E Kumordji v Royal Mail Group Ltd and Others: 3308654/2024
EMPLOYMENT TRIBUNALS
Case No 3308654/2024
Between
E KumordjiClaimantRoyal Mail Group Ltd and OthersRespondent
Before
Employment Judge W AndersonH Ahmed (instructed by counsel) for respondentDate 5 March 2026
JUDGMENT
[1]The claimant’s claims of race and sex discrimination, and victimisation, are dismissed.
REASONS
[1]The claimant has been employed by the respondent since 25 June 2021. Following a period of early conciliation from 2 to 5 August 2024 he issued a claim about race and sex discrimination, and victimisation, on 7 August 2024. The respondent denies discriminating against or victimising the claimant.
The Hearing
[2]The parties filed a joint bundle of 262 pages. There has previously been some correspondence around the bundle, but Mr Duodu confirmed at the outset that the claimant was content that the bundle contained all relevant documentation. I also received a cast list and chronology from the respondent. Four witness statement were filed. One from the claimant and three from the respondent. The respondent’s witnesses were Mr Omokaro, Mr Patel and Mr Kuko-Lyii. All witnesses attended the hearing and gave evidence on oath.[3]Mr Duodu raised with me that the claimant had applied to amend his claim to include race and sex discrimination and EJ Quill’s response was not in the bundle. I told Mr Duodu that the claimant had clearly pleaded race and sex discrimination in the ET1 and I accepted that his case was about both of these matters.[4]I gave oral judgment on 5 March 2026. Mr Duodu requested written reasons.
The Issues
[5]The issues were set out by EJ McCooey in an order dated 16 October 2025 as follows. I have added a date at paragraph1.1 which was missing. 1. Time limits 1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 2 May 2024 may not have been brought in time.1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2. Direct sex discrimination (Equality Act 2010 section 13)2.1 The claimant is a man and he compares his treatment with women.2.2 Did the respondent do the following things:2.2.1 Make the claimant work on his own, giving him no support from the time he started working in the amalgamation area, until the end of mediation on 6.6.2024.2.2.2 Mr Patel told him “you are a man and must deal with it” referring to the lack of support above. This was sent in a text message on 5.3.2024.2.2.3 When the claimant continued to request support he was removed from the amalgamation area by Mr Basit Iyii on 21.3.2024.2.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than Kiran Bhatt, a woman.2.4 If so, was it because of sex?2.5 Did the respondent’s treatment amount to a detriment? 3. Direct race discrimination (Equality Act 2010 section 13)3.1 The claimant describes his race as Black African, and he compares his treatment with people of an Asian race.3.2 Did the respondent do the following things:3.2.1 Make the claimant work on his own, giving him no support from the time he started working in the amalgamation area, until the end of mediation on 6.6.2024.3.2.2 Mr Patel told him “you are a man and must deal with it” referring to the lack of support above. This was sent in a text message on 5.3.2024.3.2.3 When the claimant continued to request support he was removed from the amalgamation area by Mr Basit Iyii on 21.3.2024.3.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says he was treated worse than Kiran Bhatt, of Asian race.3.4 If so, was it because of race.3.5 Did the respondent’s treatment amount to a detriment? 4. Victimisation (Equality Act 2010 section 27)4.1 Did the claimant do a protected act as follows: 4.1.1 Raise a complaint in respect of requiring support on a number of occasions leading to the mediation meeting on 6.6.24.4.2 Did the respondent do the following things: 4.2.1 After the mediation meeting on 6.6.24, in which Mr Basit Ijii acknowledged the claimant should have been given support and apologised, Mr Ijii issued the claimant with an AR1 on 25.06.2024.4.3 By doing so, did it subject the claimant to detriment?4.4 If so, was it because the claimant did a protected act?4.5 Was it because the respondent believed the claimant had done, or might do, a protected act? Relevant Findings of Fact[6]The claimant is employed by the respondent, a post and parcel collection and delivery company, as an operational grade. His employment commenced on 25 June 2012.[7]The claimant is a Black African man.[8]At the relevant time the claimant worked mostly in an area called amalgamation. Sometimes he worked alone and other times he worked with colleagues. His working days were Monday to Friday. His colleague Kiran Bhatt also worked in amalgamation, from Tuesday to Saturday. Ms Bhatt had a permanent role in amalgamation. The claimant did not. I have set out the reasons why I have concluded that below.[9]It is the claimant’s case that on a number of occasions from 26 September 2023 he raised with the manager for that area Jyotindrakumar Patel, on occasions when he was working alone, that he needed help and he was not given it. The dates he says that he asked for help were 26 September 2023, 4, 5 and 12 March 2024, 3, 4 and 5 June 2024. The only documentary evidence of such a request is for 5 March where the claimant sent a text message to Mr Patel as follows: Hi, just to let you know Calran [Kiran] has gone home sick, please arrange for another person to assist me, thanks. Mr Patel replies ‘You are a man deal with it’.[10]Mr Patel’s oral evidence was that he agreed that the claimant had asked for assistance on a number of occasions and that he would allocate additional staff if he thought the level of work in amalgamation at that point warranted it. He recalled the claimant asking for help on 5 and 21 March but could not remember about the other dates. Mr Patel said in his witness statement that he did not believe that the claimant was not given support when he requested it, which is different to his oral evidence[11]Basit Kuko-Lyii was the relevant section lead, senior to Mr Patel. He said that Mr Patel had raised with him on more than one occasion that the claimant wanted support and Mr Kuko-Lyii had on occasion gone to check the level of work in amalgamation. It was not put to him, and he did not say, whether he had ever found that he agreed with the claimant in a situation where Mr Patel had said support was not necessary.[12]I find that there were occasions on which the claimant requested assistance in amalgamation and this was not provided to him. I find that the reason support was not provided to him was that Mr Patel, as the manager for that section, made a decision on a case by case basis as to whether he thought that there was enough work in amalgamation to warrant the allocation of extra staff to the section. This was the evidence given by Mr Patel and was corroborated by Mr Kuko-Lyii and I accept it.[13]It was the claimant’s case that Ms Bhatt was given support if she requested it where he was not. The claimant did not always work with Ms Bhatt as he did not always work in amalgamation. He also did not work on Saturdays and she did. The claimant did not give any specific details or examples about Ms Bhatt being provided with support in circumstances where he was not, nor did he explain how he knew support was always provided if she requested it, when he was not always working with her. Mr Patel said that he treated requests for support from Ms Bhatt in the same way he would treat requests from the claimant. Where Mr Patel gave a detailed account during cross examination about the circumstances in which support was granted or not, and the claimant’s assertion that there was a difference in treatment appears at least in part to be speculation, I prefer the evidence of Mr Patel and accept that he did not refuse requests for support from the claimant in circumstances where he would have provided it to Ms Bhatt.[14]On the matter of the text exchange between the claimant and Mr Patel on 5 March 2024, Mr Patel said that the response was jokey and reflective of the usual pattern of conversation between him and the claimant. The claimant did not raise a complaint about the choice of wording either formally or informally, and it is not referred to by him in any subsequent conversations between the parties, including at meetings attended by the claimant’s trade union representative.[15]The claimant also claims that he was removed from the amalgamation area on 26 September 2023, 4 March 2024, 5 March 2024, and 21 March 2024 because he asked for support, by Mr Kuko-Lyii. It was put to him by Mr Ahmed that he was defined as ‘surplus’ which meant that he could be moved around. The claimant agreed that he was surplus but said he could not be moved around. He relied on a letter dated 19 September 2021 which said only that he should continue on his current shift pattern until he received an invitation to a 121 conversation [261]. Mr Patel and Mr Kuko-Lyii said the claimant was surplus and he could be moved to other areas where the workflow required that. The claimant agreed that he had worked in other areas. I find that the claimant held a role where he could be moved to different areas of the business depending on the requirements of the respondent’s business and that he was sometimes moved. Mr Patel and Mr Kuko-Lyii were both asked by Mr Duodu in cross-examination about moving the claimant because he had asked for support. Both denied this. Both said that if the claimant was moved, this was because there was not enough work in amalgamation.[16]On balance I find that if the claimant was moved, it was not because he had asked for support in amalgamation but because he was required elsewhere or there was not enough work in amalgamation. The claimant has referred to specific dates on which he says he was moved but has provided no evidence of being moved, or why he remembers or has focused on those particular days. He did not provide details about each allegation, or where he was moved to, or who made the decision, whether in his claim form, or his further particulars or his witness statement. He did not raise a grievance about being moved. In cross examination he admitted that he had not been moved on 21 March 2024, which is a key date as it is the date that he commenced a long period of sickness absence.[17]On 21 March 2024 the claimant told Mr Patel he was going home because he was stressed because of what was happening. I find from this that the claimant had asked for support and Mr Patel had decided not to provide it on that occasion.[18]On 22 March 2023 the claimant submitted a four week fit note which gave the reason for his non-attendance as ‘work related stress’. The same day the claimant’s line manager Evans Omokaro sent the claimant a letter inviting him to a sickness absence meeting on 27 March 2024. The claimant did not reply, and Mr Omokaro followed up by text on 26 March 2024. The claimant replied on 27 March 2024 that he was not well enough to attend. Mr Omokaro sought more details about the claimant’s illness and the claimant said, ‘I feel nauseous, dizzy, sweating and sometimes lack orientation.’ He said this started on 21 March 2024. Mr Omokaro sought and obtained the claimant’s consent to refer him to occupational health.[19]Mr Omokaro went on leave, and the claimant was invited by Julija Baklickaja to an attendance meeting on 15 April 2024. He attended with his union representative. The notes to that meeting record the following questions and answers relevant to this case, Gilly being another name by which Mr Patel is known: Reason for your Yes, that is correct. This stress situation started after absence is work the resigning related stress. Can you give me some more details Why after I believe there was discrimination during the resigning? process. White colleague flown through, and I did not flow through. We had similar duties in LPSS. Can you take me 21st when absence started. I was working in through day before Amalgamation and needed hand. I had to speak to you called off sick. my line manager for a help (Gilly). lt was always a struggle with him, and he has been swearing at me, saying that I am lazy and things like that. Because he believes that Raymond (One of the screeners) can do work without assistance. And he is not ready to work with me (Emanuel). It has been going on for some time now. On 21st l was struggling, and Gilly would not give me help and will speak with Basit (Section lead) to keep me away from the area. And then I should go to Dispatch. Kiren, also helps in Amalgamation, always will have help, but when it comes to me, I will not get help. That day l could not cope along anymore, asked for help, but Gilly would not give me help and said that he will get rid of me. He even went that far that when on 26th of September after the resign we were given letters to continue working in the areas until further notice. Gilly came to me and said that I should go to T48 and cannot stay in the area. Why do you think I don't know. Kiren gets help when she asks. But you don't get same when l ask it is always negative answer. treatment as others[20]The reference to a white colleague being flown through and discrimination was not something that I was taken to by either party during the hearing and does not form any part of the claimant’s pleadings. None of the witnesses were asked about it and it was not raised to me by Mr Duodu, the claimant’s representative, in submissions. The claimant specifically compares himself with people of an Asian race for the purposes of his direct race discrimination claim, and on complaints in relation to a lack of support for victimisation.[21]The claimant has given in this meeting as the reason for his alleged differential treatment in terms of support that Mr Patel believed that another colleague, Rayhan Miah, could work without assistance, and also states that he does not know why Ms Bhatt gets help when she asks and he does not. The claimant does not state that he thinks that his treatment is different because he is a man or because he is African, and he acknowledges that other colleagues worked alone at times.[22]An occupational health report was produced on 1 May 2024 which included the following recommendation: The key to moving this case forward will be, after your engagement with Emmanuel, whether, or not, it is possible for Emmanuel and the organisation to reach a mutual agreement as to how the issues reflected in this report might be resolved. Therefore, in my opinion, there needs to be full and frank dialogue between Emmanuel and his employer in regard to the issues above.[23]In a section entitled ‘Background’ the author records that the claimant ‘reports these symptoms worsened recently due to another incident of discrimination at work and he felt unable to cope.’[24]The claimant returned to work on a six week phased return programme from 3 June 2024. In a return to work meeting with Mr Omokaro on that day the claimant refers to having been offered a mediation meeting ‘which I hope will highlight the root cause of the issue with a view to rectifying it once and for all.’ Mr Omokaro then records: Emmanuel says that he is always ready to abide by the policies of the business and endeavour to carry out any duty due him without any prejudice as long as things are done fairly. When asked what he means by fairly, Emmanuel says that the WAM should promote equality and be fair to give support as at when needed and treat him as my colleagues.[25]At the end of the meeting notes Mr Omokaro has indicated that the claimant’s absence will be counted towards the Attendance Standards. The claimant has signed the notes. Appended to the notes is a copy of the Attendance Standards trigger points. The claimant confirmed in cross examination that he was familiar with the respondent’s Attendance Policy.[26]On 5 June Mr Omokaro issued the claimant an Attendance Review 1 Notification (AR1), which is a first stage attendance warning. It is live for twelve months and if an employee incurs further absences during that twelve month period, they may be issued with a stage 2 warning and could ultimately be dismissed.[27]On 6 June 2024 a mediation meeting took place at which were present the claimant, Mr Omokaro, Mr Patel and Mr Kuko-Lyii. There are no notes of the meeting. There was some discussion in oral evidence about who organised the meeting and why, and who had seen the OH report. Both Mr Omokaro and Mr Kuko-Lyii thought they had instigated it. Mr Omokaro as he was the claimant’s line manager, managing his absence, and Mr Kuko-Lyii as he was aware of the claimant’s complaints about lack of support and his absence. Mr Kuko-Lyii said he had not seen the OH report, and I have no reason to doubt that evidence. Although there was some difference of opinion, it is not my view that this undermines the credibility of the witnesses. Both managers knew there was a problem in that the claimant had been on long term sickness absence which he said was due to lack of support allocated to him in amalgamation, and a meeting was arranged between the claimant and Mr Patel in the hope of resolving that. The meeting took place almost two years ago.[28]The claimant makes no reference to the meeting in his ET1. In his further particulars and in his witness statement he gives no account of the meeting. There is a reference to it in the list of issues, and it is set out at 4.2.1 that the claimant claims that in that meeting Mr Kuko-Lyii acknowledged the claimant should have been given support and apologised.[29]The meeting is referred to during an AR1 appeal meeting which took place on 18 June 2024. The claimant’s trade union representative, Muhammad Ali (MA), was present at the meeting. The notes record the following: MA : EK went off sick due to work-related stress – a consequence of a conflict with the Manager he was working with in Amalgamation area. The conflict caused the stress and EK had no control over it. Occupation Health (OH) clinician who assessed EK advised or recommended a mediation between the parties involved. Mediation meeting EK explained that he never received any support when needed as opposed to his colleagues whilst on the same duty; that he was constantly denied the support of extra staff when needed. The Manager held his hands up, apologised and explained that if he caused him stress to EK And when he (EK). MA continued that “Mr Basit (Section Lead) agreed that Amalgamation area have staffing issue and that he would recommend that Training be given to operators in Arrivals who have split duties that covers Amalgamation.[30]The manager referred to is Mr Patel. Mr Kuko-Lyii is clearly differentiated by being referred to as the section leader. Mr Omakaro’s recollection of the meeting is that the claimant and Mr Patel positively talked through the claimant’s concerns about not being provided with support, and they shook hands after. It was agreed that support would be provided to the claimant, but staff numbers assigned to an area would be aligned to workload. Mr Patel’s recollection is similar. He said that he and the claimant shook hands at the end. Mr Kuko-Lyii’s recollection is more detailed. He says that the heard from both sides and that the claimant ‘alleged Mr Patel was not giving him support and he alleged that Mr Patel was discriminating against him. Emmanuel mentioned that he felt the negative relationship between Mr Patel and himself is affecting his mental health. Mr Patel argue that the allegation by Emmanuel [the claimant] was unfounded and added that he was just doing his job by making sure that he used his resources efficiently. I intervened and asked both to work together. I urged Mr Patel to give Emmanuel the support needed. I reassured Emmanuel that he will get the support needed. I asked Emmanuel whether he was happy with the mediation, and he said yes. They both shook hands, and I closed the meeting.[31]In cross examination Mr Kuko-Lyii said that the claimant had used the word discrimination when talking about not getting support. He did not refer to a type of discrimination. I find that the claimant used the word discrimination in that meeting, but he did not refer to either race or sex discrimination. I find that the respondent’s employees who were present at the meeting understood this to mean no more than that he was not receiving support where he believed that others were.[32]On 8 June 2024 the claimant appealed against the issuing of the AR1.[33]The claimant’s phased return involved regular meetings with his line manager Mr Omokaro, of which there are notes. The notes show the claimant to be happy with how things are progressing. The notes for the meeting that took place on 8 June 2024 are as follows: Rehab review with Emmanuel today. According to Emmanuel:• He is comfortable and happy with his work in Amalgamation area.• He is comfortable with his Manager in Amalgamation area following the mediation between him and Amalgamation WAM. His talking Therapy is going on well and• He is able and looking forward to progressing to 5 hours next week. Emmanuel said that his only worry is the AR1 letter that he received, and I made him aware of that we will discuss that during his Appeal hearing.[34]As set out above the claimant claims that he was refused support on 3, 4, and 5 June 2024. I find that he was not refused support on these days. I do not accept that if he had been refused support on the first three days of his return that he would have told Mr Omokaro that he was happy in his work.[35]The notes continue to record good progress and the claimant being happy at work until a meeting on 28 June 2024 which took place three days after his appeal against the AR1 was heard. At this point he says that his progress to recovery has been affected by the AR1. I find that he is referring to the fact that his appeal against the AR1 was dismissed.[36]The appeal meeting took place on 18 June 2024 and the notes are recorded above in my findings about the mediation meeting. Mr Ali, the claimant’s trade union representative, asked Mr Omokaro to take into account the claimant’s stress over not being provided with support in amalgamation.[37]On 25 June 2024 Mr Omakoro sent the claimant a letter stating that he did not uphold the appeal and setting out his reasons for that decision.[38]On 28 June 2024 the claimant submitted a grievance against the AR1 appeal decision. The grievance is as follows: Mitigating points was not taken in consideration when stage one was issued. Sex discrimination. My line manager was disappointed when I called in sick. I had work - related stress. I attended Wellness Workshop for 6 weeks, each session lasting 90 minutes.[39]This is the only document, other than that noted above for the attendance review meeting on 15 April 2024, before the tribunal claim was filed, in which the claimant refers to discrimination on the grounds of a protected characteristic. The grievance was refused as the AR1 appeal process is final.[40]The claimant states in his witness statement: Whenever l requested for help my manager (Jyopindrakumar Patel) discriminated against me and told me that l am a man and must deal with it so this race and sexual discrimination continued. Whenever l persisted, complaining about the race and sex discriminations and insisting and asking for the support (additional staff) l was victimized by being removed from the Amalgamation work area by instructions from my section lead (Basit K Iyii).[41]This statement is not particularised any further than as I have recorded above. There were no specific incidents or details referred to where it was alleged that Mr Patel had told the claimant that he was a ‘a man and must deal with it’, other than the one evidenced on 5 March 2024. Mr Patel denied in crossexamination, as did all of the respondent’s witnesses, that the claimant had ever raised that he believed he had been discriminated against on the grounds of sex and race with them. Clearly the claimant is a person who will make a complaint when he feels that he is being ill-treated. This is apparent from the evidence of Mr Patel and Mr Kuko-Lyii who both accepted that the claimant asked for support in amalgamation a number of times and Mr Patel had raised this with Mr Kuko-Lyii. The claimant is a union member and had a union representative in two of the meetings that took place in connection with his attendance. The union representative who attended the AR1 appeal meeting is forthright in setting out his views on treatment he says the claimant received that led to his absence. It is not recorded in any of these meetings that the claimant complained about sex or race discrimination. Nor is there such a claim recorded in the OH report.[42]I find that Mr Patel said to the claimant on one occasion , the 5 March 2024, that he was a man and should get on with it, and I find that the claimant did not at any time between 26 September 2023 and 25 June 2024 raise with the respondent that he believed he had been discriminated against on the grounds of sex and race when he was refused support in amalgamation. As noted above I have found that when he was moved from amalgamation this was to do with operational needs.
The Law
[43]The discrimination claims are brought under sections 13 and 27 of the Equality Act 2010. Those sections are reproduced below. 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. 43. For all the Equality Act 2010 claims the burden of proof provisions as set out in section 136 apply. Section 136 reads: 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. 65. The tribunal must make findings of fact and apply the legal tests to those facts. The tests for direct discrimination were discussed in Igen v Wong and Others [2005] IRLR 258 and Madarassy v Nomura International PLC [2007] IRLR 246. The employment tribunal should go through a two-stage process, the first stage of which requires the claimant to prove facts which could establish that the respondent has committed an act of discrimination, after which, and only if the claimant has proved such facts, the respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In deciding whether the claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the respondent and the claimant. Submissions 66. I have set out a summary of the parties submissions 67. For the respondent, Mr Ahmed said that any allegation before 3 May 2024 was out of time and that it would not be just and equitable to extend time where the claimant was familiar with employment tribunal proceedings, this not being his first claim. The claimant had not raised sex or race discrimination claims before he raised a grievance on 25 June 2024. I should accept the evidence from the respondent’s three witnesses about when and why the claimant may be expected to work alone or be moved. Mr Patel’s comment on 5 March 2024 was typical of his phraseology and he did not use it to discuss the characteristic of sex. Sex did not form part of his decisionmaking process. The claimant did not do a protected act for the purposes of a victimisation claim. Using the word discrimination does not amount to a protected act (Durrani v Ealing UKEAT/0454/2012 and Beneviste v Kingston University EAT 0393/05). Even if there was a protected act the issuing of the AR1 had nothing to do with that and the AR1 was simply triggered by the claimant’s absence. 68. For the claimant, Mr Duodu said that the claimant was a black African man and he had clearly listed the dates that discrimination took place. He named Mr Patel as the person who initiated this race and sex discrimination each time and complained to him that he was being discriminated against on the grounds of race and sex. Mr Patel went to the senior manager, and they came back to remove him. As a result of the managers not taking action and addressing these issues the claimant became stressed and went home sick. In cross examination yesterday the witnesses said that there were issues in the area but all of them could not remember the dates. The claimant in his meeting with the occupational health advisor explained everything about what was going on in the company and that he was being discriminated against which led to the advisor writing to the company to let them know what was going on and how to get him back into work. Both Mr Omokara and Mr KukoLyii said they had invited the claimant to a mediation meeting. Mr Kuko-Lyii would not answer in cross examination what it was that Mr Patel came to speak to him about. It is clear that the mediation meeting was organised as a cover up and not to resolve the issues. Mr Patel said that the comment on 5 March was a joke but the tribunal should not accept that he was joking. The respondent has policies about discrimination and banter and he said that he knew about those policies. If Kiran Bhatt had gone home ill on the 5 March why was the work only requiring one person after she left? The claimant was never asked to work in another area before he asked for help in amalgamation. Mr Omokaro admitted that stress can be a mental health issue. Mental health is something that can be discounted under the respondent’s attendance policy. He said in cross examination his decision was because the claimant did not tell him from the beginning that he was stressed. Mr Omokaro could have made better attempts to contact the claimant when he first went off sick. The mediation was not an appropriate way forward where claims of race and sex discrimination had been raised. The respondent has destroyed all traces of that meeting. The claimant suffered this treatment continuously from September 2023. Mr Duodu said the tribunal should look at the cases of Nagarajan v London Regional Transport and Swiggs [1999] IRLR 572, HL and Anya v University of Oxford [2001] IRLR 377, CA. The claimant says that all allegations are in time as there is a continuing course of conduct. Decision and Reasons[44]I have considered the case of Anya v University of Oxford as requested by Mr Duodu but find that it is not relevant to this case where the respondent is not making the case that any bad or unreasonable behaviour applied across the board. Its defence is that it did not treat the claimant unfavourably in applying standard working practices. Though he did not say it I understood Mr Duodu’s reference to Nagarajan v LRT to concern the aspect of that case dealing with subconscious motivation, and where appropriate I have kept that in mind. Direct Discrimination on the grounds of race[45]The claimant is a Black African man, and he compares himself with people of an Asian race. I have considered each of the three allegations in turn.[46]Allegation 1 - Make the claimant work on his own, giving him no support from the time he started working in the amalgamation area, until the end of mediation on 6.6.2024.[47]I have found that there were times during the period relevant to this claim, which is from 26 September 2023 to 6 June 2024, when the claimant worked on his own in the amalgamation area, and that there were times he was refused support, by which I mean he asked for another member of staff to be allocated to help him and this request was refused. I have found that Mr Patel assessed these requests, and requests from others, only on the then current workload in amalgamation and that sometimes the work in amalgamation meant that only one person was required.[48]Where the claimant was treated the same as other colleagues working in amalgamation, I find that the claimant sometimes working alone and the respondent not providing support to the claimant, was not less favourable treatment, and therefore this allegation cannot support a claim of discrimination.[49]Allegation 2: Mr Patel told him “you are a man and must deal with it” referring to the lack of support above. This was sent in a text message on 5.3.2024.[50]No explanation was offered by the claimant or his representative as to why the claimant believed that in Mr Patel making this comment, which refers to sex, the claimant was being treated less favourably than people of an Asian race. Whether a claimant has been treated less favourably is an objective test and I do not accept that in making this comment Mr Patel was treating the claimant less favourably than people of an Asian race. Again where this is no unfavourable treatment, the allegation cannot support a claim of direct discrimination[51]Allegation 3: When the claimant continued to request support he was removed from the amalgamation area by Mr Basit Iyii on 21.3.2024.[52]The claimant admitted in cross examination that he was not removed from amalgamation by Mr Kuko-Lyii on 21 March 2024 and therefore this allegation of unfavourable treatment fails.[53]As I have found that there was no unfavourable treatment, the claimant’s claim of discrimination on the grounds of race is dismissed. Direct Discrimination on the grounds of sex[54]The claimant compares himself to a woman and his comparator is Kiran Bhatt.[55]Allegation 1 - Make the claimant work on his own, giving him no support from the time he started working in the amalgamation area, until the end of mediation on 6.6.2024.[56]I have found that there were times during the period relevant to this claim, which is from 26 September 2023 to 6 June 2024, when the claimant worked on his own in the amalgamation area, and that there were times he was refused support, by which I mean he asked for another member of staff to be allocated to help him and this request was refused. I have found that Mr Patel assessed these requests, and requests for others, only on the then current workload in amalgamation and that sometimes the work in amalgamation mean that only one person was required.[57]Where the claimant was treated the same as other colleagues working in amalgamation, I find that the claimant sometimes working alone and the respondent not providing support to the claimant, was not less favourable treatment, and therefore this allegation cannot support a claim of discrimination.[58]Allegation 2: Mr Patel told him “you are a man and must deal with it” referring to the lack of support above. This was sent in a text message on 5.3.2024.[59]The claimant has alleged above that he was not given support, and I have set out my decision on that allegation. This allegation is about the comment made by Mr Patel rather than the lack of support. I accept that the words used could, in some circumstances, amount to less favourable treatment because of sex, noting that had Ms Bhatt asked for support Mr Patel is unlikely to have made the comment to Ms Bhatt, as she is not a man but, in this case, I find that objectively, they did not. The test is objective and the fact that a claimant believes they have been treated less favourably is not determinative, but I have taken into consideration the claimant’s perception of the comment. I note that he made no complaint at the time, and the comment is not brought to the attention of anyone until this case commenced. It is not raised in any meetings about attendance, or in the mediation. More than a month later the claimant said that he did not know why Ms Bhatt was treated differently to him. It is a single flippant comment between two people who had worked together for a significant period of time and though I accept that the wording is clumsy I do not accept that it amounts to less favourable treatment.[60]Allegation 3: When the claimant continued to request support, he was removed from the amalgamation area by Mr Basit Iyii on 21.3.2024.[61]The claimant admitted in cross examination that he was not removed from amalgamation by Mr Kuko-Lyii on 21 March 2024 and therefore this allegation of unfavourable treatment fails.[62]As I have found that there was no unfavourable treatment, the claimant’s claim of discrimination on the grounds of sex is dismissed. Victimisation[63]The claimant relies on the following protected act: Raise a complaint in respect of requiring support on a number of occasions leading to the mediation meeting on 6.6.24.[64]Under s27(1) Equality Act 2010, a protected act for these purposes is defined at subsections (c) and (d) of s27 (1) as follows: (c) doing any other thing for the purposes of or in connection with this Act (d) making an allegation (whether or not express) that the person who carries out the detriment or another person has contravened this Act.[65]This definition is wide, but there is no evidence before me that the protected act relied upon would fall within the definition. The only reference to discrimination which is clearly related to a protected characteristic, so a reference that could be construed as being in connection with the Equality Act, rather than simply to a difference in treatment, and which took place before the detriment complained of, is the one raised by the claimant in the meeting of 15 April 2024 about white colleagues. However, that comment is in relation to someone being ‘flown through’ during a re-sign and not about support requests. The claimant’s pleaded case is very clearly that his protected act was raising a complaint of requiring support, and because he did so Mr Kuko-Lyii issued an AR1. While the claimant used the word discrimination in the meeting of 6 June 2026, which was about support, I do not accept that this was a protected act as defined above, as I accept the respondent’s evidence that the claimant was simply using the word discrimination to describe general unfairness (Durrani v London Borough of Ealing EAT 0454/12). Additionally, I have made a finding that the claimant did not at any point, before he raised his grievance, say to any of the respondent’s employees that he believed he was receiving differential treatment because of his race or sex.[66]Where there is no protected act, the claim of victimisation fails and is dismissed. Approved by: