It is the unanimous decision of the Tribunal that:[1]The Claimant’s claim of direct race discrimination is not well founded and is dismissed.[2]The Claimant’s claim of harassment is not well founded and is dismissed.[3]The Claimant’s claim of constructive unfair dismissal is dismissed on withdrawal. INTRODUCTION[1]The Claimant was employed by the Respondent as a Delivery Project Manager from 18 July 2022 until 7 June 2023, when she resigned with immediate effect.[2]ACAS was notified under the early conciliation procedure on 4 April 2023 and the certificate was issued on 16 May 2023. The Claimant presented her claim to the Employment Tribunal on 14 June 2023.[3]The Claimant’s ET1 claim form ticked the boxes to indicate that the Claimant was bringing a claim of discrimination on the grounds of race and a claim for notice pay.[4]A preliminary case management hearing was held before Employment Judge Anstis on 29 February 2024. At that hearing, the Claimant’s claims were clarified to be:a. Direct discrimination on the grounds of race or in the alternative, harassment on the grounds of race and constructive unfair dismissal.b. For the purposes of her race discrimination claims, the Claimant describes herself as Black Caribbean. The Claimant described her claims as: i. Being subject to a private search when going through security on 13 October 2022; ii. Neither Karen Yorath nor Darren Pitts giving her a substantive response to the complaint that she raised with them on 14 October 2022 about that search; and iii. Darren Pitts not registering her complaint as an official grievance as requested by her on 24 October 2022.c. In relation to the private search on 13 October 2022, the Claimant relies on the comparator of an Asian female who went through security in front of her, triggered a result on the scanner and was not subject to a private search. There are no actual comparators for the other two incidents and the Claimant relies on a hypothetical comparator.d. The Claimant also brought a claim of constructive unfair or wrongful dismissal. The Claimant said that the breach of contract that led to her resignation was the failure of HR to properly address her formal grievance and that this was a breach of either the implied term of mutual trust and confidence or the implied term in relation to redress of grievances. The Claimant did not allege that this was an act of race discrimination.[5]On 15 April 2024, the Claimant contacted the Tribunal by email and advised that she wished to withdraw her claim of wrongful dismissal. The Claimant confirmed at the hearing that she was not pursuing a claim for constructive unfair or wrongful dismissal. That claim is therefore dismissed on withdrawal.[6]On 11 June 2024, the Claimant contacted the Tribunal by email and sought permission to amend her claim to include the following incidents as examples of direct discrimination and/or harassment on the grounds of race:a. The grievance investigation (Stage 1);b. The grievance appeal investigation (Stage 2);c. The outcome of the grievance process.[7]The Respondent contests the claim as amended. It says that the search on 13 October 2022 followed the correct search process, a response was provided to the Claimant’s complaint and that Darren Pitts forwarded the complaint to Karen Yorath who took the matter forward from that point. The Respondent denies that it treated the Claimant less favourably than it treated or would have treated others in comparable circumstances. The Respondent denies that it treated the Claimant less favourably than the Asian female that the Claimant has identified as a comparator. The Respondent in any event, denies that this individual is an appropriate comparator as there were material differences between that individual’s circumstances and the Claimant’s circumstances. The Respondent denies that it subjected the Claimant to direct discrimination on the grounds of race or to harassment on the grounds of race or at all. The Respondent denies that the conduct complained of by the Claimant was related to race.[8]The Respondent accepts that there were delays in dealing with the Claimant’s grievance but maintains that it was addressing the issues raised by the Claimant and that once the grievance was formally registered, a fair process was followed. PRELIMINARY MATTERS Respondent’s application to call additional witnesses[9]During our discussions at the start of the hearing, the parties indicated that the Respondent had made an application on 24 July 2024 for permission to call Darren Pitts and Sorien Monfries as witnesses. That application had not been received by the Tribunal panel and we were assisted by both parties’ summaries of their positions.[10]The Claimant opposed the application and submitted that the Respondent had had sufficient time to prepare their case and that the lateness of the Respondent’s application placed her at a significant disadvantage as she had not had additional time to prepare for additional witnesses. The Claimant submitted that she had been ambushed by the Respondent and that there would be greater prejudice to her if the application was allowed. She also asked the Tribunal to bear in mind that she does not have legal representation.[11]The Respondent submitted that the additional witness statements consisted of approximately 4 pages and that the Claimant has not identified any prejudice. The Respondent submitted that there would be prejudice to the Respondent if the application was not allowed. The Respondent submitted that these are relevant witnesses and the Tribunal would need to consider their evidence in order to make a decision on the issues requiring the Tribunal’s adjudication as the Tribunal will need to consider what was in the mind of Ms Monfries in relation to the search carried out on 13 October 2022 and in the mind of Mr Pitts in relation to the allegations relating to the complaint the Claimant made to him on 14 October 2022 and the allegation that he failed to register the Claimant’s complaint as a formal grievance on 24 October 2022.[12]We considered both parties’ submissions and concluded that the application should be granted. The evidence of Mr Pitts and Ms Monfries is central to the Claimant’s claims. Ms Monfries’ evidence relates to the search on 13 October 2022 which the Claimant says was discriminatory. Mr Pitts’ evidence will assist the Tribunal in relation to his response to the Claimant’s complaint on 14 October 2022 and her request that her grievance be formalised on 24 October 2022.[13]We were mindful that the Claimant is not legally represented in these proceedings and we were also mindful that the Claimant had only recently received the witness statements. However, we concluded that the witness statements were not lengthy, the Claimant confirmed that she had read the statements and we concluded that the Claimant had had sufficient time to consider the additional witness statements.[14]We also concluded that allowing the Respondent’s application would assist the Claimant in presenting her claim as she would have the opportunity to cross-examine both witnesses on their evidence. In reaching our decision, we took into account the overriding objective and the requirement to deal with cases fairly and justly. We concluded that the prejudice of not allowing the Respondent’s application weighed heavier on the Respondent than the prejudice of allowing the application did on the Claimant. We also concluded that we could mitigate any prejudice to the Claimant by allowing her additional time to prepare questions for the additional witnesses and by adjusting the order in which the witnesses gave their oral evidence. We concluded that it was in the interests of justice to allow the Respondent’s application. Claimant’s application to amend her claim[15]The Claimant had emailed the Tribunal on 11 June 2024 seeking permission to amend her claim. The Respondent did not oppose the Claimant’s application although it has stated that it reserves its position in relation to costs in the event that the Claimant’s allegations are unsuccessful.[16]We considered the Claimant’s application to amend her claim. We considered that in the last paragraph of her ET1, the Claimant stated that the grievance process prolonged the act of discrimination and harassment. The Claimant’s position is that this was because of her race and with the purpose or effect of violating her dignity or to create a hostile, degrading, offensive, humiliating environment. She believes that the outcome of the grievance was discriminatory and alleges that her account of events was disregarded. The Claimant says that the amendment is simply her putting a new label on facts that are already pleaded in her claim form. The Claimant says she is not seeking to add new heads of claim but is instead seeking to substantiate allegations which fall within the existing heads of claim. The Claimant says that if the amendment is not allowed she will be severely prejudiced.[17]We carefully considered both parties’ submissions and concluded that the Claimant’s application should be allowed.[18]In reaching our decision, we considered Selkent Bus Co Limited v Moore 1996 ICR 836 EAT and Abercrombie v Aga Rangemaster Limited [2014] ICR 209. The Tribunal must consider all the circumstances in light of the overriding objective, including the balance of hardship and injustice between the parties, the nature of the amendment, and the timing and manner of the application to amend. We considered all the circumstances of the case and the balance of hardship and concluded that the amendments should be allowed.[19]The Claimant’s ET1 claim form set out her claim in broad terms. We were mindful that the claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond.[20]We have considered the ET1 claim form and we are satisfied that the relevant matters were already set out in the claim form albeit that they did not have a legal label attached to them. The particulars of claim attached to the ET1 refers to the Claimant’s belief that the grievance process prolonged the act of discrimination and harassment. We accept that it was open to the Claimant to include full details in her claim form. However, we have borne in mind that at the time the Claimant completed the ET1 claim form, she did not have a legal representative. We are satisfied that the Claimant’s application seeks to amplify the content of her ET1 claim form rather than to introduce an entirely new complaint.[21]We also considered the timing of application. The application has been made very late and in close proximity to the hearing today. However, we were mindful that the Respondent does not oppose the amendments and has already updated their grounds of response. We concluded that there is no prejudice to the Respondent with regards to the timing of the application.[22]The focus when looking at whether an amendment should be granted is whether the amendment is likely to involve a substantially different enquiry from the existing claim, balancing the disadvantage that would be caused by allowing the amendments against the disadvantage caused by refusing to allow them.[23]Whether to allow an amendment is a matter of discretion and we considered that the balance of hardship fell on the Claimant should the amendment not be allowed. The Respondent is unlikely to suffer significant prejudice should the amendment be granted. We are satisfied that this is a relabelling exercise and that there is very little, if any, prejudice to the Respondent because the substance of the matters referred to in the ET1 claim form and particulars of claim would have to be considered by the Tribunal in any event. The same witnesses will be called and the Tribunal will need to consider the same documents. We are satisfied that there will not be a disproportionate delay and that it is in the interests of justice to allow the amendments.[24]As this is a relabelling of the Claimant’s existing claim, we do not need to consider time limits in relation to the amendments. However, we do need to consider time limits in relation to the claim overall. At its highest, the Claimant’s case appears to be an allegation that the failure to deal with the grievance investigation, the appeal and the outcome of the grievance itself, amounted to an act or continuing acts of direct discrimination. Time limits[25]Following the Claimant’s application to amend her claim and include the allegations that the grievance process and outcome were discriminatory, on the face of it, the Claimant may be able to establish that these form part of a series of continuing acts or conduct extending over a period.[26]The main issue for the Tribunal is whether it is possible to identify some fact or feature linking the series of acts such that they may properly be regarded as amounting to a single continuing state of affairs rather than a series of unconnected or isolated acts.[27]If an alleged act is found not to amount to unlawful discrimination, then it cannot form part of ‘conduct extending over a period’, with the effect that if a Tribunal considers several constituent acts taking place over the space of a year and finds only the first to be discriminatory, it would not be open to it to conclude that there was nevertheless conduct extending over the year.[28]The Tribunal has the discretion to extend time limits. If a claim is out of time, the burden is on the Claimant to convince the tribunal that it would be just and equitable to extend time.[29]In order to determine whether the Claimant’s complaints are in time and if not, whether or not it would be just and equitable to extend time limits, it is necessary for the Tribunal to hear the evidence in relation to the allegations made by the Claimant to determine whether the acts complained of give rise to conduct extending over a period. We therefore considered time limits in our overall decision making and address time limits in our decision rather than as a preliminary issue.[30]The Respondent’s position is that the Claimant’s original complaint and as amended is not within the jurisdiction of the Employment Tribunal as it was brought out of time. The Claimant’s position is that the acts which she alleges were discriminatory in nature gave rise to conduct extending over a period of time. The Respondent’s position is that the alleged acts to which the complaint relates, that is, the search on 13 October 2022 and the request to formalise the grievance on 24 October 2022, mean that the time limits for presenting a complaint under section 123 of the Equality Act 2010 expired on 12 January 2023 and 23 January 2023. Early conciliation started on 4 April 2023 and the Respondent’s position is that the Claimant’s claims are out of time. The Respondent disputes that the grievance process prolonged the alleged acts of discrimination as asserted by the Claimant and/or that it gave rise to conduct extending over a period of time.[31]We considered the guidance in the case of Galilee v Commissioner of Police of the Metropolis 2018 ICR 634, EAT. It is not always necessary to determine time points as part of the amendment application. HHJ Hand considered that the question of whether there has been a “continuing act” or whether it is just and equitable to extend time should usually be the subject of a final decision after hearing the evidence. We do not discount the possibility that, in clear circumstances, it might be possible to make a decision on those matters without hearing evidence, but we agree with HHJ Hand that this would be an unusual procedural event. The outcome of Stage 2 of the Claimant’s grievance was communicated to her by letter dated 12 May 2023. The Claimant’s ET1 was presented on 14 June 2023. On the face of it, if the Claimant establishes that the grievance process itself gave rise to conduct extending over a period of time, her complaints were brought within the statutory 3 month time limit. If she does not establish it, then on the face of it her complaints are out of time. In order to reach a conclusion on time limits, it is necessary for the Tribunal to hear the evidence in relation to the acts complained of and we informed the parties that our decision on time limits would be addressed in our final decision once we had heard all of the evidence. THE CLAIMS AND ISSUES[39]Having dealt with the preliminary issues, we moved to clarify the issues that were before the Tribunal. Mr Salter had prepared a note to assist the Tribunal which was forwarded to the panel during our initial discussions with the parties. The note included a proposed timetable, list of relevant people, neutral chronology and proposed list of issues. We are grateful to Mr Salter and the panel found the document to be of assistance during the hearing and our deliberations. We agreed with the parties that the list of issues in Mr Salter’s note would be adopted as the list of issues for the hearing save for amending the acts complained of to include the grievance process (Stage 1, Stage 2 and outcome) following the Claimant’s application to amend her claim.[40]The issues for the Tribunal to decide were as follows: Acts Complained of[41]The Claimant complains of the following acts: 41.1. Being subject to a private search on 13 October 2022; 41.2. Neither Karen Yorath nor Darren Pitts giving her a substantive response to the complaint she raised with them on 14 October 2022 about that search; 41.3. Darren Pitts not registering her complaint as an official grievance as requested by her on 24 October 2022; 41.4. The Respondent’s failure to deal with the grievance process (stage 1, Stage 2 and the outcome) in an appropriate manner and in accordance with their own policies and procedures. Time/limitation issues[42]Were all of the Claimant’s complaints presented within the time limits set out in sections 123(1)(a) & (b) of the Equality Act 2010? Dealing with this issue may involve consideration of subsidiary issues including whether there was an act and/or conduct extending over a period, whether time should be extended on a “just and equitable” basis.[43]Given the date of the acts complained of,13, 14 and 24 October 2022, the claim form should have been presented by 12, 13 and 23 January 2023, respectively. Equality Act 2010 Claims: Protected Characteristic:[44]The Claimant relies upon the protected characteristic of race. Section 13: Direct Discrimination[45]Are these detriments within the meaning of section 39 of the Equality Act?[46]If so, can the Claimant prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of race?[47]If so, what is the Respondent’s explanation? Can it prove a non-discriminatory reason for any proven treatment? Section 26: Harassment related to race[48]Did the Respondent engage in conduct complained of?[49]If so, was the conduct unwanted?[50]If so, was the conduct related to race?[51]Did the conduct have the purpose of:(a) violating the Claimant’s dignity; or(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?[52]If not, did the conduct have the effect of:(a) violating the Claimant’s dignity; or(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?[53]In considering whether the conduct had that effect, the Tribunal will consider the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Duplication of Harassment and Direct Discrimination[54]The Claimant’s complaints relating to race are presented as both harassment and/or direct discrimination. The Tribunal will determine these allegations in the following manner.[55]In the first place the allegations will be considered as allegations of harassment. If any specific factual allegation is not proven, then it will be dismissed as an allegation of both harassment and direct discrimination.[56]If the factual allegation is proven, then the Tribunal will apply the statutory test for harassment under section 26 of the Equality Act 2010. If that allegation of harassment is made out, then it will be dismissed as an allegation of direct discrimination because under section 212(1) Equality Act the definition of detriment does not include conduct which amounts to harassment.[57]If the factual allegation is proven, but the statutory test for harassment is not made out, the tribunal will then consider whether that allegation amounts to direct discrimination under the relevant statutory test. Remedy[58]The Claimant initially claimed £1,011,150 in compensation, containing claims for:(a)£735,000 injury to feelings;(b)£25,000 for aggravated damages;(c) both of these are subject to 25% uplift for unreasonable failures to comply with the ACAS Code of Practise(d) Interest thereon.[59]This decision does not address remedy as it was agreed with the parties that in the event that the Claimant’s claim succeeds, a separate hearing would be held to deal with remedy. However, we record that the Claimant’s written submissions set out that she is now seeking a compensatory award of £25 million inclusive of any uplift and interest. Procedure, documents and evidence heard Type of hearing 58. The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The parties agreed to the hearing being conducted in this way. The participants were told that it was an offence to record the proceedings. There were some minor connectivity issues during the hearing but not to the extent that they interfered with the progress of the hearing. 59. The Claimant represented herself at the hearing. The Respondent was represented by Mr Michael Salter, counsel. The witnesses for the respondent were Mr Jay Mirza, Ms Karen Yorath, Ms Aleksandra Kosiba, Ms Chloe Finlay, Mr Darren Pitts and Ms Sorien Monfries.[60]We had a bundle of documents which consisted of 279 pages plus index. We also had witness statements from the Claimant and the Respondent’s witnesses. We heard oral evidence from the Claimant and from the Respondent’s witnesses. All of the witnesses gave oral evidence by way of affirmation.[61]The Claimant had a note-taker (Ms MacDonald) attending the hearing who was present in the same room as her. We explained to the Claimant that when giving evidence, it is important that nobody is prompting her. Whilst the Claimant was giving evidence, Ms MacDonald went into a separate room and maintained her connection to the hearing room separately. We are grateful to Ms Brown and to Ms MacDonald for their understanding and co-operation in this regard. THE LAW Conduct extending over a period[63]Section 123(3)(a) of the Equality Act 2010 provides that “conduct extending over a period is to be treated as done at the end of the period.” 64. ‘Conduct extending over a period’ (also known as a ‘continuing act’) may arise not solely from a policy, rule, scheme, regime or practice but also from numerous alleged incidents of discrimination which are linked to one another and are evidence of “an ongoing situation or continuing state of affairs” (Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 96, CA, paras 48 and 52 per Mummery LJ, approved by the Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548, CA).[65]In Coutts & Co plc v Cure [2005] ICR 1098, EAT, the Employment Appeal Tribunal (HHJ McMullen QC presiding), set out categories into which the factual circumstances of alleged discrimination may fall, found (albeit obiter) that there are two types of situation in which alleged discrimination may constitute ‘conduct extending over a period’:a. where there is a discriminatory rule or policy, by reference to which decisions are made from time to time; andb. where there have been a series of discriminatory acts, whether or not set against a background of a discriminatory policy.[66]In the former case, conduct will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387).[67]In the latter case, the main issue for the Employment Tribunal tends to be whether it is possible to identify some fact or feature linking the series of acts such that they may properly be regarded as amounting to a single continuing state of affairs rather than a series of unconnected or isolated acts (Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 96, CA). A single person being responsible for discriminatory acts is a relevant but not conclusive factor in deciding whether an act has extended over a period: Aziz v FDA [2010] EWCA Civ 304, CA. In Greco v General Physics UK Ltd EAT 0114/16, the EAT held that despite six of seven acts of sex discrimination involving a particular manager, that involvement was not a conclusive factor and the employment tribunal was justified in finding that the allegations concerned different incidents treated as individual matters. Accordingly, they were not considered as part of a continuing act and, in consequence, some were out of time.[68]If an alleged act is found not to amount to unlawful discrimination, then it cannot form part of ‘conduct extending over a period’, with the effect that “[i]f a Tribunal considers several constituent acts taking place over the space of a year and finds only the first to be discriminatory, it would not be open to it to conclude that there was nevertheless conduct extending over the year”: South Western Ambulance Service NHS Foundation Trust v King [2020] IRLR 168, EAT, per Choudhury J (at 172-173, para. 33). Discretion to extend time[69]If a claim is out of time, the burden is on the Claimant to convince the Tribunal that it would be just and equitable to extend time: Robertson v Bexley Community Centre [2003] EWCA Civ 576, [2003] IRLR 434. As the Court of Appeal (per Auld LJ) said in Robertson, “there is no presumption that [a Tribunal should exercise its discretion to extend time on the 'just and equitable' ground] unless they can justify failure to exercise the discretion. Quite the reverse. A Tribunal cannot hear a claim unless the Claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule” (para. 25). However, the Court of Appeal in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 dismissed any suggestion that Auld LJ’s comments in Robertson were to be read as encouraging tribunals to exercise their discretion in a restrictive manner.[70]The just and equitable formula gives the Tribunal “a wide discretion to do what it thinks is just and equitable in the circumstances … they entitle the [employment] Tribunal to take into account anything which it judges to be relevant”: Hutchison v Westward Television Ltd [1977] ICR 279, EAT.[71]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194, the Court of Appeal (per Leggatt LJ) gave the following guidance in relation to the just and equitable discretion: “[f]actors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh)” (1201E, para. 19).[72]A delay caused by a Claimant invoking an internal grievance or disciplinary appeal procedure prior to commencing proceedings is just one factor to be taken into account by a Tribunal when considering whether to extend time: Robinson v Post Office [2000] IRLR 804, EAT, approved by the Court of Appeal in Apelogun-Gabriels v London Borough of Lambeth [2002] ICR 713. As the EAT said in Robinson (para. 25, per Lindsay P): “as the law stands an employee who awaits the outcome of an internal appeal and delays the launching of an [ET1] must realise that he is running a real danger.” Burden of proof[73]Section 136 of the Equality Act sets out the burden of proof in discrimination cases. This is sometimes referred to as the “shifting burden of proof”.[74]The burden of proof is initially on the Claimant to prove facts from which an Employment Tribunal could conclude, in the absence of any other explanation, the Respondent committed an unlawful act of discrimination.[75]The Claimant must show a probability, rather than a mere possibility, that the Respondent has committed the unlawful act: Igen v Wong [2005] ICR 931, CA. As Elias P put it in Laing v Manchester City Council and anor [2006] ICR 1519, “it is for the employee to prove that he suffered the treatment, not merely to assert it, and this must be done to the satisfaction of the tribunal after all the evidence has been considered” (para. 64). As Mummery LJ said in Madarassy v Nomura International plc [2007] ICR 867, “[t]he bare facts of a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination” (para. 56). The burden of proof does not shift simply on proof of a difference in treatment and the difference in status.[76]In deciding whether there is enough to shift the burden of proof to the Respondent, it will always be necessary to have regard to the choice of comparator, actual or hypothetical, and to ensure that they have relevant circumstances which are the same or not materially different as those of the claimant having regard to section 23 of the Equality Act. Evidence of the treatment of a person whose circumstances materially differ to those of the Claimant is inherently less persuasive than that of a person whose circumstances do not materially differ. If anything more is required to shift the burden of proof when there is an actual comparator, it will be less than would be the case if a Claimant compares their treatment with a person whose circumstances are similar, but materially different, so that there is not an actual comparator.[77]If the Claimant does this, the burden then shifts to the employer to provide an adequate, non-discriminatory, explanation for the alleged detrimental treatment. It is then for the Respondent to show that the Claimant’s treatment was in no sense whatsoever to do with her race.[78]In a situation where direct discrimination is said to exist one approach is to adopt a two-stage test. This is to first ask whether there was less favourable treatment, and secondly to ask whether it was on the grounds of a protected characteristic. In other words, to ask the “reason why” question after less favourable treatment has been proved to exist.[79]Turning to the burden of proof in a claim of harassment, In a complaint of harassment, the claimant will need to establish on the balance of probabilities that they have been subjected to unwanted conduct which had the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. They will also need to adduce some evidence to suggest that the conduct could be related to a protected characteristic. Harassment[80]Section 40 of the Equality Act 2010 provides that an employer must not, in relation to employment by him, harass an employee.[81]Section 26(1) of the Equality Act 2010 provides that a person(a) (A) harasses another(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[82]Section 26(4) of the Equality Act deals with matters to be taken into account when deciding whether unwanted conduct had the relevant effect. The Tribunal must take into account the perception of the Claimant, the other circumstances of the case and whether it was reasonable for the conduct to have had that effect.[83]The Tribunal is required to reach conclusions on whether the conduct complained of was unwanted and, if so, whether it had the necessary purpose or effect and, if it did, whether it was related to race. Unwanted conduct means the same as unwelcome or uninvited, and specifically unwanted by the Claimant – Thomas Sanderson Blinds Ltd v English UKEAT/0316/10.[84]It is clear that the requirement for the conduct to be “related to” race needs a broader enquiry than whether conduct is “because of race” like direct discrimination: Bakkali v Greater Manchester Buses (South) Limited UKEAT/0176/17. Protection from such behaviour only arises if it is related to the protected characteristic - Warby v Wunda Group Plc UKEAT/0434/11/CEA. In assessing whether it was related to race, the form of the conduct in question is more important than why the Respondent engaged in it or even how either party perceived it.[85]It can be appropriate to consider the motivation and thought processes of alleged harassers when considering whether their conduct amounts to harassment - Unite the Union v Nailard [2018] IRLR 730.[86]As to whether the conduct had the requisite effect, there are both subjective considerations – the Claimant’s perception of the impact on her – but also objective considerations including whether it was reasonable for it to have the effect on this particular Claimant, the purpose of the remark, and all the surrounding context - Richmond Pharmacology Ltd v Dhaliwal [2009] ICR 724. Conduct which is trivial or transitory is unlikely to be sufficient.[87]Mr. Justice Underhill, as he then was, said in that case: “A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That…creates an objective standard … whether it was reasonable for a Claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt …” [15]. and “…Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…” [22].[88]In HM Land Registry v Grant [2011] EWCA Civ 769, Elias LJ said: “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.”[89]If something was said or done innocently by the Respondent that may be relevant to the question of reasonableness under section 26(4)(c).[90]As regards the words “violating and intimidating” these are strong words and will usually require evidence of a serious impact or marked effects. An “environment” can potentially be created by an isolated comment but the effects must be lasting. The identity of the person who made the comment, and whether it is heard by others can be relevant factors. Where there are several instances of alleged harassment, the Tribunal can take a cumulative approach in determining whether the statutory test is met: Driskel v Peninsula Business Services Ltd [2000] IRLR 151. In GMBU v Henderson [2015] 451 Simler J said, “..although isolated acts may be regarded as harassment, they must reach a degree of seriousness before doing so.”[91]If it was not reasonable for the conduct to be regarded as violating the Claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so - Pemberton v Inwood [2018] ICR 1291. Direct race discrimination[92]The law on direct discrimination is set out in section 13 of the Equality Act 2010.[93]Section 13(1) of the Equality Act 2010 provides that: “a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[94]There are two aspects to direct discrimination that must be considered by the Tribunal. The first is the alleged less favourable treatment, and the second is the reason for the treatment complained about with a causal link between the two.[95]Less favourable treatment does not mean unreasonable treatment, but it also does not mean detrimental treatment or unfavourable treatment or simply different treatment. There must be a comparison either actually or hypothetically that shows less favourable treatment. It is the treatment rather than the consequences of the treatment that are the subject of the comparison - Balgobin v Tower Hamlets London Borough Council [1987] ICR 829.[96]As regards what may amount to less favourable treatment, this does not require a Claimant to show that objectively they are less well off as a result of the conduct complained of. It may be sufficient for a Claimant to reasonably say that they would have preferred not to have been treated differently - Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48. In that case it was held: “It cannot, in my opinion, be enough… simply to show that the complainant has been treated differently. There must also be a quality in the treatment that enables the complainant reasonably to complain about it.” [76][97]It is insufficient for a Claimant to argue that the Respondent would have treated them less favourably in certain circumstances. The alleged less favourable treatment must actually have occurred in order for liability to arise - Baldwin v Brighton and Hove City Council [2007] IRLR 232.[98]The question of whether a person is treated less favourably is a question of objective fact that necessarily involves a comparison with others. The comparator can be either an actual comparator (where there is no material difference in the circumstances of the comparator to that of the Claimant) or as is usually the case, a hypothetical comparator.[99]However in R v The Governing Body of JFS and the Admissions Appeal Panel [2009] UKSC 15 it was confirmed that where it is self-evident that discrimination is taking place because there is reference made to the protected characteristic, it is not necessary to analyse the motives of the discriminator as they are irrelevant. However where discrimination is not immediately apparent, it is necessary to analyse the motivation (both conscious and unconscious) of the alleged discriminator but only for determining whether the characteristic played any part in the alleged discriminatory behaviour.[100]There is no justification defence for a direct race discrimination claim. Unintentional direct discrimination done with or without good intention is therefore just as unlawful as intentional direct discrimination,. ACAS uplift[101]Where there has been an unreasonable failure to follow ACAS codes of practice on the part of the employer, the Tribunal is able to uplift an award by up to 25% if it considers it just and equitable to do so (section 207A(2) Trade Union and Labour Relations (Consolidation) Act 1992). The Tribunal is also able to reduce an award by up to 25% if it is considered just and equitable to do so in circumstances where an employee has unreasonably failed to comply with ACAS codes of practice (section 207A(3) Trade Union and Labour Relations (Consolidation) Act 1992). SUBMISSIONS[102]Due to the additional time required for the Respondent’s additional witnesses and the additional time that the Claimant required to put her questions to the Respondent’s witnesses, there was insufficient time for both parties to make oral closing submissions and for the Panel to deliberate and deliver a decision. We agreed that both parties would provide written submissions to the Tribunal after the conclusion of the hearing, that the Panel would reconvene for deliberations and a reserved judgment would be given.[103]The Respondent provided written submissions of 26 pages. It is not necessary for us to set out those submissions in detail but they can be summarised as follows:[104]The Respondent’s position is that the Claimant’s claim of harassment is misconceived and that none of the acts complained of relate to race and that there is no merit to these claims in any event; there is no merit to the Claimant’s claim of direct discrimination and there is nothing from which any reasonable inference can be drawn that any treatment complained of was influenced by the Claimant’s race. The Respondent says that the claims for events in October 2022 are out of time, there is nothing to show that they form part of a course of conduct and there is nothing to support an extension of time for a period that is just and equitable.[105]The Claimant provided written submissions of 91 pages. Again, it is not necessary for us to set out those submissions in detail. However, we comment that the Claimant’s written submissions sought to present matters that were not advanced by the Claimant during the hearing and in part, amount to a reframing of her written and oral testimony. There are a number of allegations made in the Claimant’s submissions relating to the conduct and evidence of the Respondent’s witnesses. We are mindful that the Claimant is representing herself in the proceedings and have borne this in mind when considering the Claimant’s submissions. We have focused on the documentary evidence and oral evidence heard at the hearing when considering the Claimant's submissions.[106]In her written submissions, the Claimant states that the only issue that could be defined as direct discrimination is the private search. She asks the Tribunal to determine that all six allegations pleaded amount to harassment.[107]The Claimant’s written submissions have been presented on the basis she describes herself as Black/Black British. The Claimant’s claims of discrimination on the grounds of race, both harassment and direct discrimination claims, were brought on the basis that the Claimant describes herself as Black Caribbean. This was agreed at the hearing before Employment Judge Anstis on 29 February 2024 and set out in the case management order dated 1 March 2024. This was also discussed at the start of the hearing on 29 July 2024. The Claimant has not made an application to amend her claim and her claim therefore proceeds on the basis that she describes herself as Black Caribbean. Again, we have borne in mind that the Claimant is representing herself in the proceedings when considering the Claimant’s submissions.[108]The Respondent submits that the Claimant’s allegations of harassment are misconceived and that her allegations are more properly addressed as claims of direct discrimination. We were mindful that the Claimant is not legally represented and her use of the phrases “related to my race” and “because of my race” during cross-examination of the Respondent’s witnesses are due to a lack of legal training in relation to the nuances of discrimination law. She has asked the Tribunal to consider her complaints as harassment and in the alternative as direct discrimination and the Tribunal will consider the claims as presented.[109]We fully considered the submissions made and the parties can be assured that they were taken into account in coming to our decision. FINDINGS OF FACT[110]From the evidence and submissions, we made the following findings of fact. We made our findings after considering all of the evidence before us, taking into account relevant documents where they exist, the accounts given by the witnesses (both in their respective written statements and oral evidence). Where it has been necessary to resolve disputes about what happened we have done so on the balance of probabilities taking into account our assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence, including the documentary evidence. In this decision we do not address every episode covered by the evidence, or set out all of the evidence, even where it is disputed. Matters on which we make no finding or do not make a finding to the same level of detail as the evidence presented to us, reflects, in accordance with the overriding objective, the extent to which we consider the particular matter assists us in determining the relevant issues. We have set up our principal findings of fact on the evidence before us that we consider are necessary to fairly determine the claim and issues.[111]In terms of credibility of witnesses, much in this case turned on the credibility of the evidence of the Claimant and Ms Monfries. We found the Claimant to be largely inconsistent in her oral and written evidence whereas in contrast, we found Ms Monfries’ evidence to be largely consistent throughout. When considering the reliability of evidence which is not supported by contemporaneous documentation, we considered the principles set out in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm): “We are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are; Memories are fluid and malleable, being constantly rewritten whenever they are retrieved; External information can intrude into a witness’s memory as can his or her own thoughts and beliefs; both can cause dramatic changes in recollection; Memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory is already weak due to the passage of time. The best approach for a judge to adopt is to base factual findings on inferences drawn from the documentary evidence and known or probable facts…”[112]The Respondent is the operator of Heathrow Airport. The Claimant was employed by the Respondent as Delivery Project Manager from 18 July 2022 to 7 June 2023.[113]Within the airport, there are security requirements to ensure the safety of all colleagues and passengers. This includes the requirement for all colleagues and contractors who require access to restricted areas to pass through security. As part of this security process, a private search may be necessary.[114]It is common ground that on 13 October 2022, the Claimant required access to the secure airside area of the airport for the purposes of a meeting with a third-party contractor. The Claimant was therefore required to pass through security. The Claimant accepted in her own evidence that security at an airport is important and that the consequences of getting it wrong can be catastrophic.[115]The Claimant accepted when cross-examined that the security process involves an individual passing through the archway scanner area. The archway has two functions:(1) metal detector and(2) body scanner. If the archway identifies a concern (referred to as a point of activation), the body scanner identifies the zone of concern. The individual then steps to one side and is asked to consent to a search which involves being patted down over their clothing and being scanned with a hand-held metal detector / wand. If the security officer is able to identify the reason that the archway scanner has been triggered and is satisfied that there is no longer a security risk or is able to otherwise satisfy themselves that there is no security concern, then no further action is taken. If the security officer is not satisfied that there is no security concern, a private search is the next step in the security process.[116]The Claimant says that a private search is not something that is usually carried out and refers to anecdotal comments from colleagues. She has not produced any documentary evidence that supports this assertion and there are no witnesses or statements from witnesses before us to support this assertion. She was asked in the Stage 2 appeal hearing whether she could identify the colleagues who support this assertion. The Claimant referred to project managers not being “strip searched” and named Nicky Hibbs, Nick Coulson and Paul. There was no evidence from these individuals before the Tribunal.[117]The Respondent’s evidence is that a private search is part of the security process, that it is required when a security officer cannot satisfy themselves at the archway scanner point that an area of concern has been resolved. The Respondent’s witnesses were consistent and corroborative of each other’s testimony. The Respondent’s evidence, in Mr Mirza’s witness statement, is that around 8 private searches are estimated to be carried out per shift. The Claimant accepted under cross-examination that Mr Mirza is likely to know a lot about airport security but did not agree that 8 private searches per shift are undertaken. When questioned by the Claimant, Mr Mirza reiterated that around 8 searches are carried out per shift and clarified that this specifically related to CP8, the security checkpoint that the Claimant went through on 13 October 2022.[118]Mr Mirza was consistent in his evidence about the security process and this did not alter throughout his questioning. His oral evidence is corroborated by the evidence from Ms Monfries, Ms Kosiba and Ms Finlay. The Respondent’s evidence points to a private search being a standard step in the security process and on balance, we prefer the Respondent’s position. We consider that the Claimant’s case that a private search is not part of the security process to be less plausible. The Claimant accepted in the Stage 1 hearing that a private search is part of standard procedure within security but now does not accept that. On balance, we prefer Mr Mirza’s evidence in this regard. He has been employed by the Respondent for 14 years. He is currently employed as Security Operations Lead and has been in that role since October 2023, prior to this he was employed as Security Operations Manager. We are satisfied that he is well placed to provide evidence to the Tribunal about the security process and how many private searches are carried out. We find that a private search is a standard step carried out in the security process in circumstances where the security officer is not satisfied that they have identified what has caused the scanner to trigger and where they have not satisfied themselves that there is no security concern.[119]The Claimant’s case is that she walked through the scanner, her ID was checked by Ms Monfries who asked her to step to the side so that a body scan could be carried out. The Claimant’s written evidence is that she had no problem with this and that she complied.[120]The Claimant was unclear in her oral and written evidence as to whether the archway scanner activated and her case is that she was selected for search on the grounds of race. The Claimant’s case is that her necklace could not have caused the archway scanner to trigger as it was not metal. The Claimant accepted when cross-examined that the archway cannot select on the grounds of race. The Claimant’s grievance letter dated 10 January 2023, sent on 17 January 2023 says that she was asked to step to one side to do a random body scan. The meeting notes from the Stage 1 hearing record that the Claimant stated that she didn’t hear the alarm when she went through the archway. The Claimant’s witness statement at paragraph 5 says that there was no alarm. The Claimant was inconsistent in her oral evidence when questioned by Mr Salter about whether the archway activated, answering that she accepted that is what Ms Monfries and Mr Mirza have said in their witness statements, also answering that she didn’t accept that the scanner activated, that it did activate and that she wasn’t sure.[121]The Respondent’s case is that the archway scanner fully activated when the Claimant passed through and that Ms Monfries then patted the Claimant down as a full body search and then searched the Claimant with a hand-held metal detector/wand. Ms Monfries’ evidence accords with the Claimant’s evidence in that she recalls the Claimant was wearing a wooden necklace and that the Claimant offered to remove this. However, Ms Monfries’ evidence is that she did not think that this was the cause of the activation and she needed to carry out further steps in the security process to be satisfied that there was no security concern.[122]The Respondent’s witness evidence was consistent that the archway scanner activated. Ms Monfries’ witness statement at paragraph 4 states that the Claimant “fully activated”. Ms Monfries expanded and clarified this in her oral testimony and was consistent that the alarm had activated. This is corroborated by Mr Mirza’s witness statement. Mr Mirza’s oral evidence was that he viewed the CCTV the day following the search and that this showed that the archway scanner fully activated.[123]We prefer the Respondent’s evidence in this regard and found their witnesses to be consistent. We consider it significant that the witnesses provide accounts which corroborate a consistent version. In contrast, the Claimant’s version of events seemed to change. We found the Claimant to be inconsistent in her oral and written testimony. The Claimant’s written submissions refer to her not wearing an underwired bra for health reasons although she did not refer to this in any of her written evidence or oral testimony, only raising it at the end of her questioning of Ms Monfries. We therefore attach no evidential weight to her submission. We are satisfied on the evidence that something triggered the archway scanner causing it to activate.[124]We accept the Respondent’s evidence and we find that the archway scanner activated. We find this to be a more plausible explanation for the Claimant being asked to step aside for a body search. We accept that the scanner is triggered by metal and that it identifies an area of concern. There was no evidence that this was a random search; the focus of the pat down and HHMD wand scan in the public area and the focus of the private search were in the upper body and bra area. This is consistent with Mr Mirza’s and Ms Monfries’ accounts that the archway triggered a zone of activation in the chest/upper body area whereas a random search would have required a scan of the whole body rather than an identified zone.[125]The Claimant says she was patted down three times over her clothing which she says is excessive. The Claimant says she asked “is there a problem” and Ms Monfries did not reply but continued with the search. The Claimant says Ms Monfries repeatedly patted around the bra area and the claimant asked again “is there a problem”. Ms Monfries replied “I am uncomfortable” and the Claimant asked “uncomfortable with what” and Ms Monfries replied “I’m just uncomfortable”.[126]The Claimant says Ms Monfries appeared to focus on her bra area and the Claimant informed Ms Monfries that she was wearing a necklace (wooden) and could bring this outside her clothing and be re-scanned/patted again. The Claimant says Ms Monfries responded “I’m just not comfortable” and did not respond to the Claimant’s suggestion.[127]The Claimant says Ms Monfries then turned to one of her colleagues and said that she wanted to do a private search. The Claimant says that both she and the colleague (not identified) said at the same time “a private search for what”. Ms Monfries responded “I’m just not comfortable”. The colleague then asked what the problem was as carrying out a private search would result in both female security officers being away from the control post. Ms Monfries replied “I know but I’m just not comfortable and I want to do a private search”. The Claimant says that she was still trying to ask Ms Monfries what the problem was and that Ms Monfries ignored her. We noted the Claimant’s position that Ms Monfries did not explain to her why a private search was being requested.[128]Having considered all of the evidence, we concluded that the parties are in broad agreement as to the body scan and search that took place in the public area. There were some minor inconsistencies in the evidence in terms of the description of the focus of the search area for example, front area, chest/upper body area, necklace area and bra area. We conclude that this was an inconsistency of vocabulary rather than evidence that supports a conclusion that the scanner did not activate. We find that the Claimant offered to bring her necklace outside her clothing but we find that Ms Monfries was not satisfied that this was the cause of the archway activation. We find that Ms Monfries had not been able to satisfy herself that there were no security concerns following the search of the Claimant that took place in the public area around CP8 and we find that in light of this, the next stage of the security process, namely a private search, was required. We find that the Claimant was not given a detailed explanation of the reason for the private search.[129]The Claimant was then taken to a side room where the private search was carried out. The Claimant describes this as being marched with one security guard in front of her and one behind her into a side room. The Claimant accepted in her oral evidence that one security guard in front and another behind is Civil Aviation Authority regulated procedure. The Claimant was asked to undo her shirt and Ms Monfries scanned the wand over the Claimant’s upper chest/bra area. The Claimant stated that the other security guard was stood in front of the door to prevent her leaving the room. The Respondent’s case is that this was to prevent someone else from entering the room during the private search. We find the Respondent’s explanation more plausible.[130]We accept Ms Monfries’ evidence that following the private search, she was satisfied that there were no security concerns and that the Claimant could proceed airside.[131]The Claimant says that after the search had been completed, she was asked to complete a consent form. The Claimant refused to complete the form as it stated on the form that it was voluntary and left the room. The Claimant says that she felt as though she was being treated as a criminal, she felt embarrassed, humiliated, degraded and violated. The Claimant says that at no point was it explained to her that the private search was voluntary and that she had the option to decline although that would result in her not being allowed to proceed airside.[132]Ms Monfries’ witness statement states that the Claimant provided verbal consent for the private search and that she asked her to complete the written consent form after the search had been conducted. Ms Monfries further states that had the Claimant not provided verbal consent, she would not have proceeded with the search. Ms Monfries accepts that she should have asked the Claimant to complete the form prior to conducting the private search. In her oral evidence, when questioned by the claimant, Ms Monfries stated that the Claimant did sign the form. When questioned by the Tribunal, Ms Monfries stated that she placed the form in the security manager’s office but that she was unaware of what happened to the form after that.[133]Mr Mirza’s witness statement summarises his discussion with Ms Monfries after the Claimant had raised her initial complaint. He states that the consent form was not completed due to the Claimant refusing to sign it. He further states that in order to proceed to the secure airside area of the airport, the private search was necessary and that the Claimant would not have been allowed to proceed through to the secure airside area if she had declined.[134]The Respondent accepts that the process followed in relation to the search was not correct but says that the selection for search was not based on the Claimant’s race. The Respondent has taken steps to address the failure to follow the correct process with Ms Monfries and an entry was made on Ms Monfries’ employee record, known as a “green card”.[135]We considered whether the Claimant provided consent for the private search. The Claimant was consistent in her written and oral evidence that she had not given consent to the private search. We found Ms Monfries’ oral and written evidence on this point to be inconsistent with itself and with Mr Mirza’s evidence. We find that the Claimant did provide verbal consent for the first part of the search which took place in the public area. However, we find that she did not give verbal consent for the private search. We find that the explanation of the process did not make it clear to the Claimant that she had the option to decline the private search. The evidence before the Tribunal did not include the signed consent form referred to by Ms Monfries in her oral testimony. We find that the Claimant did not complete the written consent form. The complaint on 14 October 2022[136]The Claimant complained to her line manager Darren Pitts (Senior Project Manager) on 14 October 2022 about the search. The Claimant describes this in her witness statement as being raised informally.[137]Mr Pitts referred the matter the same day to his line manager, Karen Yorath (Infrastructure Delivery Director). We accept his evidence that his understanding was that Ms Yorath would now be dealing with the Claimant’s complaint.[138]On 14 October 2022, Ms Yorath contacted the Claimant to discuss her complaint and informed the Claimant that she needed to get some advice from HR. Ms Yorath discussed the Claimant’s complaint and informed her that she would contact the security team to investigate.[139]Ms Yorath contacted Lynsay Collins, (Security Operations Lead), on the same day.[140]On 19 October 2022, Ms Collins contacted Ms Yorath and asked for further information about the Claimant’s complaint.[141]We find that following these exchanges, the security team were looking into the Claimant’s complaint. Kieran Tedman (Security Operations Lead) reviewed the CCTV and was satisfied that the search was correctly undertaken from a procedural point of view. He saw from the CCTV that the archway alarm was activated. We were mindful that Mr Tedman had not provided a witness statement and was not present at the hearing, but we find that the contemporaneous message from Lauren McDonagh (HR Business Partner) sent on 31 October 2022 supports our conclusion that this took place.[142]On 24 October 2022, the Claimant contacted Mr Pitts as she had not received a response to her complaint. Her email stated as follows: “Following the incident on Thursday 13th October which I complained to you about the following day, I have now been waiting a week to hear HR’s response when Karen promised to come back to me last Monday.This incident as I explained has caused me severe humiliation, distress and anxiety, and I have asked several colleagues of their experiences of security and none of them have ever experienced anything similar. I feel this needs to be recorded and taken as seriously as it has affected me, therefore I feel the only way to ensure I feel protected should this happen in the future is to make an official grievance. This email is to inform you that that is the course of action I would like to take. Do I have to contact HR myself or will you let them know I want to raise a grievance?”[143]Mr Pitts forwarded the email to Ms Yorath on 24 October 2022 as he understood that Ms Yorath was dealing with the Claimant’s complaint.[144]After receiving Mr Pitt’s email, Ms Yorath chased Ms Collins for an update on 24 October 2022. She also contacted Nikki Measures (HR Business Partner) and advised that she had heard from Mr Pitts that the Claimant was considering a formal complaint. It is clear from the content of the Claimant’s email to Mr Pitts that she wished to make her complaint a formal grievance. We find that Ms Yorath did not give the Claimant’s email proper consideration and skimmed over the content, forming the incorrect conclusion that the matter remained within the informal stage of the grievance process. We accept Ms Yorath’s evidence that she misread the email.[145]Ms Yorath then contacted the Claimant on 24 October 2022 and informed her that Ms Monfries, was on leave so could not be spoken to about the incident until her return on 2 November 2022.[146]Ms Yorath chased Ms Collins on 31 October 2022 and advised that she was hoping to close the matter and get the Claimant to move on.[147]The Claimant was absent from work from 22 October 2022 to 15 November 2022. This was following a road traffic collision and she was also signed off by her GP as not fit for work due to work-related stress.[148]The Claimant met with Ms Yorath by Teams on 15 November 2022. Ms Yorath provided the Claimant with a verbal response to her complaint. Ms Yorath’s recollection is that the discussion was positive and that the Claimant appeared grateful that Ms Yorath was keeping her updated. The Claimant’s recollection is that Ms Yorath informed her that following the security team looking into the complaint, Ms Monfries had said that she thought the Claimant was aware that the private search was voluntary. Ms Yorath also informed the Claimant that training would be given to staff to reinforce that they should not presume that staff are aware that private searches are voluntary. The Claimant says that she informed Ms Yorath during the call that she was not satisfied with this response. There is no contemporaneous record of the call. We find that on balance, it is more likely than not that the Claimant raised this in the call with Ms Yorath on 15 November 2022.[149]The Claimant emailed Ms Yorath on 22 November 2022: “It was really good to speak with you last week regarding my grievance raised against security. I appreciate the feedback and you offer to escort me through severity (sic) in the future, albeit that the feedback it did not address my complaint. I am just wondering if you have any feedback and if I can have a written response to my grievance that would make me feel more confident about this not happening in the future and if it does I will have written proof that I have had an issue previously.”[150]We find that the Claimant was not provided with a satisfactory or timely response to her complaint made on 14 October 2022. Request to formalise grievance on 24 October 2022[151]On 24 October 2022, as the Claimant had not received a response from either Mr Pitts or Ms Yorath, she contacted Mr Pitts and advised him that she wished to formalise her grievance. Mr Pitts contacted the Claimant and told her that he would let Ms Yorath know. Mr Pitts’ evidence was that he understood that Ms Yorath was dealing with the matter. We find that Mr Pitts did not register the Claimant’s grievance as a formal grievance.[152]The Respondent accepts that the Claimant’s request to formalise her grievance on 24 October 2022 was not actioned in accordance with their own policies and procedures. 153.[154]Whilst the Claimant’s complaint is not that Ms Yorath failed to register the grievance formally, we consider it helpful to repeat our finding that Ms Yorath did not give the Claimant’s email proper consideration and skimmed over the content, forming the incorrect conclusion that the matter remained within the informal stage of the grievance process. We also find that Ms Yorath did not have a full understanding of the grievance policy and process that should be followed. Written response to the Claimant’s complaint[155]On 22 November 2022, the Claimant emailed Ms Yorath and requested a written response to her complaint.[156]Ms Yorath was ill in December 2022 and travelling between the UK and Ireland due to her mother being unwell during this period. Ms Yorath’s mother passed away in January 2023.[157]On 19 December 2022, the Claimant contacted Nikki Measures (HR manager) as she had not received a written response from Ms Yorath.[158]Ms Measures emailed the Claimant on 3 January 2023 and explained that the complaint had been managed under the informal stage of the policy and not the formal stage. It was also explained that if the Claimant was not satisfied with the informal process she could submit a stage 1 grievance and a copy of the relevant policy was provided. The Claimant was informed of the Employee Assistance Programme.[159]Ms Yorath emailed the Claimant on 3 January 2023 to explain the steps that had been taken in response to the Claimant’s complaint, and summarising the discussion between Ms Yorath and the Claimant on 15 November 2022. Ms Yorath apologised for the delay and she also included a copy of the grievance policy. “Happy New Year! I apologise for the delay in getting this email to you. Further to the conversations we have at the end of November I’d like to confirm the following. I have discussed the incident that took place as you were going airside through Campus security to attend a site visit with Lynsay Collins the Security Operations Lead. She identified the team that were on duty that night and had a conversation with them to determine what happened. She confirmed that the processes and procedures followed were correct, i.e., there was something detected that needed further investigation. She did also discover that there was a general belief amongst the team that as these control posts were not passenger facing areas and that most of those passing airside were colleagues or members of Team Heathrow, that everyone understood the process well and therefore the level of explanation required was minimal. Lynsay then sought out the training team that provide the ongoing training needs for all security officers to understand whether the correct behaviours were included in the training material. She will ensure that behavioural training forms part of the standard training modules to ensure that all officers recognise that everyone should be treated with respect, and assumptions about level of understanding or experience in using these control posts are not assumed. I understand Veleta that you believe that you have registered a formal grievance, however our HR business Partner has not received official written notification of this, and therefore we are going through an informal grievance process, if you feel the above actions are not satisfactory, I am more than happy have another discussion so that we can work out together what more we can do. However, if you would like to make this process formal, as is your right I enclose the Grievance Policy that explains the process.”[160]The Claimant emailed Ms Yorath on 5 January 2023: “I hope you enjoyed the holiday season. Thanks for your response however I really cannot accept the response as a resolution. As explained in when I made my complaint I asked what the issue was and was told the person in question was simply ;uncomfortable’ which she said repeatedly. There was never any mention of something being detected that needed further investigation. In addition to this I have spoken to multiple colleagues of varying levels and they have never experienced or heard of any staff ever being asked for a private search, therefore it is evident that I was directly discriminated against. In regards to an official grievance, prior to complaining I read the grievance policy and following my phone call with you on 14th October 2022 in which you assured me this was being taken seriously and you would come back to me after speaking to HR, I was happy for it to be dealt with informally. However, as you didn’t come back to me on the following Monday as promised and it had been a few weeks without any response. I sent the attached email to my line manager as per the grievance policy requesting this to be dealt with as an official grievance therefore I was under the impression that this was being addressed as such. Hence why when I didn’t hear from you for over a month despite sending an email and receiving several work related emails from you but nothing about my grievance, I contacted HR for an update. Consequently I have evidently already followed the process of raising an official grievance and it hasn’t been actioned as per the policy as it should have, therefore it is unfair to expect me to raise it again.” Grievance – Stage 1[161]Following the Claimant’s exchanges with Ms Measures on 3 January 2023, the formal grievance process was commenced. The Respondent accepts that this was delayed and that the Claimant’s grievance should have been registered following her email of 24 October 2022.[162]Stage 1 of the formal grievance procedure requires the grievance to be set out in writing. It sets out that a manager will respond formally in 7 working days and invite the employee to a grievance hearing or provide more details about the investigation. Following a hearing and investigation, a full written response will be provided within 7 working days.[163]On 9 January 2023, the Claimant was asked to provide a formal letter detailing her grievance which she did in a letter dated 10 January 2023. This letter was emailed to the respondent on 17 January 2023.[164]Ms Kosiba was appointed as the stage 1 grievance manager. The Claimant was invited to a meeting on 20 February 2023 which was rearranged to 3 March 2023.[165]The Claimant attended the meeting on 3 March 2023. She was not accompanied. Ms Kosiba chaired the meeting and Tahmina Baraky was present taking notes. The meeting started at 11.03am and ended at 11.24 am.[166]We noted that the notes of the meeting record that the Claimant stated she did not hear the alarm activate when she went through the archway. The Claimant said that she was not happy as her complaint wasn’t dealt with as quickly as she expected it to be. The Claimant referred to no other employees having been “strip searched”. The notes record that the Claimant was dissatisfied with how Ms Monfries communicated the requirements for the search and she was dissatisfied with the steps taken by the Respondent in relation to the shortcomings they had identified. She also expressed her anger that the CCTV had been destroyed and she believes that this would have made a difference to how her complaint was dealt with.[167]Ms Kosiba also interviewed Ms Yorath and Ms Measures as part of her investigation.[168]Prior to carrying out the investigation, Ms Kosiba was told by Adam Linney (Employee Relations Manager) that the CCTV footage had been reviewed by the security team and they had concluded that the correct process had been followed. He also advised her that Ms Monfries, had been spoken to and that Ms Kosiba did not need to reinvestigate this aspect. Ms Kosiba’s evidence is that the Respondent aims not to discipline or sanction colleagues twice for the same thing. She did not consider it necessary or appropriate to reinvestigate this aspect again as she understood that the behavioural aspect had been addressed with Ms Monfries.[169]Ms Kosiba did not interview Ms Monfries, the other security guard present during the private search or the manager present at the archway point as part of the investigation.[170]Ms Kosiba sought advice from Mr Linney about how to word the outcome letter. We accept Ms Kosiba’s evidence that this was in order to ensure that her response was appropriately worded and addressed all relevant matters. We comment that we do not consider it unusual within the context of an employee grievance for those involved in conducting the grievance investigation to seek guidance from those with more experience. Grievance - Stage 1 outcome[171]The outcome of the grievance was communicated to the Claimant in a letter dated 15 March 2023. The Claimant received that letter by email on 16 March 2023 although she was out of the office at the time and did not read the email until 23 March 2023.[172]The Respondent found no evidence to suggest that the incident raised in October 2022 was an act of direct discrimination, and that the Respondent had correctly applied Heathrow policies and processes when addressing the officer’s behavioural and conduct issues at the time of the incident. The Respondent did find that the way in which the Claimant’s complaint and subsequent grievance were dealt with was unacceptable. The Claimant’s grievance was partially upheld. Grievance – Stage 2 appeal[173]The Claimant appealed against the outcome of her grievance by letter dated 27 March 2023 which was sent to the Respondent on 30 March 2023. The Claimant’s view is that the Respondent was accepting Ms Monfries’ version of events over the Claimant’s version of events without having considered any substantial evidence, in particular, the CCTV footage of the search. The Claimant’s appeal letter stated that it was Ms Monfries’ behaviour in not explaining the private search process that led to the Claimant feeling humiliated. The Claimant stated that she should have been informed as part of her induction training that a private search could be requested if a security officer has a concern.[174]The Stage 2 grievance appeal hearing was carried out on 24 April 2023. The hearing was delayed due to industrial action at the time which impacted on resource and availability.[175]The Claimant attended the hearing and was not accompanied. The hearing was conducted by Ms Finlay with Faisal Taj in attendance to take notes. Mr Linney, was also in attendance to support Ms Finlay as this was her first Stage 2 hearing.[176]The contemporaneous note of the meeting records that the Claimant stated “its not the process, it’s the way its executed which is my problem, compared to when I looked to the left and the Asian girl came through and she had a quick pat down and was gone but with me, I was scrutinised and embarrassed in front of people and couldn’t even give me a reason, if I was given a reason, I wouldn’t mind, if she said to me that there is an area of concern with your bra area and I just need to investigate for my peace of mind so what’s going to happen is I’m going to call my colleague who is also female, we’re going to take you in to the room and we’re going to do a private search, she shouldn’t presume, she should say to everyone this search is voluntary so you don’t really have to do it, I would have still done it, I wouldn’t say no and look guilty, it’s the way she went about it, you cant just say you’re uncomfortable and blank me and embarrass me…”[177]The Claimant was asked in the Stage 2 appeal hearing whether she could identify the colleagues who support this assertion. The Claimant referred to project managers not being “strip searched” and named Nicky Hibbs, Nick Coulson and Paul. There was no evidence from these individuals before the Tribunal.[178]Ms Finlay sought advice from Mr Linney about the wording of the outcome letter. We accept Ms Finlay’s evidence that this is because she is dyslexic and that she took this step to ensure that the letter was appropriately worded and grammatically correct. Grievance - Stage 2 appeal outcome[179]The outcome of the appeal was communicated to the Claimant on 12 May 2023. The Respondent partially upheld the appeal in relation to a number of areas: that the investigating officer could not definitively state what had happened at the search because she had not reviewed the CCTV footage but was acting on the information provided to her; the developmental action taken in relation to Ms Monfries’ communication with the Claimant at the time; the Claimant’s concerns that no training is provided to employees about security processes; the Claimant’s concerns about the perception of being late for a meeting with an external contractor and that the stage 1 outcome incorrectly referred to this as Heathrow colleagues; and an apology being made by Ms Yorath.[180]The Claimant was not satisfied with the outcome of her appeal and resigned with immediate effect on 7 June 2023. CCTV[181]The Claimant says that if the grievance process had been dealt with in a timely manner then the investigation would have been able to view the CCTV of the incident and that this would have supported her case. The Respondent’s evidence is that CCTV footage is deleted after 30 days.[182]We observe that it is somewhat surprising that the CCTV footage was not retained given the Claimant’s complaint. However, we are satisfied based on the evidence that the CCTV was viewed following the Claimant’s initial complaint as part of the informal stage of the grievance process, by Mr Mirza on 20 October 2022 and by Mr Tedman on 31 October 2022.[183]We accept the Respondent’s evidence that the CCTV was viewed as part of the informal grievance process. We also accept the Respondent’s evidence that this would not have provided any audio footage and we find that it would not have assisted the investigations in relation to what Ms Monfries said to the Claimant and that it would not have assisted with the private search itself as the CCTV only covered the public area by the archway. Conclusions[184]The Claimant describes herself as Black Caribbean. She compares her treatment on 13 October 2022 with how an Asian female who went through security ahead of her was treated. In relation to the other complaints made, she compares her treatment with how someone who was not Black Caribbean would be treated.[185]The Claimant complains that the following acts were discriminatory and were either harassment or direct discrimination on the grounds of race:a. She was subjected to a private search when going through security on 13 October 2022;b. She did not receive a substantive response to the complaint that she raised with Darren Pitts and Karen Yorath on 14 October 2022 about that search;c. Darren Pitts failed to register her complaint as an official grievance as requested by her on 24 October 2022;d. The Respondent failed to appropriately deal with her grievance and appeal against the outcome of the grievance. The Claimant says that the respondent failed to carry out a proper investigation; HARASSMENT[186]The Claimant was clear in her oral evidence that she believes the search to have been carried out and subsequent events to have occurred “because of” her race rather than “related to” her race. This seems to us that the Claimant is alleging that this is direct discrimination rather than harassment. However, as the Claimant has pleaded her case in the alternative, we firstly considered whether the allegations complained of constituted harassment. Did the Respondent engage in conduct complained of?[187]There is no dispute that the private search was carried out.[188]In light of our findings that the Claimant did not consent to the private search, we have no hesitation in concluding that this amounted to unwanted conduct.[189]The requirement for the conduct to be “related to” race needs a broader enquiry than whether conduct is “because of race” like direct discrimination. The form of the conduct in question is more important than why the Respondent engaged in it or even how either party perceived it. It can be appropriate to consider the motivation and thought processes of alleged harassers when considering whether their conduct amounts to harassment.[190]We have concluded that the archway activated which resulted in the Claimant being asked to step aside for a search to be carried out. The archway is triggered by the presence of metal. We have concluded that this is not related to the Claimant’s race.[191]We considered whether the request for a private search related to race. In light of our findings, we conclude that following the first part of the search in the public area, Ms Monfries was not satisfied that there were no ongoing security concerns and determined that a private search was necessary. We have considered the motivation and thought processes of Ms Monfries and conclude that her actions were because she was not satisfied that there was no security concern and there is no evidence that she was motivated by anything related to race. Whilst we have no hesitation in finding that the search took place and that this was unwanted conduct, there is no evidence from which we can conclude that the conduct was related to race.[192]This allegation of harassment therefore fails on the basis that the Failure to provide a response to complaint on 14 October 2022[193]In light of our finding that the Respondent did not provide a satisfactory or timely response to the Claimant’s complaint, we concluded that the Respondent engaged in the conduct complained of.[194]Unwanted conduct means the same as unwelcome or uninvited, and specifically unwanted by the Claimant. We accept the Claimant’s evidence that this is unwanted conduct.[195]In light of our findings above, we find that there is no evidence from which we could reach a conclusion that the Respondent’s failure was related to race.[196]We have found that there have been considerable shortcomings in the Respondent’s handling of the Claimant’s complaint and a significant delay which has contributed to the Claimant’s dissatisfaction with the Respondent’s approach.[197]We find that there have been considerable shortcomings in the Respondent’s handling of the Claimant’s complaint. We observe that Ms Yorath was not sure how to approach the complaint and it is our view that this may have resulted in her being apprehensive about how to approach her discussions with the Claimant. We acknowledge that Ms Yorath wished to support the Claimant and wished to treat the matter sensitively. We acknowledge the Claimant’s view that her complaint should have been dealt with more promptly due to how upset she was and that she had made this clear to Mr Pitts and Ms Yorath.[198]We find that the Respondent was taking steps to investigate the Claimant’s informal complaint by liaising with the security team. However, we find that there was a considerable delay in providing any substantive response to the Claimant’s complaint. This delay was contributed to by a number of factors including the annual leave of Ms Monfries and Ms Yorath, the Claimant’s absence from work and Ms Yorath’s personal circumstances. We further find that the delay in responding to the Claimant has been exacerbated by a combination of a lack of experience, on the part of Mr Pitts and Ms Yorath, in dealing with grievances and informal complaints along with Ms Yorath’s personal circumstances during late 2022 and early 2023 due to the illness and death of her mother. We find that Ms Yorath did not recognise the seriousness of the Claimant’s complaint and whilst Ms Yorath was wellintentioned and wished to deal with the Claimant’s complaint, did not prioritise this during a period of personal stress.[199]However, there is no evidence from which we can conclude that any of the actions or inactions by the Respondent were related to race. We concluded that the shortcomings stem from a lack of knowledge, understanding or training around the grievance process and policy and also Ms Yorath failing to recognise that she had not prioritised the Claimant’s complaint.[200]This allegation of harassment therefore fails on the basis that the Failure to register complaint as a formal grievance on 24 October 2022[201]The Respondent accepts that it failed to register the Claimant’s complaint as a formal grievance on 24 October 2022. We have accepted the evidence of Mr Pitts that he understood Ms Yorath to be dealing with the matter. We also refer to our findings in relation to why Ms Yorath took no steps to register this as a formal grievance.[202]We accept the Claimant’s evidence that this is unwanted conduct.[203]We cannot be satisfied that there is any evidence from which we can conclude that the conduct was related to race. We have accepted Mr Pitts’ explanation for why the grievance was not formally registered and the Claimant also accepted Mr Pitts’ explanation as to why he did not take the appropriate action. We have considered the motivation and thought processes of Mr Pitts and conclude that his inaction was not related to race, it is that he believed someone else was dealing with the matter and would take the appropriate steps. We also concluded that whilst the Claimant did not claim that Ms Yorath should have registered the grievance, her evidence which we accepted was that she believed that the process was still in the informal stage. Whilst that view was mistakenly formed due to Ms Yorath’s failure to properly consider the Claimant’s email of 24 October 2022, there is no evidence to suggest that this was related to race.[204]This allegation of harassment therefore fails on the basis that the The grievance process[205]We have considered the grievance process as a whole, rather than its component parts as we understand the Claimant’s complaint to be that all stages of the grievance were harassment.[206]We concluded that the Respondent carried out an investigation and followed their grievance process to some extent and that an outcome was given to the Claimant in which parts of her grievance were upheld. However, we concluded that elements of the investigation in both Stage 1 and Stage 2 fall short of what could reasonably be expected when an employee has raised a complaint.[207]We concluded that there are shortcomings in both stages of the Respondent’s grievance investigation in that the CCTV was not viewed by either investigating officer and that the security officers at CP8 were not interviewed, and we note the Respondent’s acceptance of this.[208]We concluded that the Respondent’s failure to interview Ms Monfries, the other security guard and the manager as part of Stage 1 or Stage 2 of the grievance supports a conclusion that a fair process was not followed. We noted Ms Kosiba’s written evidence that the Respondent’s position is that they aim to not discipline or sanction colleagues for the same thing twice. Whilst this may be commendable in certain circumstances, where an allegation of discrimination has been raised by an employee about the manner of a search going through security, we consider that a reasonable investigation would have included speaking with the security office that carried out the search and viewing available CCTV footage.[209]We accept the Claimant’s evidence that this is unwanted conduct.[210]We cannot be satisfied that there is any evidence from which we can conclude that the conduct was related to race. We have considered the motivation and thought processes of Ms Kosiba and Ms Finlay and conclude that there is no evidence that the shortcomings in the investigations carried out in either Stage 1 or Stage 2 of the grievance process were related to race.[211]This allegation of harassment therefore fails on the basis that the[212]In light of our conclusions, it is the unanimous decision of the Tribunal that all of the Claimant’s allegations of harassment are unfounded and are dismissed. DIRECT DISCRIMINATION[213]We then turned to consider whether the acts complained of were direct discrimination on the grounds of race. We noted that the Claimant’s written submissions stated that the only issue that could be considered as direct discrimination is the act of the private search on 13 October 2022. The Claimant describes herself as Black Caribbean and relies on the comparator of an Asian female who went through security in front of her, triggered a result on the scanner and was not subject to a private search.[214]We reminded ourselves of our findings in relation to the allegation. There is no dispute that the search was carried out.[215]The Claimant says that she was selected for a private search on the grounds of her race. We have concluded that the Claimant was selected for a private search because the archway activated and Ms Monfries was not satisfied, after conducting a search in the public area, that there were no security concerns. We have concluded that the Claimant did not give consent for the private search and that she did not complete the written consent form.[216]The Claimant says that the Asian female who went through security around the same time was not selected for a private search even though the scanner had beeped and the Claimant says that this shows that the selection for a private search was because of her race. Did the claimant reasonably see the search as a detriment?[217]We reminded ourselves that a person can be treated less favourably and yet suffer no detriment. In order for a disadvantage to qualify as a “detriment”, it must arise in the employment field, and we must find that by reason of the act or acts complained of a reasonable worker would or might take the view that she had thereby been disadvantaged in the circumstances in which she had thereafter to work. An unjustified sense of grievance cannot amount to “detriment”. However, to establish a detriment, it is not necessary to demonstrate some physical or economic consequence, Shamoon v Chief Constable of RUC [2003] UKHL 11.[218]The concept of detriment is interpreted widely. The key test is whether treatment is of such a kind that a reasonable worker would or might take the view that, in all the circumstances, it was to their detriment. We acknowledge that the Claimant found the process embarrassing and humiliating and that the reason for the private search had not been fully explained to her. However, we have concluded that being subjected to a private search in the context of airport security does not amount to a detriment. This is the process that the Respondent must follow to ensure security at the airport, which is paramount for passenger safety. In the event that we are wrong on that point, we also considered whether the Claimant has proven facts from which the Tribunal could conclude that she was treated less favourably than someone in the same material circumstances of a different race was or would have been treated. Was the Claimant treated less favourably than someone in the same material circumstances of a different race was or would have been treated?[219]The Claimant says she was treated less favourably than an Asian female who passed through security around the same time. This individual was not subjected to a private search. In light of our findings, we were not satisfied that the Asian female is in the same material circumstances as the Claimant. There was no evidence from which we could conclude that the Asian female had triggered the archway scanner and that the security officer who carried out the public search was not satisfied that there was no security concern but did not carry out a private search. We concluded that a more plausible explanation for the Asian female not being subjected to a private search is that the security officer had been able to satisfy themselves that there was no security concern.[220]We considered whether there has been less favourable treatment and we concluded that there has not. A private search within the context of airport security is not less favourable treatment, it is a step in the security process to ensure that security officers are able to satisfy themselves that there is no ongoing security concern. We have found that Ms Monfries had not been able to satisfy herself that there was no ongoing security concern following the search of the Claimant in the public area. We have also found that in those circumstances, the next step in the security process is a private search. We cannot therefore conclude that this amounts to less favourable treatment.[221]We also comment that the Claimant has failed to show that the private search was because of her race. We have considered all of the evidence and have concluded that the reason for the search was because the scanner triggered. The pat down and wand scan did not resolve Ms Monfries’ concerns and therefore a private search was carried out. The Respondent accepts that the way in which this was communicated to the Claimant could and should have been better and has taken appropriate steps to address this by speaking with Ms Monfries and also by implementing further learning and development for the wider team. We acknowledge that the incident itself has caused the Claimant distress and that she felt humiliated by the process. However, we are not satisfied that there is any evidence from which we can conclude that the reason for the private search was because of the Claimant’s race.[222]There are a number of shortcomings that have occurred as regards the search process, the manner in which the Respondent dealt with the Claimant’s complaint, the manner in which the Respondent has dealt with the Claimant’s grievance. However, notwithstanding that the Respondent has made mistakes, there is no evidence from which we could conclude that the Respondent’s conduct has been motivated — consciously or subconsciously — by considerations of race based on the fact that the Claimant is Black Caribbean. Nor do we find that any inference of discrimination can reasonably be drawn. On the evidence presented, we accept that the sole reason for the Respondent’s treatment of the Claimant was a lack of care, attention to detail and focus on the investigating managers’ parts, rather than a discriminatory motivation.[223]In light of our conclusions, it is the unanimous decision of the Tribunal that all of the Claimant’s allegations of direct race discrimination are unfounded and are dismissed. Time limits[224]In the end, it was not necessary for us to consider time limits given the findings and decisions made above. If an alleged act is found not to amount to unlawful discrimination, then it cannot form part of ‘conduct extending over a period’. As it was, the harassment and direct discrimination claims all failed and no further consideration of time limits is required.[225]In light of our conclusions, it is the unanimous decision of the Tribunal that all of the Claimant’s claims of harassment and direct race discrimination are dismissed.