Miss A Smith v Van Arthur Flower Group Ltd: 3302994/2023

EMPLOYMENT TRIBUNALS

Case No 3302994/2023

Between

Miss A SmithClaimant

Van Arthur Flower Group LtdRespondent

Before

Employment Judge French

In person for claimant

Date 9 October 2025

JUDGMENT

[1]The complaint of unfair dismissal is struck out. The claimant was not an employee of the respondent for the purposes of section 230(1) Employment Rights Act 1996 (ERA). Further the claimant does not have two years qualifying service and was not asserting any statutory right within s104(4) ERA such to make the dismissal automatically unfair under s108 ERA.

[2]The claimant was in employment within the meaning of the Equality Act 2010 because pursuant to s83(2)(a) she was in employment under a contract personally to do work. The complaints of race discrimination therefore proceed.

REASONS

[1]This claim was brought by an individual who was a “worker” within the definitions in the Employment Rights Act 1996 ("ERA") and an “employee” within the definition in the Equality Act 2010 ("EQA").

[2]She brought the claim following the end of what we will refer to as “employment” for ease of reference. Page 1 of 37 The Hearing and The Evidence

[3]This was a final hearing at which there were two witnesses are giving live evidence to the tribunal. They were the Claimant on her own side and Aathavan Sri, a director of the company, on behalf of the Respondent.

[4]Each side also relied on written statements from persons who did not actually attend to give evidence. We have given those statements such weight as we see fit.4.1 On the Claimant’s side, she relied on a written statement from Gary Pinnock, a neighbour.

4.2 On the Respondent's side, they relied on written statements from Anna Duher and Sadie Shefedun. The latter document stated that it was “Translated by Hasan Aydemir”

[5]We had a bundle of approximately 44 pages. It did not include the ET1 or the ACAS conciliation form. We added those to our versions of the bundle and the version for the witness table.

[6]There had been previous preliminary hearings. Not all of the decisions, summaries and orders from those hearings were included in the bundle but the panel had access to those documents from the tribunal files and the parties had them as well.

[7]In addition, there was a document of around 32 pages electronically containing WhatsApp messages between the Claimant and Mr. Sri. Those were supplied shortly before the evidence started. The Tribunal arranged for copies to be printed for the panel, the witness table and the parties. The Claims and The Issues

[8]A list of issues produced at the third preliminary hearing, which was before Employment Judge French. We have used that list of issues as the basis for our decision-making.

[9]In addition, we allowed an amendment to the claim to add a complaint of victimisation. The complaint was that there had been protected acts on two occasions in November and December 2022 when the Claimant had made allegations at that acts which Sadie Shefedun had allegedly done had been racist. Each of those alleged protected act was said to have been an oral allegation made to Mr Sri in his office. The allegation of victimisation was at that the Claimant was dismissed because of one or both of those protected acts.

[10]Thus the list of issues was as follows (omitting remedy) Page 2 of 37 1. Employment status 1.1 At a preliminary hearing on 9 October 2024, [EJ French] determined that the claimant was in employment within the meaning of the EqA because pursuant to s83(2)(a) she was in employment under a contract personally to do work. 2. Time limits2.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 16 December 2023 may not have been brought in time.

2.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:2.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

2.2.2 If not, was there conduct extending over a period?

2.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

2.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:2.2.4.1 Why were the complaints not made to the Tribunal in time?

2.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 3. Direct race discrimination (Equality Act 2010 section 13)

3.1 The claimant’s describes her race as white British

3.2 Did the respondent do the following things:3.2.1 On 11 March 2023 Sadie Shefedun raised her hand up to hit her

3.2.2 On or around March 2023 Sadie Shefedun lied and stated that the claimant was not willing to help her

3.2.3 On or around November 2022, whilst the claimant was eating lunch Sadie Shefedun made gagging gestures and pretended to be sick

3.2.4 On or around December 2022 and January 2023 Sadie Shefedun showed her videos which were not in her language and asked her to donate to charity and when the claimant said she could not she got upset about it

3.2.5 On or around December 2022 Sadie Shefedun talked about the Quran and asked if the claimant had read it Page 3 of 37

3.2.6 On or around December 2022 Sadie Shefedun shunned the claimant because she did not buy books from a lady who had come into the shop to sell them

3.2.7 On multiple occasions the final one being on or around February 2022 Sadie Shefedun broke flowers in the bouquets prepared by the claimant

3.2.8 On or around December 2022 Sadie Shefedun deliberately put a bucket behind the claimant so that if she stepped back, she would fall over

3.2.9 On or around 14 February 2023 Sadie Shefedun left wipes on the floor in the room the claimant was working in and left it for her to clean up

3.3 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.

3.4 If so, was it because of race?

3.5 Did the respondent’s treatment amount to a detriment? 4. Harassment related to race (Equality Act 2010 section 26)

4.1 Did the respondent do the following things: 4.1.1 The claimant repeats the conduct at point 3.2.1 to 3.2.9 above.

4.2 If so, was that unwanted conduct?

4.3 Did it relate to race?

4.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

4.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Page 4 of 37 ADDED: VICTIMISATION A1. Did the Claimant do a protected act – within the definition contained in section 27 EQA – in November / December 2022 by alleging – whether expressly or not – that Sadie Shefedun had acted towards the Claimant in a manner that was direct discrimination because of race and or harassment related to race. The Claimant alleges that there were two such protected acts in November/December 2022 and that each occurred in Mr Sri’s office when only the two of them were present and in each case she made the allegation orally. A2. If the Claimant did do a protected act, as alleged, then did that influence the Respondent’s decision to dismiss the Claimant – whether consciously or unconsciously. Alternatively, was the dismissal because the Respondent believed that the Claimant had done, or may do, a protected act. The Findings of Fact

[11]We make the following findings of fact on the balance of probabilities having considered all of the evidence presented during the hearing.

[12]The Respondent is company which operates a flower shop. The director, Aathavan Sri (Mr Sri), has been running it for over 10 years.

[13]At a previous hearing, there was a judgment to the effect that the Claimant was not an employee of the Respondent for the purposes of section 230(1) ERA but was in “employment” as defined in section 83 EQA.

[14]The Claimant worked for the Respondent for around one year, from March 2022 to March 2023. The contract was terminated by the Respondent in the circumstances we will discuss more fully below.

[15]We accept Mr Sri’s account that other people who worked in the shop from time to time – including Ms Duher and Ms Shefedun – were on the same contract as the one between the Respondent and the Claimant. Mr Sri describes the contracts as “zero hours”.

[16]Ms Shefedun started working for the Respondent around September 2022, so around 6 months after the Claimant. Ms Duher started working for the Respondent around January 2023, so 9 months later than the Claimant.

[17]The Claimant argues that Mr Sri and Ms Shefedun knew each other before Ms Shefedun started working in the shop. We accept his denial. That being said, it Page 5 of 37 would not necessarily have assisted the Claimant’s complaints – as set out in list of issues above – if Mr Sri had, in fact, been acquainted with Ms Shefedun earlier than September 2022.

[18]In any event, to the extent that the Claimant argues that anybody who had worked in the shop before the Claimant worked there had left because of Ms Shefedun, we do not accept that. The Claimant is vague on the details and is basing the assertion on second hand information.

[19]Both Mr Sri and the Claimant agree that Ms Shefedun was not fluent in English. They also both agree that she wore a headscarf.

[20]In Ms Shefedun’s own statement she says (referring to the Claimant): She frequently made racial remarks about my Islamic faith, particularly because I wear a headscarf and my English is not as fluent.

[21]Accusing someone of making “racial remarks” is a serious allegation and the Respondent has not proven that the Claimant did that. Mr Sri has not claimed to have seen or heard any, and Ms Shefedun has not been at all specific.

[22]Furthermore, we note the Claimant’s observation that she regards this comment as simply being because of what the Claimant wrote in her 12 November 2023 further information document about the alleged incident with the ham sandwich which we will discuss below.

[23]Based on the totality of the evidence as a whole, we are satisfied that, from the time that Ms Shefedun started working for the Respondent, the Claimant was aware that Ms Shefedun’s religion was Islam.

[24]The shop is fairly small in total area, and the area behind the counter is smaller still (around 70cm between it and the wall). There is a small work area separated from the public part of the shop.

[25]Mr Sri worked most days. He had an office which was adjoining the premises. Sometimes he was out on deliveries, but other than that he was generally aware of what was going on in the shop. The workers did not need to make appointments to see him, and they were in regular contact with him throughout the day. When he was on the premises they could readily go to his office, and the rest of the time they could readily contact him via WhatsApp.

[26]On a typical day, Mr Sri would arrange for only one worker to be present in the shop (other than himself). At busier times, including Valentines Day, Mothers Day and Christmas, there might be more than one other worker. We infer that if there was a particularly big order for a particular event such as a wedding or funeral then that might also be a reason to have more than one worker present. Page 6 of 37 However, the workers were paid by the hour and Mr Sri sought to avoid having unnecessarily high staffing levels for economic reasons.

[27]Mr Sri offered the shifts to workers from a small bank of staff. That bank of staff varied over time. From January 2023 onwards, there were 3 workers in that bank, the Claimant, Ms Shefedun and Ms Duher. Earlier than that, in the 10 years that the shop had been operating, there had been others.

[28]Our finding of fact is that the Claimant did not tell Mr Sri, in November or December 2022, that she believed that Ms Shefedun had done anything that was connected to race. She did not say such a thing outright, or by implication. We have reached this conclusion based on all of the evidence and submissions, and having taken account of all the findings we have made on other points.

[29]Amongst other things, we have taken into the message which the Claimant sent on 11 March 2023 at 13:17:17. This particular text message refers to Ms Shefedun as “racist”. However, there is no suggestion in that message that the Claimant had said this before. Furthermore, none of the earlier or later messages support the assertion that the Claimant had said it before.

[30]For context, the exchange was as follows: [11/03/2023, 13:04:35] Aath: I have spoken to her and explained that what she did was wrong. However I’m disappointed that u weren’t prepared to speak to her about it. Anyway tomorrow is a new day so I’ll make sure u get your apology another time [11/03/2023, 13:07:23] Amanda Smith 2 Florist : Don't want an apology off her and yeah tomorrow is another day. [11/03/2023, 13:07:56] Aath: You said u wanted it [11/03/2023, 13:08:08] Aath: Anyway I did speak to her. It is better for me to speak to her without u there. I have done it now [11/03/2023, 13:09:05] Amanda Smith 2 Florist : That's good aint it [11/03/2023, 13:11:29] Amanda Smith 2 Florist : But I bet u a pound to a penny if it was flipped and I was to raise my hand to hit her then I would have been told to go and not come back ay, but she gets to do it and just gets talked to while I'm told to call it a day and go home....well thats just great aint it. [11/03/2023, 13:12:45] Aath: Nah Amanda if you really think that then I’m disappointed in u [11/03/2023, 13:12:51] Aath: I have never ever treated u in that way ever [11/03/2023, 13:13:03] Aath: So for you to make that misjudgement that I’m favouring her over you [11/03/2023, 13:13:06] Aath: You’re very very wrong [11/03/2023, 13:13:09] Aath: I asked both of u [11/03/2023, 13:13:14] Aath: If you’re prepared to apologise and get over [11/03/2023, 13:13:18] Aath: U were still shouting Page 7 of 37 [11/03/2023, 13:13:23] Aath: And I’m afraid today I’m not dealing with that [11/03/2023, 13:13:30] Aath: Already done the same argument 4 times before [11/03/2023, 13:13:41] Aath: So I decided yep. If even now you wanna argue and shout about it. It’s home time [11/03/2023, 13:13:46] Aath: That’s why I asked u to leave [11/03/2023, 13:13:53] Aath: Not cos I choose her over u or disrespect u [11/03/2023, 13:13:59] Aath: I don’t treat u like that so please don’t tell me I do [11/03/2023, 13:14:21] Amanda Smith 2 Florist : My only regret was she didn't land that hand coz I would of took great pleasure in drilling her in that ground and she knew that and no I'm not shouting, no caps here. And u are not the only one who got shit going on outside work but its made clear today, thanks. [11/03/2023, 13:15:26] Aath: Nah you were shouting when you left [11/03/2023, 13:15:28] Aath: That’s what I meant [11/03/2023, 13:16:09] Aath: I told her that as well by the way when you left. I told her u don’t know what people got going on outside of work including Amanda [11/03/2023, 13:16:43] Aath: Anyway. When you’re prepared to talk to me on the phone let me know. I’m gonna have my lunch now but after that if you’re up for it I’ll phone you [11/03/2023, 13:17:17] Amanda Smith 2 Florist : She is the instigator every time and then plays the victim, and u watch if u take on another white English she be the same coz she is racist thinking she is superior but that don't matter either does. [11/03/2023, 13:17:22] Amanda Smith 2 Florist : Talk to sadie [11/03/2023, 13:17:56] Amanda Smith 2 Florist : That why she got gge other little girl the sack. [11/03/2023, 13:18:51] Amanda Smith 2 Florist : And when u talk to her tell she gonna put that hand up again. [11/03/2023, 13:28:57] Amanda Smith 2 Florist : Check ur fucking cameras and see how she follows and Co tinges to bait when I told her to shut up and walked away but she don't no she follows to keep it going then goes to hit me!! Then runs out playing victim...I'd like to see what ud do if someone did that to her, but they wouldn't still be working Sri ay. [11/03/2023, 13:55:33] Aath: Call me when you’re ready

[31]In the later messages, the Claimant asks for details of each of Ms Shefedun’s and Ms Duher’s nationalities, and asks questions about how long they had been “working in the country” and also if they had “right to work share code” which the Claimant asked to see. However, there were no assertions that the Claimant had previously raised issues of discrimination, even though the Claimant sent several messages about going to an employment tribunal and making assertions about why – according to the Claimant – the Respondent had breached her employment rights.

[32]Similarly, in the ET1 written on 29 March 2023, while matters were fresher in the Claimant’s memory, there is no mention of telling Mr Sri - in November or December 2022, or thereabouts - that the Claimant believed that there had been Page 8 of 37 discrimination (or any other contravention of EQA) or any allegation that the Claimant was dismissed because of such allegations.

[33]In her oral evidence, despite being given several opportunities to try to give some specific information about what she claimed that she had actually said – in November / December 2022 – that was an assertion of discrimination, the Claimant repeatedly spoke in generalities.

[34]Further in January, the Claimant wrote: Sri we need to talk about Sadie, I'm sorry but I'm fed up with her now, she don't listen to anything, she ain't a florist that was evident from the start, she using shit flowers iv told her are no good in [bouquets], that are moldy and rotten and now she letting people come in, not customers, to just charge their phone, she does sheafs and gives them for 20, I'm fed up now.

[35]The final word (“now”) is inconsistent with the Claimant having made any prior complaints or allegations of wrongdoing, especially serious allegations such as of racism. Likewise it is notable that the Claimant does not state or imply that they need to talk about Ms Shefedun “again”.

[36]In the Claimant’s 12 November 2023 document (which purported to supply the further information as ordered by EJ Laidler), the Claimant alleges that Ms Shefedun was “offish” with her. She gives three different alleged trigger events which she thinks might have led Ms Shefedun to being “offish”.36.1 One is an alleged reaction to the Claimant eating a ham sandwich.

36.2 Another is an alleged reaction to the Claimant declining to make on-line donations after Ms Shefedun showed her some videos.

36.3 The third is that Ms Shefedun was offish (lasting for the remainder of the day in question) after the Claimant declined to purchase some books from a person who came to the shop collecting for charity.

[37]Our overall finding is that the Claimant and Ms Shefedun did not have a harmonious working relationship.

[38]The Claimant’s account is that Ms Shefedun had little or no previous training or experience as a florist, and that the Claimant had to provide her with training and guidance. We accept that that is true.

[39]It was also the Claimant’s perception that Ms Shefedun was given more freedom than she, the Claimant, was given. The Claimant was asked by Mr Sri to give instructions to Ms Shefedun and the Claimant’s perception was that Ms Shefedun often failed to carry out those instructions. Page 9 of 37

[40]We accept Mr Sri’s evidence that, in fact, he gave Ms Shefedun no greater flexibility over start and finish times than he gave to the Claimant. He was happy if someone decided to leave for the day when the shop was not busy because it meant that he did not have to pay them for the full day.

[41]We accept that there was an occasion when Ms Shefedun asked the Claimant if the Claimant had read the Quran. The Claimant said “no” and that was the end of the matter. Ms Shefedun did not pester the Claimant about the contents of the Quran, or try to persuade the Claimant to read it. Ms Shefedun did not treat the Claimant any differently after the conversation compared to before it.

[42]On the days that she was working in the shop, Ms Shefedun would typically take at least one prayer break.42.1 Usually she used Mr Sri’s office for her prayers.

42.2 On one occasion (presumably because Mr Sri’s office was unavailable, though the exact reason does not matter), she used the work space in the shop that was separate to the public area.

42.3 The Claimant had been working in there. Ms Shefedun asked to be able to use the room for prayers. The Claimant was content to oblige and moved the items which she, the Claimant, had been using to one side in order to make space. The Claimant left the area to give Ms Shefedun some privacy.

42.4 After Ms Shefedun had finished praying, the Claimant returned to the area. The Claimant found some wipes on the floor. They had not been placed in the bin. They had not been there when she left, and her inference was that Ms Shefedun had used them to wipe the floor before praying.

42.5 We accept that the Claimant’s recollection is accurate and that the items had not been there previously. It follows that Ms Shefedun had left them there. The Claimant’s inference that the wipes had probably been used to wipe the floor prior to prayers does make sense. However, that does not especially matter. We comment below on the fact that the items were not placed in the bin but were left on the floor when Ms Shefedun left the area.

[43]The Claimant recalls Ms Shefedun showing her videos. On the balance of probabilities, it is more likely that this was on one occasion rather than a regular occurrence. Either way, the Claimant’s recollection is: The videos [were] not in english and i didnt understand what they were saying or what the videos were about but [Ms Shefedun] told me they were asking for charity dontion and that if i donated that i would then see my name come up in these videos. I explained that at this time i could not donate as financially i could not afford to at the time Page 10 of 37

[44]The Claimant has a recollection of a different incident which is as follows: One day a lady came in selling books for a charity. Sadie explained that [the lady] was selling the books for charity and wanted £20 for them. The books were not in english and i could not understand them or read them. I did offer to give a small donation but told her i could not afford the £20 for the books.

[45]There is no specific comment by Ms Shefedun on either of these things, and our finding is that the Claimant is telling the truth – to the best of her recollection – about these events occurring.

[46]The Claimant’s perception and / or recollection that – as a result of either incident – Ms Shefedun was “offish” with her has to be seen in the context that our findings are that:46.1 Firstly, there was no contemporaneous complaint about that, and

46.2 Secondly, the Claimant alleges that

(i) firstly her own relationship with Ms Shefedun had always been a poor one and

(ii) secondly that – in the Claimant’s opinion – Ms Shefedun had had a poor working relationship with at least one other colleague.

[47]The Claimant also states, in her 12 November 2023 further information: I had a ham and cheese sandwich for lunch one day and when Sadie saw she started to make gagging gestures, as if me eating the sandwich made her feel sick, then she put her scarf over mouth, giving me a look and walked out

[48]In her 8 October 2024 statement, prepared for a preliminary hearing, the Claimant says: Sadie says in her statement that i made remarks about her head scarf. I have never ever made any remarks to her or anyone else about her head scarf nor her faith. The only time i have mentioned her head scarf is in the course of these proceedings when i was asked to give examples of the things she did and i gave one example of how she made gagging gestures and covered her mouth with her scarf while i was eating a sandwich. She has obviously read this statement and as she had nothing that she could use against me had decided to use this and to use this in a way it was not intended.

[49]This alleged ham sandwich incident is not mentioned at all in the 4 April 2025 statement that was prepared for the final hearing.

[50]In list of issues, the alleged incident is described as: On or around November 2022, whilst the claimant was eating lunch Sadie Shefedun made gagging gestures and pretended to be sick Page 11 of 37

[51]We are satisfied that the judge who prepared the list of issues wrote down accurately what the Claimant said about the incident during the 9 October 2024 hearing. (Neither the Claimant nor Mr Sri has suggested otherwise.)

[52]Thus, the Claimant’s assertion is that the incident was in November 2022. The allegation that Ms Shefedun was “pretending” is only in list of issues and not in the witness evidence.

[53]There is no direct comment on this alleged incident from Ms Shefedun in her written statement. That statement was prepared earlier than the list of issues.

[54]We accept that the Claimant’s memory of Ms Shefedun having covered her face and walked out of the room is accurate.

[55]The Claimant did not raise this issue with Mr Sri. The Claimant did not raise the matter with Ms Shefedun. Ms Shefedun did not raise the matter later with the Claimant. The Claimant did not change her lunch habits and was not asked to do so.

[56]On the Claimant's own account, Ms Shefedun never asked her (either on the day, or earlier, or later) to refrain from eating ham. Ms Shefedun did not ask the Respondent to stop the claimant eating ham.

[57]There is no direct evidence that there was any connection between what Ms Shefedun did and what the Claimant was eating for lunch. There is no direct evidence that Ms Shefedun was aware that the Claimant was eating ham. That being said, the Respondent has been aware of this allegation since 12 November 2023, or thereabouts, and has had the opportunity to at least get a written statement from Ms Shefedun commenting specifically. If it was the Respondent’s position that Ms Shefedun was unaware that the Claimant was eating a ham sandwich and/or that Ms Shefedun’s actions in covering her face and leaving the room was unconnected to what the Claimant was eating, then the Respondent has had every opportunity to obtain a statement from Ms Shefedun to that effect.

[58]We draw the inferences that the Claimant invites us to draw, namely that(i) Ms Shefedun knew the sandwich was ham and

(ii) that her actions in covering her face and leaving the room were for that reason.

[59]Since the first time that the Claimant alleged that Ms Shefedun was only pretending to feel ill was orally on 9 October 2024, and since the Claimant has not satisfied that she has any basis – other than pure guesswork – that Ms Shefedun was pretending, the alleged fact that Ms Shefedun was pretending to feel ill has not been proven to our satisfaction.

[60]The Claimant alleges in her 12 November statement: Page 12 of 37 [Ms Shefedun] would do petty things to try and cause trouble or get a reaction. Things like breaking flowers in bouquets [I] had made or putting buckets right behind me so if [I] stepped back [I] would fall over them

[61]The list of issues alleges that there was one specific bucket incident (in December 2022) rather than several.

[62]Either way, we are not satisfied that there was any occasion on which Ms Shefedun deliberately attempted to make the Claimant fall over a bucket.

[63]There was no contemporaneous complaint about this. We are not satisfied that, during employment, the Claimant actually believed that Ms Shefedun had deliberately sought to injure her by placing a bucket. If the Claimant had genuinely believed that at the time, then it would be a belief in something very serious: that another person was potentially attempting to commit a crime by causing bodily harm to the Claimant. We are satisfied that – even apart from the possibility of escalating the matter, such as by way of a report to police – such a belief would have been mentioned in at least one of:63.1 WhatsApp messages in December 2022

63.2 WhatsApp messages from 11 March 2023 onwards

63.3 The ET1 on 29 March 2023

[64]Although the Claimant’s ET1 accuses the Respondent of failing to “act under health and safety rules when my safety was jeopardised”, at most that is an assertion that dangerous situations had not been prevented by the Respondent. It is not an assertion that Ms Shefedun had deliberately attempted to make the Claimant fall over a bucket or to fall over anything else.

[65]We do take account of the fact that the Claimant is a litigant in person and also of the fact that she said that she would supply further information in due course. Even so, having heard all of the evidence and submissions, we find it to be inconceivable that the Claimant would have left such a serious allegation – that Ms Shefedun had deliberately been trying to cause physical injury to the Claimant by attempting to make her fall over items – out of the ET1 if she had actually believed it to be true at the time she presented the ET1.

[66]We accept Mr Sri’s evidence that there were often buckets left on the floor, regardless of whether Ms Shefedun was working that day, and regardless of whether the Claimant was. This reflects very poorly on the Respondent but is a further reason that the Claimant has failed to prove any deliberate attempts by Ms Shefedun to place a bucket somewhere that would be dangerous.

[67]In terms of broken flowers, the Claimant does not allege that she actually saw Ms Shefedun break them. The Claimant’s own account is that there were times Page 13 of 37 when she left the item in a good condition and on her return she noted that there was damage to the item.

[68]She inferred that the only way that the damage could have happened was that Ms Shefedun was responsible

[69]We accept that she genuinely believed Ms Shefedun was responsible and she did say so to Ms Shefedun and to Mr Sri.

[70]We also accept that – at least some of the time – the Claimant’s inference was correct and Ms Shefedun’s actions had caused the damage which the Claimant observed. It does not follow, from the fact that Ms Shefedun was responsible for the damage, that Ms Shefedun had deliberately caused the damage.

[71]We accept Mr Sri’s account that – given his more than 10 years’ experience in the business – he was in a good position to know what could cause damage. He was also familiar with the fact that the shop was small and that items could sometimes be knocked by people brushing past. We accept his evidence that everything that he saw and heard at the time was consistent with accidental damage. It was the type of damage that he was used to seeing when other workers were in the shop, not just when it was Ms Shefedun and the Claimant. He said that at the time. He has maintained that position in the Employment Tribunal proceedings.

[72]Our finding of fact is that any damage caused by Ms Shefedun was accidental. Our finding is that the Claimant had no evidence, at the time or since, that it was deliberate. If she did have such evidence, she would have told Mr Sri about it at the time and we are certain that he would have acted on such evidence. His business runs on slight profit margins and he would not have tolerated one employee deliberately damaging stock for any reason.

[73]When complaining about broken flowers during employment, the Claimant did not assert that there was any connection with race.

[74]We are not satisfied on the evidence that SS told any deliberate lies about the Claimant. The Claimant alleges: On another occassion Sadie lied to Sri saying i would not help her and i was being nasty and criticizing her for watching some you tube floristry videos, on the occassion this incident was supposed to have happened Sri was there himself and knew she was lying and that it was not as she tried to make it out to be and in fact was the opposite of what she tried to say it was as i was in fact helping her and so was Sri that day but again nothing was said to her about it or nothing done about it

[75]This is in the 12 November 2023 further information. The allegation about lying is in the list of issues but not in later statements. The list of issues dates the Page 14 of 37 alleged lying as being in March 2023; that is a date supplied orally by the Claimant at the preliminary hearing on 9 October 2024.

[76]We do accept that there was at least one occasions when the Claimant believed that Ms Shefedun had made a statement that was unfair to the Claimant. However, on the Claimant’s own account, the comment alleging that the Claimant had been unhelpful was describing the work done between Ms Shefedun and the Claimant and Mr Sri on a day when all three of them were present. Our finding is that Ms Shefedun stated an opinion. It is an opinion that the Claimant strongly disagrees with, and that she thinks that Mr Sri also disagreed with. However, our decision is that the Claimant has not shown - on the balance of probabilities - that Ms Shefedun was deliberately stating a fact that Ms Shefedun knew to be incorrect.

[77]On 11 March 2023, Ms Shefedun raised her hand towards the Claimant as if she going to hit the Claimant. Ms Shefedun did not actually attempt to hit the Claimant. In reaching this conclusion, we note that the allegation about the raised hand does not appear to have been denied by Ms Shefedun at the time. Mr Sri did not say that Ms Shefedun had denied it when he messaged the Claimant about the matter. On the contrary, Mr Sri said that the Claimant was entitled to an apology from Ms Shefedun.77.1 Following the incident, the Claimant messaged Mr Sri at 12:47.

77.2 He arrived at the shop almost immediately and there was an immediate discussion between him, the Claimant and Ms Shefedun.

77.3 Our finding is that Ms Duher was present for at least some of the time.

77.4 We accept that the Respondent does not have a CCTV recording of the incident. We accept that the Respondent did not have a recording that it has since destroyed, or allowed to expire, but rather that there was no recording in the first place

[78]Mr Sri told them that he wanted each of Ms Shefedun and the Claimant to apologise to the other and to get through the working day. By this time, there had been no allegation of Ms Shefedun being racist or motivated by race.78.1 Ms Shefedun confirmed that she was willing to seek to work harmoniously with the Claimant for the remainder of the day.

78.2 The Claimant did not give that confirmation. For that and so Mr Sri decided that she should go home.

78.3 In making this decision, he was not attributing blame for what had happened so far, but was making an assessment that it would be more disruptive to Page 15 of 37 have both the Claimant and Ms Shefedun present, than for one of them to go home.

78.4 His priority was to meet all the customer orders that needed to be completed that day.

[79]The decision that the Claimant go home was because she was the person who declined to apologise. Regardless of whether that was a reasonable approach or not, that was genuinely his conscious thought process.

[80]We are satisfied that Mr Sri did not state or imply that this was the last occasion on which the Claimant would work. He did not tell her that she was dismissed or terminated or sacked or similar. We are satisfied that he made clear to the Claimant that he was telling her to go home for the remainder of the day, not that she would be unwelcome to come back to do more shifts in future.

[81]The subsequent WhatsApp messages also make clear that the Claimant’s contract had not been terminated and that the Claimant did not think that it had been. There were discussions about what shifts the Claimant would be offered in the immediate future, and there were requests for the Claimant to come in to meet Mr Sri.

[82]At this time, on 11 March and the days immediately afterwards, the Claimant did not allege that she had been “dismissed” or that her zero hours contract had been terminated. She did not make that allegation in express terms, or by implication. This is because that was not her understanding of the situation at the time.

[83]In the correspondence, Mr Sri commented on what shifts he proposed to offer to the Claimant in the immediate future.

[84]We are satisfied that Mr Sri was not proposing any permanent change to shift arrangements compared to what had happened in the past. It was his view that he had always been free to offer the Claimant and other workers as many or as few shifts as he wished to offer, at his sole discretion.

[85]The Claimant had not always worked 5 days per week. She was offered shifts as and when the business wanted to have worker(s) in the shop. We discussed above that typically it was one worker at a time (other than Mr Sri) but with more than one worker for busier periods.

[86]At this particular time, Mr Sri was due to be on leave, and he decided that he should not have Ms Shefedun and the Claimant on shift at the same time in his absence. So – during his absence on leave - there would be some days when one of them worked alone, and some days when Ms Duher worked (whether alone or alongside one of Ms Shefedun or the Claimant). However, he wanted Page 16 of 37 to ensure that there were no days when Ms Shefedun and the Claimant worked at the same time.

[87]Mr Sri intended that, when he came back from leave, he and the Claimant would discuss matters. He was not ruling out that the Claimant and Ms Shefedun would ever work together again. It was simply his opinion that some matters needed to be resolved first and that he did not have time to do that before he went on leave.

[88]He did not commence disciplinary proceedings against Ms Shefedun. It is the Claimant’s firm and genuine opinion that that ought to have happened.

[89]On 16 March 2023, as part of a telephone discussion, the Claimant made clear to Mr Sri that she disagreed with the proposed shift allocation for the time that he was going to be away, and she believed that she had a legal right to more shifts.

[90]She did not suggest that Ms Shefedun was being treated more favourably because of race and she did not say that there was any connection to the message she sent on 11 March about Ms Shefedun being racist and the subsequent decisions about shift arrangements. She did not say that she was going to take legal advice about any alleged contraventions of EQA, and nor did she imply that she was going to take legal advice about any such contraventions of EQA. She did not state or imply that she thought there had been a breach of EQA. The argument that she had a legal right to more shifts was not based on any opinion that EQA was the source of such rights.

[91]During this telephone conversation on the afternoon of 16 March 2023, Mr Sri said that, given what the Claimant was saying, he would give her no more shifts.

[92]The following day, 17 March 2023, they exchanged several messages. One snippet was: [17/03/2023, 10:57:50] Amanda Smith 2 Florist : Lol u told told me on the phone that u dismiss me, meaning that u sacked me remember, so why ur saying all this now I don't know, but it's what u should of said before u dismissed me. [17/03/2023, 10:58:19] Aath: correct

[93]Our finding is that Mr Sri accepted on 17 March that he had dismissed the Claimant the previous day. He has also confirmed that he did so in the ET3 and in his oral evidence.

[94]Mr Sri also wrote, less than a minute later: of course I cant still keep you here whilst we have this legal battle lol.

[95]Our finding is that by “legal battle” he was not referring to any claims brought under EQA because the Claimant had not referred to such claims and it was not his opinion that she might bring a claim alleging race discrimination / harassment Page 17 of 37 (or discrimination or harassment based on any other protected characteristic, or any complaint of victimisation).

[96]The only time that the Claimant had accused Ms Shefedun of being racist was in the 11 March 2023 13:17:17 message quoted above. The Claimant had said that the message was a “warning” to Mr Sri about what might happen in the future, that is what Ms Shefedun might do in the future. Mr Sri had not perceived it as a suggestion that the Claimant might bring a claim about that allegation, and he did not have it mind when the Claimant told him about wishing to seek legal advice about her hours, and when he made the decision to dismiss her.

[97]On 17 March 2023, both before and after the confirmation that he admitted the Claimant’s assertion about the dismissal and about the reason which he had given for it on 16 March 2023, Mr Sri made clear that he was willing to have the Claimant do further shifts. Our finding is that this was a genuine offer. It was his preference that she remain as one of the people on the bank of staff to whom he could offer shifts as and when required.

[98]Mr Sri had formed the view that, since the Claimant was not willing to accept what he said about shift arrangements, then he would treat the relationship as over (and he does not deny it was a dismissal) but he did remain willing to offer shifts on the basis of the arrangement as he saw it, namely that which shifts were offered was entirely at his discretion.

[99]The Claimant had a key to the shop. He had asked for the key back, and, in due course, he received it. The Law Equality Act 2010 (“EQA”)

The Law

[100]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act.

(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.

[101]It is a two stage approach.101.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and Page 18 of 37 drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.

101.2 If the claimant succeeds at the first stage then that means the burden of proof is shifted to the respondent and the claim is to be upheld unless the respondent proves the contravention did not occur.

[102]In Efobi v Royal Mail

[2021] UKSC 33

, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong

[2005] EWCA Civ 142

and Madarassy v Nomura International

[2007] EWCA Civ 33

[103]As per paragraph 57 of Madarassy, “could decide” in section 136(2) EQA is equivalent to: a reasonable tribunal could properly decide from all the evidence before it.

[104]The burden of proof does not shift simply because, for example, the claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different) and/or that there was unwanted conduct and/or that there was a protected act. Those things only indicate the possibility of discrimination or harassment or victimisation. They are not sufficient in themselves to shift the burden of proof; something more is needed.

[105]It does not necessarily have to be a great deal more: Denman v Commission for Equality and Human Rights

2010 EWCA Civ 1279

. For example - depending on the facts of the case - an evasive or untruthful answer from a respondent or an important witness, could be the “something more” that is required. In some circumstances, it may simply be the context of the act itself. In SRA v Mitchell EAT 0497/12, the EAT upheld a tribunal’s decision that the burden of proof shifted based on a finding that the employer had given a false explanation for the less favourable treatment. That being said, it is important for us to remind ourselves that the mere fact alone that a Tribunal rejects the employer’s explanation for some particular act or omission does not mean that the burden Page 19 of 37 of proof necessarily shifts, see for example Raj v Capita Business Services EAT 0074/19.

[106]Recent EAT cases have re-emphasised the importance of actually adhering to the two stage approach set out in section 136. We have taken note of the comments in Field v Steve Pye and Co (KL) Limited and ors

[2022] EAT 68

and of the fact that several subsequent EAT decisions have cited those comments with approval.

[107]As per Essex County Council v Jarrett

[2015] UKEAT 0045/15

/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof has shifted in relation to each one.107.1 That does not mean that we must ignore the rest of the evidence when considering one particular allegation.

107.2 The opposite is true. When there are multiple allegations, and/or a lot of facts found as part of the background information, a Tribunal has to stand back and consider all of the evidence in the round to consider whether any inference of discrimination/victimisation should be drawn: see Qureshi v Victoria University of Manchester. There must be no failure to consider ‘the bigger picture’, as it was described in Humby v Barts Health NHS Trust

[2024] EAT 17

107.3 We assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. Time Limits for EQA complaints

[108]In EQA, time limits are covered in s123, which states (in part): (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or Page 20 of 37 (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it

[109]In applying Section 123(3)(a) of EA 2010, the tribunal must have regard to the guidance in Commissioner of Police of the Metropolis v Hendricks (

[2002] EWCA Civ 1686

;

[2003] ICR 530

); Lyfar v Brighton and Hove University Hospitals Trust

[2006] EWCA Civ 1548

. Applying that guidance, the Court of Appeal has noted that in considering whether separate incidents form part of an act extending over a period, one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents: Aziz v FDA

2010 EWCA Civ 304

. The tribunal must consider all relevant circumstances and decide whether there was an act extending over a period or else there was a succession of unconnected or isolated specific acts. If it is the latter, time runs from the date when each specific act was committed. Definition of Direct Discrimination – section 13 EQA

[110]Direct discrimination is defined in s.13 EQA. (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.

[111]There are two questions: whether the respondent has treated the claimant less favourably than it treated others (“the less favourable treatment question”) and whether the respondent has done so because of the protected characteristic (“the reason why question”).

[112]For the less favourable treatment question, the comparison between the treatment of the claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. Paragraphs 54 to 65 of Martin v The Board Of Governors Of St Francis Xavier 6th Form College

[2024] EAT 22

provide a recent and clear summary of the types of arguments about comparators (and the proper role of section 23 EQA) that might be presented to us, and we have taken it into account.

[113]When considering the “reason why question” for the treatment we have found to have occurred, we must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the respondent’s various acts, omissions and decisions.

[114]The mere fact alone that a respondent, or a particular individual, has behaved unreasonably and/or treated the claimant badly or unfairly will not, in itself, be sufficient to cause the burden of proof to shift. For one thing, there may also need to be consideration of whether the “bad” treatment is comparable to the way in which others were treated. However: Page 21 of 37114.1 The greater the difference between the Claimant’s treatment and that of another employee in similar circumstances, the more likely it is that the Tribunal will decide that an inference of discrimination could be drawn. Likewise, the more closely the circumstances of the claimant and the alleged comparator match, and/or the greater the number of comparators who have had “better” treatment, the more likely it is that the burden of proof will shift.

114.2 The more unreasonable the treatment, the more likely it is that the Tribunal will decide that it calls for an explanation and the more likely that the Tribunal might decide that it is possible to infer that a hypothetical comparator would have been treated differently. Harassment – section 26 EQA

[115]Harassment is defined in s.26 of the Act. (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[116]It needs to be established on the balance of probabilities that the claimant has been subjected to unwanted conduct which had the prohibited purpose or effect. However, to succeed in a claim of harassment, it is not sufficient for a claimant to prove that the conduct was unwanted or that it had the purpose or effect described in s.26(1)(b). The conduct also has to be related to the particular characteristic.

[117]Section 136 EQA applies and so the claimant does not necessarily need to prove on the balance of probabilities that the conduct was related to the protected characteristic. If the tribunal finds facts from which it could conclude that the conduct was related to the protected characteristic then the burden of proof shifts.

[118]The use of the word “or” in s26(b) (twice) is important. Page 22 of 37

[119]“Violating … dignity” could potentially refer to a one off event, regardless of whether an “environment” was created by it. Whereas the word “environment” refers to a state of affairs. Such an environment may be created by a one-off incident, but only if the effects of the incident last long enough to come within that part of the definition. Where the unwanted conduct occurs on different occasions, then “an intimidating, hostile, degrading, humiliating or offensive environment” might have been created even if no single incident violated the claimant’s dignity.

[120]“Purpose” and “effect” are two different things, and must be considered separately. Where it was the wrongdoer’s “purpose” to do the things listed in s26(b), then the complaint can succeed even if the conduct did not successfully have that effect. Correspondingly, where the conduct does have the effect described in s26(b), then the complaint can succeed even if the Respondent (or the person whose conduct it was) did not have the intention of causing that effect.

[121]In Land Registry v Grant

[2011] EWCA Civ 769

, the Court of Appel said that when considering the effect of the unwanted conduct, and when analysing s.26(4), it is important not to cheapen the words used in s.26(1). Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the claimant to a “humiliating environment” when he heard of it some months later is a distortion of language which brings discrimination law into disrepute.

[122]When dealing with a series of alleged incidents of harassment (and the same principle applies to discrimination as well), it is important not to carve up the allegations and only consider them one by one. Considering the allegations one by one on their own merits is an important part of the analysis but it is important to also stand back and have regard to the entirety of the conduct which is found to have occurred (see Qureshi v Victoria University of Manchester

EAT/484/95

). This is particularly important when considering the purpose of the conduct, and whether it would be reasonable to regard the conduct as having the prohibited effect, as well as when analysing whether there are facts from which we could decide that the conduct was related to the protected characteristic. Victimisation

[123]Section 27 EQA reads in part:(1) A person (A) victimises another person (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— Page 23 of 37 (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[124]There is an infringement if(a) a claimant has been subjected to a detriment and

(b) she was subjected to that detriment because of a protected act. The alleged victimiser’s improper motivations might be unconscious or conscious.

[125]A person is subjected to a detriment if they are placed at a disadvantage. There is no need to prove that their treatment was less favourable than another’s.

[126]In terms of what constitutes a protected act, a broad interpretation should be applied to “any other thing for the purposes of or in connection with this Act” as per 27(2)(c). It is not a requirement that the alleged protected act involves an assertion that there has been a breach of the Equality Act, since that is covered by s 27(2)(d).

[127]As per section 27(2)(d), an act may be a protected act where the allegation is either express or implied. There is no requirement for the claimant to have specifically mentioned the phrase “Equality Act” or to have used specific words such as “discrimination” or “disability”. However, to be a protected act in accordance with 27(2)(d) the allegation relied on must assert facts which, if true, could amount to a breach of Equality Act 2010. Where an employee makes an allegation of wrongdoing by the employer, but without asserting (either expressly or by implication) that the wrongdoing was a breach of the Act (eg that it was less favourable treatment because of a protected characteristic, or harassment related to a protected characteristic, etc) then the allegation does not fall within section 27(2)(d).

[128]To succeed in a claim of victimisation the claimant must show that she was subjected to the detriment because she did a protected act (or because the employer believed she had done or might do a protected act). Where there has been a detriment and a protected act then that is not sufficient, in itself, for the complaints of victimisation to succeed. The tribunal must consider the reason for the claimant’s treatment and decide what (consciously and/or subconsciously) motivated the employer to subject the claimant to the detriment. This will require identification of the decision-maker(s) and consideration of the mental processes of the decision-makers. If the necessary link between the detriment suffered and the protected act is established, the complaint of victimisation succeeds. The Claimant does not succeed simply by establishing that “but for” the protected act, she would not have been dismissed (or subjected to another detriment). Page 24 of 37

[129]The Claimant does not have to persuade us that the protected act was the only reason for the dismissal or other detriment. If the employer has more than one reason for the dismissal (or other detriment), the Claimant does not have to establish that the protected act was the principal reason. The victimisation complaint can succeed provided the protected acts have a “significant influence” on the decision making. For an influence to be “significant” it does not have to be of great importance. A significant influence is rather “an influence which is more than trivial”. See Igen v Wong

2005 ICR 931

and Villalba v Merrill Lynch and Co Inc

2007 ICR 469

[130]A victimisation claim might fail where the reason for the dismissal (or other detriment) was not the protected act itself but some feature of it which could properly be treated as separable, such as the manner in which the protected act was carried out. See Martin v Devonshires Solicitors

2011 ICR 352

[131]Section 136 applies to victimisation complaints. Therefore, the initial burden is on the claimant to show that there are proven facts from which the tribunal could decide, in the absence of any other explanation, that the respondent has contravened section 27. If the Claimant does that, the burden then passes to the respondent to prove that victimisation did not occur. If the respondent is unable to do so, the tribunal is obliged to uphold the claim. Dismissal and other contraventions of EQA

[132]Part 5 of EQA deals with “work”. Section 83 includes the definitions of employment.

[133]Section 39 EQA reads, in part: (2) An employer(a) (A) must not discriminate against an employee of A's

(b) (B) — (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment. (4) An employer (A) must not victimise an employee of A's (B) — (a) as to B's terms of employment; (b) 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; (c) by dismissing B; (d) by subjecting B to any other detriment. Page 25 of 37 Analysis and conclusions

[134]For each of our decisions, we have taken into account all of the evidence and all our findings of fact. We have not considered solely the evidence most directly concerning the alleged act/omission in question.

[135]We will use the numbering 1 to 9 for the respective allegations in section 3.2 of list of issues. We have attempted to address them out in approximately chronological order. Allegation 3: On or around November 2022, whilst the claimant was eating lunch Sadie Shefedun made gagging gestures and pretended to be sick

[136]Allegation 3 is the earliest. It dates back to November 2022.

[137]We have said in the findings of fact what descriptions the Claimant gave for the incident, and when.

[138]As per the findings of fact,138.1 we are not satisfied that Ms Shefedun was pretending to be sick.

138.2 we are satisfied that Ms Shefedun lifted part of her headscarf to her mouth and left the room quickly, giving the appearance of somebody who believed that they were feeling sick.

[139]For the harassment allegation, we accept the Claimant's account that this was unwanted conduct

[140]Even taking into account section 136, we have not had been persuaded that the purpose of Ms Shefedun's actions - in leaving the room in the way she did and covering her face - was something that she did with the purpose of seeking to violate the claimant's dignity or with the purpose of seeking to create an intimidating, hostile and degrading, humiliating or offensive environment for the Claimant.

[141]In terms of the “effect” on the Claimant, as per paragraph 4.5 of list of issues and sections 26(1)(b) and 26(4) EQA, and taking into account section 136 EQA:141.1 Our decision is that it would not be reasonable in all the circumstances to treat the conduct as having the effect on the Claimant of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.

141.2 In making that decision, we take account of all the circumstances, including the Claimant's perception. Page 26 of 37

141.3 In terms of the claimant's perception, as we said in the findings of fact, she did not complain about the incident at the time. There was no further discussion about it afterwards. The Claimant did not modify her behaviour1

141.4 In terms of what is reasonable, we take into account that employees might reasonably be expected to be aware that what they eat for their own lunch - while totally unobjectionable and commonplace from their point of view - might not be seen that way by every other colleague. It is well known – and it is reasonable to expect an employee to know - that various religions have some restrictions on what types of food should be eaten. Some people have restrictions on what they can/will eat because of a philosophical belief that is not a religious belief. In addition, some people have restrictions on what they can eat because of health reasons, which could be because they are seeking to lose weight or could be because of an allergic reaction, possibly a severe allergic reaction in some cases. In other words, it is not the case that what one employee eats in the workplace will never be the subject of comment from colleagues.

141.5 We do not think it would be reasonable to attribute the forbidden effect to this particular conduct. The conduct itself was mild and there was no comment made by Ms Shefedun to the Claimant. Ms Shefedun did not purport to tell the Claimant off for what the Claimant was eating, or to ask the Claimant not to eat it again. Ms Shefedun simply left the room quickly, having covered her face.

[142]In terms of whether it was related to race (for the harassment allegation) or because of race (for the discrimination allegation), we take into account section 136 EQA. Our decision is that the burden does not shift. This is so whether the Claimant alleges that the act was related to/because of the Claimant’s own race (which she describes as “White British”) or because of anyone else’s race.142.1 There are no facts from which we could conclude that Ms Shefedun would have acted any differently if her own race or the Claimant’s race had been different.

142.2 There are no facts from which we could conclude that Ms Shefedun’s actions were related to her own race or to the Claimant’s race.

[143]Even based on the assertion that the Claimant asks us to draw, that Ms Shefedun covered her face and left the room because the Claimant was eating a ham sandwich, that does not imply that Ms Shefedun did those things because the 1 We are not suggesting that the Claimant ought to have modified her behaviour. We are simply saying that the Claimant did not feel intimidated and did not feel obliged to change her lunch habits. Page 27 of 37 Claimant was White British, or because the Claimant was a different race to Ms Shefedun.

[144]Allegation 3 fails as harassment and fails as direct race discrimination. Allegation 4. On or around December 2022 and January 2023 Sadie Shefedun showed her videos which were not in her language and asked her to donate to charity and when the claimant said she could not she got upset about it Allegation 6. On or around December 2022 Sadie Shefedun shunned the claimant because she did not buy books from a lady who had come into the shop to sell them

[145]These are separate incidents but the similarity is that - according to the Claimant – Ms Shefedun(i) sought to persuade her to make a donation and

(ii) reacted in a way that was detrimental to the Claimant when the Claimant declined (or, at least, when the Claimant did not offer as much money as Ms Shefedun allegedly expected of the Claimant).

[146]In connection with both incidents, the Claimant says that the information was not in English and she was unclear about exactly what was stated in the videos shown by Ms Shefedun and in the books brought in by the lady.

[147]The Claimant and Ms Shefedun are the only two people alleged to have been present (other than the charity collector for Allegation 6). The Claimant has given evidence on oath. We only have a written statement from Ms Shefedun and its makes no specific comment on these alleged incidents.

[148]Allegations 4 and 6 are not mentioned in the claimant's ET1 form, though we do note that the Claimant said she intended to supply further information in due course.

[149]We have set out in findings of fact what we have decided happened.

[150]We do not think it would be reasonable to treat either of these things as having the effect prohibited by section 26 EQA on the Claimant. We think it would be cheapening the words in section 26 to do so. The Claimant was asked to make donations and declined (as she had every right to do). The height of the allegation of what Ms Shefedun did in response was that she was “offish” afterwards; however, on the Claimant’s own case, they did not have a warm relationship anyway.

[151]On the available evidence, there is no reason for us to think that it was Ms Shefedun’s intention to violate the Claimant's dignity, or create an intimidating et cetera environment, as opposed to an intention to genuinely seek to persuade the Claimant to make these donations. Page 28 of 37

[152]We accept that what Ms Shefedun did was unwanted conduct. However, we do not accept that Ms Shefedun treated the Claimant differently than she would have treated someone else, ie differently than she would have treated a hypothetical worker in the shop whose attributes were identical to the Claimant’s other than race. There are no facts from which we could infer that the actions were because of race, or related to race.

[153]Allegation 4 and 6 fail as harassment and fail as direct race discrimination. Allegation 5: On or around December 2022 Sadie Shefedun talked about the Quran and asked if the claimant had read it

[154]As per the findings of fact, we accept that the alleged incident did occur. Ms Shefedun asked the Claimant if the Claimant had read it Claimant's answer was “no”, and that her book was the Bible.

[155]That that was the end of the matter.

[156]The complaints brought by the Claimant are not about the protected characteristic of religious belief (or lack of a particular religious belief). The complaints are of harassment related to race and of direct race discrimination.

[157]Even in the absence of oral evidence from Ms Shefedun, and even taking into account section 136, we are satisfied that it is safe to conclude that Ms Shefedun’s purpose was not to violate the Claimant's dignity or to create a hostile etc environment for the Claimant.

[158]We accept the Claimant’s assertion that this was unwanted conduct.

[159]In considering the effect on the Claimant (as per paragraph 4.5 of list of issues and sections 26(1)(b) and 26(4) EQA, and taking into account section 136 EQA), we take into account that the Claimant made no particular objections at the time. It is not an incident mentioned expressly or by implication in the claim form (while, again, we repeat that the Claimant did write in the claim form that she would supply details of alleged wrongdoing in due course).

[160]It is not unreasonable for one employee to find it objectionable that another seeks to persuade them to discuss religion at work, especially where the implication is that they are being invited to read up on the colleague’s religion, rather than simply comment on their own existing beliefs. Some employer’s have disciplinary rules to discourage conversations that might be seen as an attempt to proselytise.

[161]However, we are satisfied that this was a one-off occasion. We do not have to decide whether it would have amounted to harassment if Ms Shefedun had Page 29 of 37 continually pestered the Claimant, because that is not what happened. Once the Claimant had said “no”, she had not read it, that was the end of the matter.

[162]It would be cheapening the words of section 26 to treat that incident as having had the effect on the Claimant or violating her dignity or creating a hostile (etc) environment for her at work.

[163]In any event, in considering whether it is a related to race or was less favourable treatment because of race, we have to decide if the burden of proof shifts. There are no facts from which we could conclude that Ms Shefedun would have asked different questions if Ms Shefedun’s race had been different or if the Claimant’s race had been different. There are no facts from which we could conclude that the question was related to anyone’s race.

[164]Allegation 5 fails as harassment and fails as direct race discrimination. Allegation 8. On or around December 2022 Sadie Shefedun deliberately put a bucket behind the claimant so that if she stepped back, she would fall over

[165]As per the findings of fact, we do not accept that the Claimant deliberately placed a bucket anywhere with the intention that the Claimant would fall over it, and we do not accept that Ms Shefedun deliberately made any attempt to cause physical injury to the Claimant.

[166]Thus Allegation 8 fails on the facts.

[167]For completeness, there are no facts from which we could conclude that anything which Ms Shefedun did with the bucket was either because of race or related to race. Allegation 9: On or around 14 February 2023 Sadie Shefedun left wipes on the floor in the room the claimant was working in and left it for her to clean up

[168]We note that in the list of issues this incident is attributed to around 14 February 2023.

[169]That was Valentine’s Day. We accept what Mr Sri said about the fact that Valentine’s Day is not an ordinary day in a flower shop. We accept that the Claimant is correct about the date.

[170]We described what happened in the findings of fact. In particular, it is true that - after Ms Shefedun finished praying and vacated the area, and after the Claimant returned to it - there were some wipes on the floor which had been left there by Ms Shefedun. Ms Shefedun had not picked them up and put them in the bin.

[171]It is not the Claimant’s fault that we have not had the chance to ask Ms Shefedun about why she failed to put the wipes in the bin. Her written statement says she Page 30 of 37 is abroad. The Respondent has made no attempt to get permission for her to give video evidence from that country.

[172]All that being said, there is insufficient evidence for us to conclude that Ms Shefedun deliberately placed these wipes somewhere because she wanted the Claimant to have to pick them up. While that is one possibility, another possibility is that she simply forgot. We accept Mr. Sri's evidence that wipes and other litter was often left on the floor during the working day and that they were cleared up - typically by him, in his opinion - in due course.

[173]We are not persuaded that it was Ms Shefedun’s purpose to violate the Claimant's dignity or create a hostile environment for the Claimant and when she left these wipes on the floor. It may well have been inconsiderate or thoughtless for her to have failed to leave the area tidy – or as she found it – once she had finished praying. However, we are not satisfied that she was targeting the Claimant, as opposed to simply being forgetful and/or thoughtless or inconsiderate.

[174]In terms of whether or not it had the forbidden effect, again we take into account that this was a one-off incident in the sense that it was the only time that this exact thing happened (that is, the Claimant vacating the area so Ms Shefedun could pray, and then the Claimant returning to the area to find wipes on the floor). We also take into account that, on the Claimant’s case, there had been other bad behaviour previously, such as asking for charity donations, asking about the Quran, and covering her face and leaving the room quickly on the occasion that the Claimant was eating a ham sandwich.

[175]However, even taking all that prior conduct into account – none of which we have found was related to race (either as single incidents, or as a pattern of conduct), our decision is that it would not be reasonable to treat the matter of wipes being left on the floor as violating the Claimant’s dignity, or of creating a hostile etc environment for the Claimant. The Claimant did not raise the matter with either Ms Shefedun or with Mr Sri at the time. She did not ask either of them to pick up the wipes, for example.

[176]Furthermore, when considering whether this is something that it was related to race or because of race, we have to decide if the burden of proof has shifted. We take the earlier incidents into account, as well as the events which happened afterwards, including on 11 March 2023. There are no facts from which we could conclude that Ms Shefedun’s actions in failing to pick up these wipes was connected to either the Claimant race or to anybody else's race.

[177]Allegation 9 fails as harassment and fails as direct race discrimination. Page 31 of 37 Allegation 7: On multiple occasions the final one being on or around February 2023 Sadie Shefedun broke flowers in the bouquets prepared by the claimant

[178]Although the list of issues gave a date of February 2022, the Claimant had not started work by then, and nor had Ms Shefedun. As discussed and agreed with the parties during the hearing, we have proceeded on the basis that the date in the allegation is supposed to be February 2023. That is, on the Claimant’s case it happened several times, up to and including February 2023.

[179]As we said in the findings of fact, we accept Mr Sri’s evidence - as someone who worked in the shop for 10 years - that it was not unusual for flower arrangements to be broken after they had been prepared, and before they were sent out for delivery, or collected, or purchased. As we said in findings of fact, there is insufficient evidence that Ms Shefedun deliberately broke anything which the Claimant had made.

[180]There are no facts from which we could conclude that any breakage was connected to either the Claimant race or to anybody else's race.

[181]Allegation 7 fails as harassment and fails as direct race discrimination. Allegation 2: On or around March 2023 Sadie Shefedun lied and stated that the claimant was not willing to help her

[182]This fails on the facts. We have not been persuaded that Ms Shefedun deliberately stated untrue facts. The Claimant’s account that Ms Shefedun’s assertion was wholly unreasonable does not prove that Ms Shefedun did not honestly hold that belief.

[183]Furthermore and in any event, there are no facts from which we could conclude that any comments made by Ms Shefedun about the work that she and the Claimant had done, and/or about the Claimant’s willingness to help, was connected to either the Claimant’s race or to anybody else's race.

[184]Allegation 2 fails as harassment and fails as direct race discrimination.

[185]Having worked through the other 8 allegations of harassment (pleaded in the alternative as direct discrimination), that leaves the most serious allegation, and the one that happened latest in time. Allegation 1: On 11 March 2023 Sadie Shefedun raised her hand up to hit her

[186]Essentially, and as set out in more detail in findings of fact, this allegation is factually accurate. On 11 March 2023, Ms Shefedun did raise her hand in a motion as if she was about to strike the Claimant. She did not actually strike the Claimant. Page 32 of 37

[187]The act of raising the hand was done aggressively.

[188]A threat of immediate violence and/or the implication that violence might ensue shortly is something that could be seen as violating the other person's dignity. Even as a one-off incident, the action of making as if to hit someone is so serious that it could create an intimidating, hostile, degrading, humiliating or offensive environment for the other person. Indeed such an environment might also be created for others who simply witnessed the action, even if they were not the person on the receiving end.

[189]Thus, in terms of the effect, it would not be unreasonable to regard the action as having the effect described in section 26(1)(b) EQA on the Claimant. We do not ignore, of course, the Claimant’s own comments after the incident, including the remarks: “My only regret was she didn't land that hand coz I would of took great pleasure in drilling her in that ground and she knew that” AND “ … I told her to shut up and walked away but she don't no she follows to keep it going then goes to hit me!! Then runs out playing victim ...”

[190]It is not abundantly clear from those comments that the Claimant actually did feel intimidated by what had happened, as opposed to angry. However, it is clear that she did regard Ms Shefedun’s conduct as offensive.

[191]We have received no account from Ms Shefedun as to what her purpose was. Her written statement does not address the incident at all. There is evidence from which we could conclude that, by raising her hand as if to strike the Claimant, she was intending to violate the Claimant’s dignity and/or to create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Although the Claimant’s own remarks (including the two just quoted) imply that the Claimant thought that Ms Shefedun might have lost her temper, acted without thinking things through, and then had backed off quickly upon realising what the Claimant might do if she, Ms Shefedun, did go any further down the path of attempting to strike the Claimant.

[192]For the harassment allegation, we have to decide if there are facts from which we could conclude that Ms Shefedun’s conduct, as described in Allegation 1, was related to race. In doing so, we take into account all of the facts that we have found, including everything discussion above about Allegations 2 to 9.

[193]During oral evidence, the Claimant was asked about the run-up to the incident. Her account was she cannot remember what else Ms Shefedun was saying or doing, and she cannot remember what she, the Claimant, said to Ms Shefedun. All she says that she can remember is that she was working on a flower Page 33 of 37 arrangement, and Ms Shefedun came over and spoke to her, and matters escalated from there. In other words, there is no evidence that there was any mention of anyone’s race during the argument that culminated in Ms Shefedun’s raised hand, and then in the Claimant’s message to Mr Sri which said: Just to let u know another row with Sadie, coz as per she can't shut that big mouth she got and keeps on and on and she pulled her hand back to hit me, look at the CAMERAS AND SEE, now she walked out again.

[194]Of course, the fact that race was not mentioned by either party during the argument would not, in itself, prevent an inference that the raising of the hand was related to race.

[195]In terms of the Claimant’s own message about 30 minutes later, which said, “She is the instigator every time and then plays the victim, and u watch if u take on another white English she be the same coz she is racist thinking she is superior but that don't matter either does,” that does not take things any further. Even apart from the fact that the Claimant was not specifically referring to the raising of the hand, as opposed to the working relationship more generally, it is simply recording the Claimant’s own opinion that Ms Shefedun is “racist”. She has not been able to persuade us that she based that opinion on objective factual evidence of Ms Shefedun doing anything because the Claimant was “White British” as opposed to the Claimant’s own intuition that the poor relationship between them was because Ms Shefedun disliked “White British” people.

[196]It is very clear that the working relationship between Ms Shefedun and the Claimant was a poor one. We have not found that Ms Shefedun’s questions about the Quran or the discussions about charitable donations or the actions on the day of the ham sandwich incident were connected to either Ms Shefedun’s race or to the Claimant’s race. Even on the assumption that Ms Shefedun was a poor colleague to work with (for example, failing to clean up wipes, unreasonably stating that the Claimant was not helpful) there are no facts from which we could conclude that Ms Shefedun’s actions on 11 March 2023 were related to race.

[197]Allegation 1 fails as harassment.

[198]We therefore go on to decide if there was direct race discrimination.

[199]For reasons similar to those mentioned when addressing harassment, there are no facts from which we could conclude that Ms Shefedun’s actions on 11 March 2023 were because of race.

[200]Thus Allegation 1 fails as direct discrimination. Page 34 of 37 Victimisation

[201]We have to decide if there were protected acts. The specific protected acts alleged by the Claimant are that there two occasions in November and December 2022 when she made allegations of race discrimination about Ms Shefedun to Mr Sri and we also have to decide.

[202]Those two2 alleged protected acts were the only alleged protected acts that we were asked to include on Day 1 when the Claimant made the amendment application. As mentioned in the findings of fact, our decision is that these alleged complaints did not happen. The Claimant did not speak to Mr Sri, in November / December 2022, to allege (either expressly or implicitly) that Ms Shefedun had discriminated against the Claimant (or otherwise contravened the Equality Act 2010).

[203]We do take into account that the Claimant is a litigant in person and so we comment on the 13:17:17 message, on 11 March 2023, as well, for completeness.

[204]When deciding whether the dismissal was an act of victimisation, we do not only look at whether the Claimant had done a protected act (and whether the dismissal was because of that), but we also analyse whether Mr Sri had any perception that the Claimant was going to do any protected act in the future, and – if so – whether such a perception or belief influenced the decision to dismiss.

[205]Our decision is that the burden of proof shifts. There are facts from which we could conclude that the dismissal was victimisation.205.1 We say this because, during the discussions on 16 March 2023, the Claimant said that she was thinking about taking advice in relation to her employment rights.

205.2 On Mr Sri’s own account, as per the messages on 17 March – and as he frankly accepted in the Employment Tribunal hearing – it was the fact that the Claimant was potentially going to commence legal action that caused him to dismiss her. (As we have said in findings of fact, he did also say that he would like to offer her some shifts in the future, but he has conceded that there was a dismissal.)

205.3 Five days before the 16 March dismissal, in the 13:17:17 message, the Claimant had written to Mr Sri to say that she believed that Ms Shefedun Sadie was “racist”. 2 From time to time, the Claimant said that it might have been three times. However, she said that she would stick to alleging two because she said she was sure she could remember two and was unsure about whether it was actually three. Page 35 of 37

[206]Because we have decided that the burden of proof has shifted, we need to go on to decide whether the Respondent has discharged the burden of proof. That is, we need to ask whether the Respondent has proven that the “dismissal” (that is, the termination of the Claimant's contract as a “worker”) was in no way whatsoever connected to (what the Claimant wrote at 13:17:17 on 11 March or) a belief that the Claimant would do a protected act in the future (for example, present a claim to Employment Tribunal which alleged breach of the Equality Act 2010.)

[207]The Respondent does not just have to prove that the conscious reason was nothing to do with a protected act (or the belief that there might be a future protected act). It also has to prove that there was an no such unconscious motivation. The Respondent has to prove that Mr Sri was not influenced to any degree (that is more than trivial) by the fact that the Claimant (had had done, or, in this case) might do a protected act.

[208]We are satisfied that the Respondent has discharged that burden.

[209]We have looked at the totality of the evidence, including, but not limited to, the text messages on and after 11 March 2023.

[210]We are satisfied that the Respondent was willing to try to find a way of the Claimant carrying on having a zero hours contract and of being given shifts from time to time.

[211]After the incident on Saturday 11 March 2023, Mr Sri’s initial plan was to meet the Claimant on Monday 13 March 2023. They exchanged messages about this. Ultimately, the Claimant did not attend the meeting and said she would not be in that week. She asked him to confirm which days he wanted her to come in the following week, so commencing Monday 20 March 2023.

[212]He replied “Let me get Mother’s Day out of the way I’ll be in touch Tuesday next week”. He told the Claimant that he would be away between 25 March and 3 April 2023, and that the days that he wanted the Claimant to work would factor that in.

[213]The thing which led to the proposed shift arrangement, for the time that Mr Sri was to be on holiday, was not that the Claimant had accused Ms Shefedun of being “racist” (and not because he thought the Claimant might go to Employment Tribunal), it was simply – as stated in findings of fact – that Mr Sri thought that the Claimant and Ms Shefedun might argue if they were on shift together in his absence, and that this would be bad for business. He was planning to attempt to resolve matters between the two of them on his return from leave. As he said in the messages on 11 March, his opinion was that the Claimant was entitled to an apology from Ms Shefedun. Page 36 of 37

[214]It was the proposed shift arrangement which led to the Claimant and Mr Sri having the disagreement which led, on 16 March 2023, to what the Respondent concedes was a dismissal. The Claimant maintained that she was entitled to more shifts than he was offering her. Mr Sri noted that the Claimant might potentially bring an Employment Tribunal claim about this, but – as far as he was concerned – it had nothing to do with any alleged breach of EQA by Ms Shefedun, or by the Respondent, or by anyone else. He thought it was simply a contractual dispute and/or about whether the Claimant had any guaranteed minimum number of hours. His firm opinion, based on his interpretation of all their dealing over the previous year, was that it was at the Respondent’s sole discretion whether to offer any shifts, and at the Claimant’s sole discretion whether to accept any such offers; he did not intend to offer a compromise on that particular issue. However, that had always been his stance. His position was not different after the Claimant had said that Ms Shefedun was “racist” compared to before then..

[215]What the Claimant had said about Ms Shefedun being “racist” did not influence any of Mr Sri’s decision-making, either consciously or unconsciously. He neither retaliated against her for making the comment, nor formed the opinion that she was going to bring a claim to Employment Tribunal based on alleged racism.

[216]The victimisation complaint fails.

[217]Thus, for the reasons mentioned above, all the complaints have been unsuccessful. Approved by: