confirm that after review and some clarification, I am pleased to offer you the role as a Sales Consultant at Nissan Basildon. Can you please confirm when you would like to start at Toomey Motor Group, and I will arrange the necessary offer letter and paperwork. Many thanks”[36]Essentially, following the claimant’s complaint, instead of waiting for Mr Khan and HR to undertake the employment checks, Mr Sadler did so and confirmed the offer.[37]The claimant then made arrangements with Mr Khan to attend the workplace to sign her contract and deal with new starter documentation. There is an extensive exchange of text messages between the claimant and Mr Khan which show no signs of any concerns raised by the claimant, or indeed Mr Khan, about them working together.[38]After some discussion across various text messages, the claimant made an appointment to attend the workplace to complete the paperwork necessary before starting work. The appointment was for 11.30 am on 10 June 2024. She was 15 minutes late for that appointment. 7 of 12[39]The claimant’s induction took place on 2 and 3 July 2024. Mr Sadler took the initial training.[40]On 2 July 2024, the claimant was 10 minutes late for the induction course.[41]During his introduction to the training, Mr Sadler confirmed the importance of punctuality and that turning up on time was an important expectation of the respondent. In his evidence to the Tribunal Mr Sadler stressed that there was a zero-tolerance approach to lateness.[42]The claimant attended the induction on time on 3 July 2024 but was late returning from the lunch break.[43]On 4 July 2024 the claimant was scheduled to start work at 9.00 am. She arrived at around 9.45 am saying she had got lost.[44]On 6 July 2024, a Saturday, the claimant’s start time was 8.30 am, a matter she had been reminded about beforehand. In the event she was at least 15 minutes late.[45]As a result of the pattern of lateness, Mr Khan concluded that the claimant could not be relied upon and terminated her employment on 6 July 2024. A decision supported By Lee Pembroke, the respondent’s Brand Sales Director.[46]There was some further correspondence between the claimant and the respondent after 6 July 2024 but given that the last act complained of is the dismissal on 6 July 2024, I need not say anything about that.[47]The claimant commenced early conciliation on 5 October 2024. The early conciliation certificate was issued on 16 November 2024.[48]The claimant’s ET1 was presented on 16 December 2024.
Discussion and conclusions
[49]I shall deal first with time limits. Time limits[50]All of the complaints save for the dismissal are prima facie out of time. The first three allegations occurred on 6 April 2024. The fourth allegation is expressed as occurring “On and after 6 April 2024”, however, we know that the claimant was unblocked on 14 May, so even taking 13 May 2024 as the last date of that act, it is still out of time. However, I find that all these acts occurred on 6 April 2024 and the final act, the blocking of the claimant’s phone by Mr Khan was an act with a continuing consequence and not a continuing act per se.[51]The question arises therefore whether the acts complained of which occurred on 6 April 2024 form part of a continuing act with the dismissal on 6 July 2024 in order to bring the earlier acts in time. 8 of 12[52]The correct test for establishing a continuing act is found in Commissioner of Police of the Metropolis v Hendricks 2003 ICR 530, CA. The Court of Appeal made it clear that it is not appropriate for employment tribunals to take too literal an approach to the question of what amounts to ‘continuing acts’ by focusing on whether the concepts of ‘policy, rule, scheme, regime or practice’ fit the facts of the particular case. Those concepts are merely examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicia of ‘an act extending over a period’. The question is whether there was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.[53]In my judgment even though Mr Khan is a common factor, given the exchanges between him and the claimant, the professional, even cordial discussions about the claimant attending to sign the starter paperwork, it cannot be said that there was an act extending over a period. What occurred in April and July 2024 are distinct and separate acts. Thus, the 6 April complaints are out of time.[54]I could of course extend time for the 6 April acts. To do that, the test I have to apply is whether it is just and equitable to extend time.[55]In exercising the discretion to allow out-of-time claims to proceed, tribunals may have regard to the checklist contained in S.33 of the Limitation Act 1980 (as modified by the EAT in British Coal Corporation v Keeble and ors 1997 IRLR 336, EAT). S.33 deals with the exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice that each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case — in particular, 55.1. the length of, and reasons for, the delay, 55.2. the extent to which the cogency of the evidence is likely to be affected by the delay, 55.3. the extent to which the party sued has cooperated with any requests for information, 55.4. the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[56]In Department of Constitutional Affairs v Jones 2008 IRLR 128, CA, the Court of Appeal emphasised that these factors are a ‘valuable reminder’ of what may be taken into account, but their relevance depends on the facts of the individual cases, and tribunals do not need to consider all the factors in each and every case. 9 of 12[57]In Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5, the Court of Appeal upheld an employment judge’s refusal to extend time for a race discrimination claim presented three days late. It noted that the judge had referred to the factors set out in S.33(3) of the Limitation Act 1980, following Keeble. As to the first factor, the length of and reasons for the delay, the judge had been entitled to take into account that, while the three-day delay was not substantial, the alleged discriminatory acts took place long before A’s employment terminated, and that he could have complained of them in their own right as soon as they occurred or immediately following his resignation. As for A’s assertion that he had mistakenly believed that he could benefit from an automatic extension of time under the early conciliation rules, the judge was entitled to take the view that this did not justify the grant of an extension, given that A had left it until very near the expiry of the primary deadline to take advice and then chose not to act on that advice because he thought that the solicitors had misunderstood the position.[58]The claimant gave no explanation for the delay and in fact made no application for an extension of time despite this being the first issue set out in the agreed list of issues drafted as long ago as August 2025. She has, in the course of these proceedings, had legal advice.[59]I cannot account for the delay having heard all of the evidence and I do not, in the circumstances, consider it just and equitable to extend time.[60]Notwithstanding that decision, I think it appropriate to set out what would have been my judgment on those out of time matters in any event. Direct discrimination – 6 April events[61]I consider that the claimant was not a credible witness of fact about what took place on 6 April 2024 because the core of her complaint runs counter to the contemporaneous record.[62]In my judgment, she is a capable and articulate person well able to speak up for herself. Had Mr Khan said or indicated a racist motive for what he described as withdrawing the offer of employment he made to the claimant, in my view the claimant would have said so to him, would have ‘called him out’ if I may use that phrase, if not in person, then subsequently, in an email or by text. However, the text messages which followed the 6 April 2024 meeting between the claimant and Mr Khan, and following the withdrawal of the offer, were polite, cordial and professional.[63]The situation as characterised by the claimant, essentially that Mr Khan withdrew the offer because of the claimant’s Bangladeshi nationality, does not bear scrutiny.[64]The best view of what happened here is as follows: 64.1. right to work checks, not just identity checks, had to be carried out, 10 of 12 64.2. Mr Khan was taken by surprise that it was not simply an identity check which had to be done, but that immigration status also had to be checked and that is why he ‘withdrew’ the offer, and why he stated in his text message on 6 April “I wish you had mentioned it before”, 64.3. Mr Khan went on holiday on 7 April 2024, and in order not to be disturbed he blocked the claimant’s phone number, 64.4. whilst Mr Khan was away the claimant complained to Mr Sadler who dealt with the matter expeditiously, the checks were passed and the employment confirmed, 64.5. Mr Khan was content with that, and he and the claimant exchanged messages dealing with, and indeed met to deal with completion of preemployment documentation during all of which there were no issues or concerns between them.[65]Nothing in any of this suggest any discriminatory motive on the part of Mr Khan.[66]In my judgment the claimant did not shift the burden of proof to the respondent, but even if she had, I am satisfied that the respondent has given an explanation of what was done which is not tainted by discrimination. Direct discrimination/victimisation – dismissal[67]It is agreed that the claimant was dismissed.[68]The claimant agrees that she had a pattern of being late as I have set out above.[69]The claimant seems to be of the view that because she had a reason for being late on each occasion, because she told the respondent of the reason, and because she had not completed her probation, she ought not to have been dismissed and therefore the real reason for dismissal is either direct discrimination and/or victimisation.[70]I confess to having some difficulty with the entirety of the claimant’s case on this point.[71]Attending on time is a basic requirement as part of the work-wage relationship. It is no answer to the problems caused by persistent lateness that there were reasons for being late. This is not a case of an established employee having a few late days. This case is about a new starter even turning up late for her induction. In my experience an employee’s tardiness is not forgiven simply because they give a reason for it because to do so could give rise to all manner of abuse, for example the employee who says “I’ll be late in because I had a late night out” does not get excused sanctions merely because they had a reason for being late.[72]There may be reasons for lateness which an employer can forgive in certain circumstances, but this employer, in these circumstances did not feel forgiveness 11 of 12 or tolerance were appropriate, and there is no evidential basis for finding or inferring that the reason was either the claimant’s nationality or because she complained about Mr Khan to Mr Sadler.[73]In my judgment the claimant did not prove facts from which I could decide that the dismissal was direct race discrimination or victimisation, but even if she had I am satisfied that the respondent’s explanation for the dismissal, the claimant’s persistent lateness, is not tainted by discrimination or by any act of victimisation.[74]For those reasons the claimant’s claims of direct race discrimination and victimisation fail and are dismissed. Costs[75]At the conclusion of the hearing Mr Hamid made an application for costs.[76]A costs warning was sent to the claimant by the respondent on 10 November 2025 which included a drop hands proposal should the claimant withdraw her claim within 7 days of the email. As we know she did not withdraw.[77]The basis of the application is that the claims had no reasonable prospects of success or that the claimant acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings.[78]The difficulty I have is that Mr Hamid did not say what costs he was seeking and there is no schedule of costs for me to consider.[79]I have read the Tribunal’s file and cannot see how it is said that the claimant acted vexatiously, abusively, disruptively. However, I am aware that not everything will be on the Tribunal’s file. I can see an argument that at some point the claimant ought to have been aware of the weaknesses in her case but it seems to me to properly determine a costs application a more detailed application is required setting out when and why the respondent says that the claimant acted vexatiously, abusively, disruptively or otherwise unreasonably and/or knew or ought to have known that bringing or continuing the claim became unreasonable as it had no reasonable prospects of success.[80]In the circumstances, I decline at this stage to make a costs order, but the respondent is free to re-make the application bearing in mind the time limits in Rule 75 of the 2024 Employment Tribunal Procedure Rules.