Mrs A Sharma v St John Ambulance and I Borek: 3310519/2023

EMPLOYMENT TRIBUNALS

Case No 3310519/2023

Between

Mrs A SharmaClaimant

St John Ambulance and I BorekRespondent

Before

Employment Judge Hutchings

In person for claimant

Date 16 September 2025

JUDGMENT

It is the unanimous judgment of this Employment Tribunal that:

[1]The complaint of direct race discrimination is not well founded and is dismissed.

[2]The complaint of harassment related to race is not well founded and is dismissed.

REASONS

[1]The claimant was employed by the respondent as a Qualifications Assistant Level 1 from 12 September 2022 until 6 June 2023. The respondent is a volunteer-led, charitable organisation dedicated to the teaching and practice of first aid and the support of the national emergency response system in England.

[2]By an ET1 Claim Form and Particulars of Claim dated 22 August 2023 the claimant brings the following complaints: 2.1.1. Direct race/religious discrimination: section 13 of the Equality Act 2010; and 2.1.2. Harassment related to race/religion: section 26 of the Equality Act 2010.

[3]In summary, the claimant says the second respondent, her line manager, treated her well until she “found [her] race” on 13 September 2022. The claimant alleges the second respondent was initially friendly but relies on the second respondent repeatedly (she says) asking where she is from as the “something more” than a difference in race and treatment in her complaints of discrimination. In her skeleton argument the claimant asked the Tribunal to make an inference that the factual complaints on which she relies were a continuing act of race discrimination. She says that because there are multiple events the Tribunal must conclude that the events happened because of her race.

[4]It is noted that she also brought the following complaints, which were dismissed following a withdrawal by the claimant at the case management hearing before Employment Judge Ord on 5 March 2024. The Tribunal issued a dismissal judgment on 5 March 2024, which was sent to parties on 27 March 2024. 4.1. Breach of Contract for failing to conduct regular one on one meetings; 4.2. Detriment for raising a health and safety matter contrary to section 44 of the Employment Rights Act 1996; 4.3. Victimisation contrary to section 27 of the Equality Act 2010; 4.4. Being subjected to less favourable treatment on the basis of a fixed term employment status contrary to Regulation 3 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002; 4.5. Being subjected to the non-extension of a stipulated term contract (and therefore an alleged unfair dismissal) contrary to Regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002; 4.6. Unfair dismissal/Constructive dismissal; and 4.7. Automatic unfair dismissal for raising a health and safety matter contrary to section 100 of the Employment Rights Act 1996.

[5]ACAS consultation with the first respondent started on 26 May 2023 and a certificate was issued on 6 July 2023. ACAS consultation with the second respondent started on 14 June 2023 and a certificate was issued on 7 July 2023.

[6]By an ET3 Response Form and Grounds of Resistance dated 6 November 2023 the respondents deny the allegations. The respondents say the claimant’s employment ended as she was employed on a fixed term contract with the first respondent for this period, which was not renewed because of performance concerns. Evidence and procedure

[7]The case was listed for 8 days, but was reduced to 7 days due to judicial resource; we considered liability only. Parties submitted the following in evidence: 7.1. An agreed hearing file of 1585 pages (page references in this judgment are to the electronic hearing file); 7.2. A remedy hearing file of 289 pages; 7.3. Agreed list of key people; 7.4. Agreed list of key documents; 7.5. Grievance meeting documents; and 7.6. Claimant and respondent chronology (not agreed).

[8]On day 5 the respondents submitted additional documents relating to issue 2.2.6; the claimant did not object to the documents being admitted. We agree with the parties that the documents are relevant to the issues in dispute and admitted the documents as evidence.

[9]The claimant represented herself and gave sworn evidence (day 2, 3). The claimant called evidence from: 9.1. IB (this witness is subject to an anonymisation order made by Employment Judge Smeaton on 11 June 2024: on day 3 Mr Diamond told us he did not have any questions for IB; neither did the Tribunal and as such IB was not required to give oral evidence at the hearing); 9.2. Meenakshi Dagar, family friend (day 4); and 9.3. HH, family friend (on day 2 the claimant confirmed she would not be calling HH to give evidence; the reasons are set out below).

[10]The respondent was represented by Mr Diamond of counsel who called sworn evidence from (job titles relate to the time of events complained about): 10.1. Gillian Stoney (day 4), Resources Team Manager; 10.2. Izabela Borek (day 5 and 6), Qualifications team leader and the claimant’s line manager; 10.3. Michael Keane (day 6), Business Performance & Growth Manager; 10.4. Martin Davey (day 6), Head of Performance, Planning and Commercial Analytics at the First Respondent, St John Ambulance (SJA).

[11]On day 1 the claimant submitted a skeleton argument (65 pages). On day 7 Mr Diamond and the claimant made closing statements. Given there was insufficient time in the hearing for the Tribunal to deliberate and deliver its decision we reserved the judgment and allocated the 12 June 2025, 26 and 27 August 2025 (the first available dates the panel could meet) as deliberation days. Given the number of factual allegations about which it is necessary for the Tribunal to make findings, 3 deliberation days were required.

[12]Mindful the claimant is not represented we took some time on day 1, and ongoing throughout the hearing, to explain the process of an Employment Tribunal hearing to the claimant. We invited her to ask questions where she required clarification (which she did) and gave her guidance in asking questions of the respondents’ witnesses. In doing so we were mindful of, and referred parties to, the Employment Tribunal Procedure Rules 2024. We explained the rule 3 (the overriding objective) and, specifically, rule 3(2(a) (the requirement for a Tribunal to ensure parties on an equal footing(. It was clear to us that the claimant took account of and followed this guidance; she presented her case in detail and with a clear structure. We are satisfied that the claimant was able to participate fully in the proceedings and give her best evidence. Preliminary applications

[13]By email dated 23 March 2025 the claimant made an application for an anonymisation order for a second witness (HH). By response dated 11 April 2025 the respondents did not object to this application. At the hearing Mr Diamond noted that while the respondents were being pragmatic, the Tribunal needs to have in mind the principle of open justice. We agree. It is fundamental in deciding whether to make an anonymisation order that we start with the principle of open justice, then balance the relevant articles of the European Convention on Human Rights (“ECHR”) which are engaged by the request.

[14]The Tribunal has a power, under rule 49 of the Employment Tribunal Rules of Procedure, to make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings. The order must be necessary in the interests of justice, to protect the ECHR rights of any person or in the circumstances identified in s.10A Employment Tribunal Act (which is not relevant here). The claimant is seeking an anonymisation order for an adult witness (who she describes as a family friend) on the basis that the giving of evidence publicly in these proceedings may damage the professional reputation of that person. We have considered the short witness statement provided; the family friend expresses an opinion about the first respondent and describes their own experience in making a job application. The evidence is not, in our assessment, sensitive in nature. In our judgment, there is no basis before the Tribunal for anonymising this evidence.

[15]In reaching that decision, we have given full weight to the principle of open justice and to the ECHR right to freedom of expression (Article 10) and balanced this with HH’s right to a private life (Article 8). Given the witness expresses an opinion about the first respondent and was not directly present at any of the events the claimant alleges are discriminatory, we conclude that the principle of open justice must prevail.

[16]We explained to the claimant that for this witness to give evidence to the Tribunal they would need to agree to disclosing their name. On day 2 the claimant told us that as this witness evidence is not direct experience of the events complained about and instead centres on the witnesses own experience and opinion of applying for a job with the first respondent, she had decided not to call this person as a witness. Hearing Timetable

[17]An outline timetable was set out in the case management order of Employment Judge Ord (dated 5 March 2024, which was sent to parties on 27 March 2024). We largely followed this, starting with the claimant’s evidence on day 2 (the Tribunal having spent day 1 reading evidence).

[18]The Tribunal took regular breaks, starting at 10am and finishing around 4pm each day. On day 2 we discussed any reasonable adjustments required by witnesses, noting that it was recorded in the case management orders that the claimant required regular, and possibly immediate, breaks due to her mental health conditions. We took breaks approximately every hour and on a couple of occasions immediate, additional breaks when the claimant became upset giving her evidence.

List of issues

[19]A list of issues was agreed by the parties and recorded in the case management order of Employment Judge Smeaton dated 11 June 2024 and sent to parties on 5 August 2024. It is below; the italic comments are clarifications provided by the claimant during the hearing. At the hearing Mr Diamond confirmed that the respondents accept that several of the daily office interactions reference by the claimant took place, but not in the context described or with the interpretation applied by the claimant. 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 23 May 2023 may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in s.123 EqA 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 race discrimination (s.13 EqA 2010)

2.1 The Claimant identifies as Indian Hindu.

2.2 Did the Respondents do the following things:2.2.1 On 12 September 2022, the Second Respondent did not carry out an induction for the Claimant.

2.2.2 Upon commencement of her employment on 12 September 2022, the Second Respondent denied the Claimant training and learning opportunities and her requests for the same were ignored by the Second Respondent.

2.2.3 Between 12 September 2022 and 21 October 2022 and on several other occasions, the Second Respondent denied the Claimant the opportunity the work from home three days a week in accordance with her contract. The claimant confirmed that she relies on the contract incorporating the first respondent’s policies, specifically the hybrid working guidance.

2.2.4 Upon commencement of her employment, the Second Respondent asked the Claimant where she was from and, upon learning that the Claimant was Indian Hindu, segregated the Claimant from the rest of the team by making her sit in the last row.

2.2.5 On 21 September 2022, and on other occasions throughout the Claimant’s employment, the Second Respondent made comments to the Claimant such as ‘I did not interview you’, ‘I have never seen your CV’, ‘have you ever worked before as admin or in an office’ ‘I did not choose you’ and ‘where are you from’. The claimant relies on the second respondent’s repeated (she says) asking where the claimant is from as the something more than a difference in race and treatment; the claimant’s case is that the second respondent treated her well until the second respondent “found [the claimant’s] race.

2.2.6 On 26 September 2022, upon the Claimant becoming aware that a position identical to hers but on a permanent basis was being advertised, she was told by the Second Respondent that she was ineligible to apply because she was bound by the terms of her fixed term contract until 12 June 2023.

2.2.7 On 3 October 2022, the Second Respondent told the Claimant to address her by her full name, unlike the Claimant’s colleagues who were allowed to address the Second Respondent as ‘Izzy’.

2.2.8 Between 12 September 2022 and 21 October 2022, the Claimant had no 1- 2-1s or development plan put in place until she raised a complaint about the same.

2.2.9 The Second Respondent marked the Claimant’s completed tasks as incomplete or in progress, added tasks retrospectively to her action tracker and blamed the Claimant for not completing them, and failed to arrange cover during the Claimant’s annual leave in October 2022, leading the Claimant to raise a complaint on 2 November 2022.

2.2.10 On 12 December 2022, when weather disrupted a planned team day, the Second Respondent accused the Claimant of being a hurdle and the cause of the disruption in planning the team day.

2.2.11 On 5 December 2022, the Claimant’s request for SAP refresher training was ignored by the Second Respondent.

2.2.12 On 13 December 2022, the Second Respondent forced the Claimant to accompany her and travel in unsafe weather conditions to Reading.

2.2.13 On 13 December 2022, the Second Respondent embarrassed the Claimant in front of her family by refusing to allow the Claimant to accompany her daughter to the road in light of the unsafe weather conditions.

2.2.14 On 13 December 2022, following the Claimant’s indication that she needed to call the GP at 9am, the Second Respondent started a team meeting 30 minutes earlier than planned causing the Claimant to attend late.

2.2.15 On 13 December 2022, the Second Respondent announced a training and learning plan which allowed for every member of the team to train others but which excluded the Claimant from receiving any learning from her colleagues.

2.2.16 On 19 December 2022, the Second Respondent responded to the Claimant’s request to work from home due to sickness with displeasure.

2.2.17 On 3 January 2023, on the Claimant’s return to work, the Second Respondent marked work the Claimant had completed as incomplete and added unpleasant comments.

2.2.18 On 3 January 2023, the Second Respondent did not respond to the Claimant’s request for guidance on accessing the Health and Safety shared inbox, leaving the Claimant to figure it out for herself. Thereafter, on 7 March 2024, when the Claimant tried to arrange emails within that inbox, the Second Respondent told her she had done the task wrong and questioned her capability.

2.2.19 On 3 January 2023, on the Claimant’s return to work, the Second Respondent marked three out of four of her working days that week as office days.

2.2.20 On 6 January 2023, the Second Respondent questioned the Claimant’s work experience in an office environment.

2.2.21 On 3 February 2023, the Second Respondent asked the Claimant to move from her seat so that a new joiner could have it, resulting in the Claimant having to search every day for a vacant seat.

2.2.22 On 9 February 2023, the Second Respondent introduced members of her family to the team but did not introduce them to the Claimant.

2.2.23 On 16 February 2023, upon the Claimant’s return from annual leave, the Second Respondent required her to work in the office for the remaining two days.

2.2.24 On 17 February 2023, the Second Respondent marked the Claimant as working office days for three days the following week.

2.2.25 On 7 March 2023, the Second Respondent blamed the Claimant for not addressing an issue raised by a trainer in an email to the shared email inbox the same day.

2.2.26 From the commencement of the Claimant’s employment, she was not given the opportunity to receive training in IOSH administrative procedures, project management and certification notwithstanding her request for the same.

2.2.27 On 10 March 2023, the Second Respondent extended the Claimant’s probation giving baseless reasons for doing so

2.2.28 During a probation review meeting on 10 March 2023, when the Claimant raised concerns about her mental and physical health, the Second Respondent remained silent and did not suggest any solution to the difficulties caused by the Claimant not having a fixed seat nor did she offer any support for the Claimant’s mental health.

2.2.29 The First Respondent failed to afford the Claimant a fair grievance procedure by failing to give her an opportunity to properly articulate her grievance, reaching a decision without a full investigation and failing to share written notes of the formal meetings.

2.2.30 On 25 May 2023, the First Respondent rejected the Claimant’s grievance appeal in which she had raised allegations of discrimination and harassment.

2.2.31 On 8 June 2023, the First Respondent informed the Claimant that her fixed term contract would not be extended.

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 relies on Mr Jilu Miah as a comparator in respect of all allegations or a hypothetical comparator in the alternative.

2.4 If so, was it because of race?

2.5 Did the Respondents’ treatment amount to a detriment? 3. Harassment related to race (s. 26 EqA 2010)

3.1 Did the Respondents do the following things: 3.1.1 The allegations set out above as acts of less favourable treatment

3.2 If so, was that unwanted conduct?

3.3 Did it relate to race

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

3.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 4. Remedy for discrimination

4.1 Should the Tribunal make a recommendation that the Respondents take steps to reduce any adverse effect on the Claimant? What should it recommend?

4.2 What financial losses has the discrimination caused the Claimant?

4.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

4.4 If not, for what period of loss should the Claimant be compensated?

4.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

4.6 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

4.7 Is there a chance that the Claimant’s employment would have ended in any event? Should her compensation be reduced as a result?

4.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

4.9 Did the Respondents or the Claimant unreasonably fail to comply with it?

4.10 If so is it just and equitable to increase or decrease any award payable to the Claimant?

4.11 By what proportion, up to 25%?

4.12 Should interest be awarded? How much? Findings of fact Findings on witness credibility

Findings of fact

[20]We found the claimant keen to assist the Tribunal and her answers clear, direct and her recollections aligned to her written statement.

[21]However, Mr Diamond referred us to a transcript of the grievance hearing. This was taken from a recording by the claimant. The transcript records that at start of this hearing Mr Keane expressly asks the claimant to agree that neither party would record the hearing, to which the claimant agreed. She then proceeds to record the hearing without Mr Keane’s knowledge. There is also documentary evidence before us which contains 3rd party personal information which the claimant admits she acquired from taking photographs of documents she found on the second respondent’s desk and that she did so without her knowledge. The respondents were not aware these documents had been photographed until exchange of documents in these proceedings. This conduct invariably affects our assessment of the claimant’s credibility in that her conduct has not always been truthful. However, in assessing this conduct we have borne in mind that there is evidence before the Tribunal that the claimant was struggling with her mental health at this time. Further, we note that, on becoming aware that a convert recording had been taken and that documents had been copied, the first respondent did not raise concerns.

[22]Mrs Dagar was not a reliable witness. While it was evident that Mrs Dagar was keen to assist the Tribunal, her evidence was manifestly inconsistent and simply not credible when assessed in all the circumstances of 13 December 2022. At the start of her evidence Mrs Dagar confirmed to the Tribunal that she had just read her witness statement. When asked to recall the morning of 13 December 2022 she told us: “As far as I remember I did not cross the road . I was not face to face with them so I don’t know if they saw me”. This recollection of events bore no resemblance to the account in her witness statement. After a long pause Mrs Dagar changed her account to a second account which was not consistent with her witness statement but bore more resemblance to it [“I then crossed the road and I stood behind Angela….I was hearing [the conversation] clearly”.

[23]When we pointed out the inconsistency to Mrs Dagar her explanation was that she was nervous and confused. Even accounting for this, which is understandable when giving evidence in proceedings, we do not find this explanation for such significant inconsistencies, and a sudden change in evidence, plausible. Mrs Dagar’'s recollections are not reliable; therefore, we did not consider Mrs Dagar’s evidence in our deliberations. For this reason, we have decided not to explore further why Mrs Dagar changed her evidence so suddenly.

[24]Miss Stoney gave direct answers to questions which were consistent with her written statement and the documents to which she referred us. We found her willing to make factual concessions, for example when the Tribunal queried a line manager and buddy being the same person, she agreed, and said “I see where you are coming from”.

[25]Ms Borek did not hesitate in answering questions; however, on occasion her answers were inconsistent with the documentary evidence. For example, her recollection as to who did not call her Izzy and her recollection of introducing her family. We make factual findings about these events below. On occasion Ms Borek’s answers were evasive. For example when the Tribunal asked: “did you or did you not add tasks retrospectively to the tracker?” Ms Borek replied “I don’t recall”. The Tribunal explored this: “is that, that you don’t recall doing so, or you don’t recall whether you did or you didn’t, just need to be clear” Ms Borek replied: “I don’t remember exactly what I did but I don’t recall that I did.” In assessing this evidence we are mindful of the amount of time which has passed since many of the events complained of (3 years) and we have borne in mind that untruthful evidence may be given to mask guilt or fortify innocence.

[26]We found Mr Keane’s answer to the Tribunal’s question as to how any connection to race was investigated unclear; it did not help the Tribunal determine how the grievance process and any investigation was actioned and whether the first respondent took account of the claimant’s race in this process. Mr Davey’s evidence was direct and consistent with his witness statement and the written documents.

[27]The claimant questioned the authenticity of certain documents disclosed by the respondents, specifically seven pages of handwritten notes disclosed by the second respondent. The claimant told us these meetings never took place. In her evidence she suggested that the notes had been created for these proceedings. In considering the specific allegation about 1-2-1 meetings made by the claimant in her claim (and not the extrapolation of this in her witness statement) we have found that we do not need to make findings as to the authenticity of these notes; we explain the reasons below. Scope of factual allegations

[28]Before we determine the factual basis of the allegations, we make the observation that the claimant’s witness statement and written skeleton argument contain evidence about, and reference to, allegations that are not foreshadowed in the claimant’s ET 1 Claim Form and accompanying document, even accounting for the relabelling of claims recorded at the case management hearing before Employment Judge Smeaton on 11 June 2024.

[29]In making this observation we are mindful of the case of 1) Mr A Chandhok 2) Mrs P Chandhok v Ms P Tirkey

UKEAT/0190/14/KN

(a case about race discrimination) in which Mr Justice Langstaff noted that (underlined comments are Tribunal emphasis we consider particularly relevant to this case: “…such an approach [referring to material being identified from a witness statement / things the claimant told the judge which were not in the claim documents (ET1 and Particulars of Claim)] too easily forgets why there is a formal claim, which must be set out in an ET1. 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. A Respondent is not required to answer a witness statement, nor a document [which would include a skeleton argument], but the claims made – meaning, under the Rules of Procedure 2013 [now the Employment Tribunal Procedure Rules 2024] the claim as set out in the ET1. ……the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3…..it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it….It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.

[30]Therefore, we must follow this decision of the Employment Appeal Tribunal and consider, and determine, only those factual allegations which are clearly stated in the Claim Form and Particulars of Claim (summarised in the list of issues) and not factual allegations which arise for the first time in a witness statement or skeleton argument. Factual findings Start of employment

[31]The claimant started employment with the first respondent on 12 September 2022. She was employed as a Qualifications Assistant Level 1 until 6 June 2023. She accepts this was a fixed term contract which was terminated at the end of the fixed term.

[32]Parties agree the second respondent did not interview the claimant as she was on holiday. The second respondent told us as a result she had not seen the claimant’s CV. The claimant challenged this. Miss Stoney told us that the second respondent had not received a copy of the claimant’s CV; indeed, we have seen a team’s exchange dated 6 January 2021 in which the second respondent requests a copy of the claimant’s CV. Miss Stoney told us that the second respondent did not receive a copy of the claimant’s CV at this time and there is no documentary evidence that she did subsequently. For these reasons we prefer the second respondent’s recollection that she did not receive a copy of the claimant’s CV.

[33]The claimant alleges that on 12 September 2022, the second respondent did not carry out her induction and from the start of her employment denied her training and learning opportunities. At the hearing the claimant accepted that it was Miss Stoney who carried out her induction on 12 September and that she did not meet the second respondent until 13 September because the second respondent was on holiday on 12 September.

[34]It is agreed that the claimant and the second respondent met for the first time on 13 September 2022. The claimant alleges that the second respondent asked her multiple times “Where are you from?” until she disclosed that she was Indian Hindu. The claimant alleges this enquiry was repeated on 21 December 2022 and that she has a recollection these words were noted on her task sheet. The second respondent accepts that she asked the claimant where she was from once when they first met on 13 September, she says as she wanted to understand her culture as colleagues were from many different backgrounds, she being Catholic and Polish, and the office celebrated all.

[35]We find that through her questioning the second respondent established at the claimant was an Indian Hindu. There is no evidence of any malice in this enquiry. We find it is a reasonable enquiry to make of a new colleague and the claimant she did so to understand her culture because the evidence before us is that the religious days and festivals of colleagues’ religions were celebrated in the office. Having established that the claimant is Indian and Hindu on 13 September, we find it would not have been necessary for the second respondent to repeat this question on 21 September. We find the claimant’s allegation that the second respondent made the same enquiry in December simply not plausible.

[36]The claimant relies on the second respondent’s repeated asking where she is from as the “something more” than a difference in race and treatment in her complaints of discrimination. It is our finding this question was only asked on 13 September 2022. Seating

[37]The claimant told us that on 13 September 2022 when the second respondent knew she was Indian Hindu she was told to sit in the last row of the hot desks, thereby segregating her from colleagues. The claimant alleges this was because of her race/religion and contrary to the first respondent’s hot desk policy.

[38]Initially the claimant says she sat in the middle row but was told by the second respondent she could not do so as the middle row was for the resources team and the first row is for the managers. The diagrams parties produced to the Tribunal of the desk layout in Park Royal (the London office at which the claimant and second respondent worked) record managers names on the front row; this evidences that practices were already in place meaning the managers generally sat together on the front row and the qualifications team sat together on the back row. There is no evidence that the claimant was not told to sit, or told to sit, in a certain place; we find she ended up on the backrow by the default of seating practices which were already in place, as the plans illustrate.

[39]The claimant accepts that she did not complain about having to sit on the back row at the time. However, her evidence is contradictory: “I recognized it was a bad thing that happened and knew it was a bad thing that was happening to me but did not know at the time it was necessarily because of my race; this was something I realized later” “I did not want to raise race at this point because I was new in the job, did bring it to the attention of the senior management and when I felt it”.

[40]Her conflicting recollections support our finding that the seating plan arose from disregard for the hot desk policy generally due to colleagues habits of navigating to the same seat and not because of the respondents’ knowledge of the claimant’s race or religion.

[41]Therefore, we find that from September 2022 the claimant chose to sit at desk 6 (on the back row) each time she was in the office. It is agreed, and the diagrams reflect the fact, this desk was an end seat. She occupied the same desk until 3 February 2023 when she alleges that the second respondent asked her to move from her seat [Tribunal emphasis] so that a new joiner (Mr Miah) could have it resulting, she told us, “in the [her] having to search every day for a vacant seat.” Indeed, her own behaviour reinforces our finding that colleagues navigated to the same seat and undermines her complaint that the hot desk policy was ignored. If that was the case, she too would have been complicit in doing so by always occupying the same seat and complaining when she was asked to move.

[42]Given the hot desk policy, and the claimant herself advocating it in her claim, we find desk 6 was not the claimant’s seat. On the one hand, the claimant relies on a hot seat policy and objects to being told there are places she cannot sit (contrary to a hot desk policy); on the other hand she complains she was asked to move. Based on the Tribunal’s workplace expertise, we make the observation that it is not unusual in an office with a hot desk policy for colleagues to navigate to the same desk; indeed, that is human nature. The fact the claimant identified desk 6 as “her seat” supports our finding that it is human nature to navigate to the same seat, even when a hot desk policy is in place. This aligns with managers sitting on the front row and the resources team on the second.

[43]The second respondent accepts that she wanted Mr Miah to sit at desk 6 when he joined in February 2023, telling us that as it was an end desk it meant a trainer could sit alongside hence the request the claimant move. The claimant told us the second respondent “could have allowed the new starter to sit somewhere else instead of making me move”. This statement is ironic, given one of her allegations is premised on the respondents’ failure to comply with a hot desk policy and another on the fact she considered desk 6 “her desk”.

[44]As desk 6 was not the claimant’s, anyone could sit at it. We find the second respondent’s explanation as to why she identified the desk for a new starter credible; as the manager, this was an option open to her, given the hot desk policy was guidance and there is a credible reason for the request (the location of the desk). However, we find she would have been aware that the claimant navigated to this desk, in the same way that she as a manager navigated to a desk on the front row. Putting a post-it note and materials on the desk was not an appropriate way to “claim” the desk for the new starter. A more professional approach would have been for the second respondent to have a chat with the claimant about the new starter and the reason she wanted him to sit at the end desk.

[45]Given the contradictory nature of her evidence, we find that reality was a hot desk policy adjusted by social norms of people navigating to the same seat: managers in the front row; resource team the second; qualifications team third row. The claimant’s evidence reinforces this finding; repeatedly she chose the same desk. She was asked to vacate desk 6 (in line with the hot desk policy on which she herself relies) so that it could be used to train a new starter, given it was an end desk. Comments by the second respondent

[46]The claimant alleges that on 21 September 2022, and on other occasions throughout her employment, the second respondent made comments to the Claimant such as ‘I did not interview you’, ‘I have never seen your CV’, ‘have you ever worked before as admin or in an office’, ‘I did not choose you’.

[47]The second respondent accepts that she said ‘I did not interview you’, ‘I have never seen your CV’, ‘have you ever worked before as admin or in an office’. Miss Stoney told us, and we have found, that the second respondent would not have seen or had access to the claimant’s CV as she did not conduct her interview and was on holiday when she joined based on Miss Stoney’s evidence.

[48]We have considered the 6 January 2023 team’s chat exchange where the second respondent asked the claimant about her work experience in an office environment. “What is your experience working at the office. Did you work in an office environment as admin before”.

[49]The context of the message is key. The exchange starts with the second respondent asking the claimant whether she has filed completed emails in the H&S folder. The claimant replies that she does not know how to do that, to which the second respondent replies “drag and drop”. The claimant again replies she does not know how to do this. Given the claimant had told her manager she did not know how to do an administrative, filing task, we find it is reasonable for that manager to enquire about the employee’s experience. It is evident from this exchange (and others we have considered) that the claimant and second respondent had a strained working relationship. We find the second respondent’s reply (“drag and drop”) curt. We find the claimant’s response to these questions (“I shall reply to this please allow me some time) inexplicable, and awkward, given it is a straightforward question. It seems to us that she takes insult at this enquiry, something recognised by the second respondent who says “I am truly sorry if you find this [question] insulting. I worked on the premise you have office experience.

[50]Objectively, it is reasonable for a manager to ask an employee about their experience and reasonable for them to expect an answer explaining the relevant experience. We find the question was asked because the claimant was struggling with the administrative task of dragging emails into electronic folders and the second respondent was seeking to understand her previous experience. We find the claimant awkward in not giving a straight answer. This supports our overall finding that there were tense relations on both side between the claimant and second respondent throughout the period of the claimant’s employment (we refer to further examples below).

[51]The claimant alleges that the second respondent told her “I did not choose you”. Neither in her witness statement nor her skeleton argument (both of which are lengthy), the claimant does not identify whether this was a written or oral comment, nor when it was allegedly said. Despite lengthy teams messages and email exchanges there is no documentary record of this comment. The second respondent accepts that she said to the claimant “I did not interview you”. Taking the claimant’s case at its highest, it could be that the claimant has interpreted these words as I did not choose you. In this regard there can be no criticism of the second respondent. She did not interview the claimant and made this comment that context Indeed, given our findings about the claimant’s credibility, we find that the claimant chose to disingenuously misinterpret the words and present them to the Tribunal in a manner and affording them a meaning that the contemporaneous messages evidence was clearly not warranted. Training and learning opportunities

[52]The claimant says she was denied training and learning opportunities and her requests for the same were ignored by the second respondent. At the hearing the claimant identified the requests as an email she sent to Miss Stoney on 19 October 2022 (pages 190 and 191). While the focus of this email is issues the claimant raises about requests to work from home, at paragraph 4 she states: “I would like to develop more understanding about my role in future please. Will Izabela be sending me a daily task and I need to do that? A lot of times I have nothing to do I just keep asking what I can do next. I don’t wish to share any more screenshots. I worked for about 90 minutes today. I am not complaining about working less just mentioning that I have free time I have learnt the process but I really require more practice otherwise I’ll keep referring to my notes.”

[53]In her claim form the claimant refers to the communications below as requests for training and learning opportunities. A literal interpretation of these exchanges is that the claimant is asking for more work. However, taking the claimant’s case at its highest (mindful she is not represented) and account of the words in her email to Miss Stoney, we have taken the communications as requests for learning opportunities and considered whether they were ignored. 53.1. 4th October 2022 at 11:40 – ‘Please can you tell me what I can do next? Printing?” The second respondent replied to this message at 11:54 to say after lunch they would look at resources for the week commencing 17 October and get the resources printed. We find this request was not ignored. 53.2. 5th October 2022 at 10:10 – “Can you please provide me with a list of tasks I’ll be doing on a daily basis? I have taken lots of notes and everything is getting mixed up. I would slowly start slipping in these notes under various heads. I believe this would help me get organised.” The second respondent did not reply the same day; the claimant followed up with a suggestion the following day which was confirmed by the second respondent. We find that this request was not ignored. 53.3. 6th October 2022 at 9:12 am – “Done with the orders for today. Please advise what I can do next.” There is no evidence before us that the second respondent replied to this request. The second respondent did expressly reply to this request; however, the claimant’s next message is at 12.29 when she confirm completion of another task. Both are in the office [the claimant messaging to say she is expecting a call from her son’s school will step out when it rings, the second respondent replying that she does not need to ask]; we find the claimant was instructed to do another task which she subsequently reports back she has completed. 53.4. 18th October 2022 at 11:42 – “Please let me know what I can do next. Until then, I am working on my notes.” The second respondent did respond to this request, confirming the claimant’s suggestion she sort her notes, to which the claimant responds with “okay” with an emoji smiley face. 53.5. 19th October 2022 at 12:23 – “What can I do next?” The second respondent replies to this request initially to say she is in a meeting and subsequently (at 11:12) listing a couple more tasks for the claimant to complete.

[54]Taking an overall view of these exchanges, it is evident to us that the claimant was a conscientious worker, who was keen to learn and dispensed with her allocated tasks efficiently, and was then proactive in seeking more work. However, while she may have been frustrated that she did not have sufficient work to do (although we find the friendly nature of the exchanges and use of happy emoji by the claimant do not suggest frustration), it is not the case that these requests were ignored.

[55]The claimant also alleges that, from the commencement of her employment, she was not given the opportunity to receive training in IOSH administrative procedures, project management and certification notwithstanding her request for the same. The respondent says she had this training at the start of her employment

[56]Parties agree that the claimant attended IOSH training on 8 March 2023, but was asked by the second respondent to leave, the claimant says because of her race, the respondent says because she was needed to do an urgent task.

[57]At the hearing the second respondent explained IOSH tasks as administrative and that there was no project management element. We have considered the information about IOSH on the development plan. It refers to an administrative IOSH course and references collecting student projects and certification. For this reason we accept the second respondent’s explanation and find there was no separate training for project management or certification. The claimant has misunderstood the reference to projects and extrapolated it to a separate management task which did not exist; as such there was no separate training. Similarly, the claimant misunderstood the reference to certification. This refers to the administrative process of providing certificates to student. There is no separate training element or requirement for this. The claimant did have some IOSH training at the start of her employment, as evidenced by her development plan. There was no lost opportunity as there was no separate project management or certification training for the reasons explained. She did leave the training in March 2023, but has not provided any evidence as to why she says this decision was motivated by her religion or race. We find the reason she left was to carry out an urgent task at the request of the second respondent.

[58]The claimant alleges that Mr Miah (who was recruited on as a Qualifications assistant level 1 on a permanent contract) received comprehensive training. We have considered the documents to which she referred us in her witness statement; these confirm his appointment, including a photograph of Mr Miah standing with the team and evidence that Mr Miah attended the qualifications team training day on 6.2.23 before he started in the role. We find that he had been recruited by this time and, applying our expertise, it makes sense for a new recruit to be invited to a team training day if one is scheduled close to the start of their employment, particularly if they are an existing employee, as Mr Miah was. There is no evidence that a team day took place just before the start of the claimant’s contract. The documents to which the claimant referred us do not evidence that Mr Miah was treated more favourably by being invited to the team day. Working from office / home

[59]The claimant alleges that between 12 September 2022 and 21 October 2022 and on several other occasions (addressed below), the second respondent denied her the opportunity the work from home three days a week in accordance with her contract. At the hearing the claimant told us that the opportunity to work remotely was the main reason she accepted the job and she was told the first respondent operated an 80/20 hybrid model. Miss Stoney accepted that she confirmed this with the claimant at the start of her employment.

[60]There is no work from home clause in the claimant’s contract; the contract refers to the first respondent’s policy. As a matter of law, policies are guidance and not a legally enforceable document and the reference in the contract does not afford them this status. Mindful the claimant is not represented, we have taken her claim at its highest and considered the policy guidance.

[61]We find the claimant’s interpretation of the policy too strict and, applying our expertise, lacking the commerciality with which an employer usually interprets policy guidance. The claimant seems to have focused on her manager requiring her agreement to be required to come into the office more than 20% of her working week. That is not a reasonable or commercial interpretation of the policy wording. It states: “Our approach to hybrid working focuses on outcomes and achievements rather than visibility in the office or manager preference. It is underpinned by trust and the desire to improve the work-life balance for individuals and improve the efficiency and effectiveness of the charity. Where roles can benefit from hybrid working, line managers will meet with individuals to discuss their preferences and how hybrid will work for them and the team. These conversations will also discuss any issues surrounding disabilities or reasonable adjustments and take place as often as is needed. Exactly what your pattern is, how your team agree shared days, what adjustments you need, etc., is up to you and your line manager to agree, and this document should help you have that conversation.”

[62]The employee may express a preference about their working pattern; however, “up to you and your manager to agree” does not mean that if an employer wants an employee to work more than 20% in the office the employer requires the employees agreement. That would be to elevate the policy guidance to the status of contractual term. As a matter of law, it is not. The correct and reasonable interpretation is that the starting point is 80:20 hybrid, an employee can make a request for additional work from home days (as parties accept that Miss Stoney told the claimant at the start of her employment) and the respondent can require the claimant work more than 20% in the office if there is a business reason. This accords with Miss Stoney’s evidence that the first respondent was flexible but required the claimant to be in office initially to complete training.

[63]The claimant relies on the following as the requests to work from home, which she says were refused because of her race. 63.1. 4th October 2022 at 9:02 AM: “Okay :) Sorry I am not able to locate my rota. Please can you tell me when I need to be in the office this week and next week?” The claimant makes a request Tuesday 4 October for her rota that week. The rota lists her to work in the office 4 days that week. We find it is reasonable at the start of employment for an employee to work in the office more days than policy guidance. 63.2. 11th October 2022 at 3:40 PM: “We have a festival on Thursday. I have just sent a request to work from home on Thursday. Please see if it is possible. I will get all boxes ready tomorrow.” The claimant was on the rota to work in the office 3 days. As this is at the start of her employment, we find the rota was reasonable. Following this request, the amended rota evidences that claimant was allowed to work from home on the Thursday that week. We find she worked in the office 2 days that week. 63.3. 12th October 2022 at 11:44 AM: “I want to put in a request for the coming two weeks, but I can’t see my shifts. So I am mentioning it on chat, and I’ll be grateful if you could please consider the same. My husband is visiting only for 12 days which includes his day of coming in and flying out of the country! I have a fire marshal course on 17th Monday, can I work the second half from home, please? Also, can I work from home on 21st, 27th, and 28th October? Thank you :)”. The request on 17th October 2022 at 9:17 AM relates to the same period: “I hope I am still okay to work the second half from home. I need to do prayer with family. Did not mention the reason earlier when I requested for half-day from home because I don’t want to be seen as a very religious person.” The rota for that week evidences that the claimant worked at home for 3 days out of 5 that week. Her request was refused; she worked in the office 20 October (when the second respondent had a flat tyre) and the morning of 21 October to attend a meeting with the second respondent.

[64]In a teams’ message dated 19 December 2022, when the claimant messages the second respondent to say she is “not recovered completely” [from illness] and informs her manager what she will “be working from home today”, the second respondent replies: “Well I needed you in the office today as need some certificate to be sent urgently….Sending me teams message at 7am is not the way to let me know you are not in ….”

[65]We agree with the second respondent this request is not appropriate. Indeed, we disagree with the claimant this message constitutes a request. The claimant is not asking her manager, she is telling her she is going to work from home because she is unwell.

[66]If the claimant is unwell she should not be working at all. It is in the context of this exchange that the claimant emails the second respondent on 19 December 2022 regarding her request to work from home because she is unwell. The claimant says this request was met with displeasure from the second respondent. We find this is not a request to work from home. Furthermore, we find that, while the second respondents response reads as sent with frustration, this is justified given our findings about the request. The claimant alleges that after these exchanges the second respondent made the following remark: “We have done enough favours for you, taking time off for Diwali and working from home when your husband is visiting. I never got off for Christmas Eve, which is so important in my culture.”

[67]Having read the wider context of the messages we find that the second respondent did not say the words alleged. In a teams message to the claimant on 19 December 2022 the second respondent writes [Tribunal emphasis]: “Today was the last day I could guide you through the stuff that needs to be done in the office before the Christmas as I am off for the rest of the week, which means I have to get other people involved in the stuff that my team should be doing.”

[68]We must consider why the second respondent would say the words alleged by the claimant when there is contemporaneous written evidence that she was off the rest of the week. 19 December 2022 is a Monday so the rest of the week includes the 24 December. In fact, this is a Saturday, so the second respondent would not need to complain. We find she did not say this comment.

[69]On 3 January 2023, on the claimant’s return to work, the second respondent did mark three out of four of her working days that week as office days. However, this was subsequently changed and the claimant’s shift rota shows that she worked 2 days in the office and 2 days from home, as evidenced by the rota spreadsheet.

[70]The claimant alleges that on 16 February 2023 on her return from annual leave, the second respondent required her to work in the office for the remaining two days. This was initially the case; however, when the claimant requested to work from home, the rota was changed.

[71]For the reasons already explained, while there was an expectation that the role would have a majority element working from home, as Ms Stoney discussed with the claimant during her interview, this was not mandated in the claimant’s employment terms and was subject to the first respondent’s policy (which the claimant appears to have misunderstood) that allowed the first respondent to require its employees to be office based if the respondent considered there was a business need. This option was within the discretion of the first respondent and its managers and was not at the employees election. On 17 February 2023, the second respondent did mark the claimant as working office days for three days the following week. However, this was subsequently changed at the request of the claimant and the claimant only worked in the office on 2 days the following week.

[72]For these reasons, we find that during her employment the times that the claimant was required to work in the office were within policy. Permanent role

[73]On 26 September 2022, the claimant alleges that, when she became aware that a permanent Assistant Qualifications Level 1 role, the second respondent told her she was ineligible to apply because she was bound by the terms of her fixed term contract until 12 June 2023. Miss Stoney was the hiring manager for this position. The claimant says the first respondent told her about the role in a conversation on 26 September 2022 “the second respondent mentioned that due to increased workload, they have advertised another position for a Qualifications Assistant Level 1 role” but cannot recall where parties were when they had this conversation. The documents before us evidence that the role was not advertised until January 2023. For these reasons, we find it was not credible that the second respondent told the claimant the role was being advertised.

[74]The claimant seeks to reply on a “dummy application” she says was submitted in September 2022. However, the person she says submitted the application refused to give evidence to the Tribunal without an anonymity order. We considered, and refused the request. As the applicant is not willing to be identified, we cannot take account of the dummy application.

[75]We find it is feasible that the claimant and first respondent discussed the permanent role, particularly when the first respondent advertised it externally in January 2023. Neither can recall how / where this conversation took place. There is no evidence of a written exchange and we have seen a comprehensive record of teams and email messages. The claimant says she “inquired with the Second Respondent if I could apply for the permanent role. The Second Respondent refused, stating that I was bound by my contract until 12th June 2023 and therefore ineligible to apply. However, she assured me that my role would definitely be made permanent due to increased workload.” Taking the claimant’s case at its highest, we find it feasible she was told that she did not need to apply (rather than she could not) apply for this role as it was likely that her fixed term contract would be extended given the amount of work (which both parties agree and their teams messages attest was busy). The first respondent subsequently decided not to extend the fixed term contract, it says due to concerns about the claimant’s performance. The claimant seems to misunderstand the fixed term contract. That is no criticism. We are mindful she is not represented. Even if the first respondent had not concerns about the claimant’s performance there is no requirement for an employer to extend a fixed term contract or to give an explanation for not doing so. Colleagues

[76]On 3 October 2022, the second respondent told the claimant to address her by her full name. She accepted that other colleagues called her Izzy, but told us that this was only colleagues she had know some time and who had become friends. However, when asked to give examples of colleagues who called her Izabela, she gave several examples of colleagues for whom documentary evidence shows called her Izzy and she did not correct them. Therefore, we find the second respondent’s explanation that only friends called her Izzy not plausible. We find that the second respondent made a conscious decision not to allow the claimant to call her Izzy.

[77]It is accepted that on 9 February 2023, the second respondent invited members of her family to the office and introduced them to colleagues. The claimant says she was not introduced. The respondent told us that this was because the claimant often wore headphones, which she denied. The second respondent’s evidence was inconsistent; initially she told us that she made an introduction to everyone. Contradicting this she told us she introduced colleagues individually. Had she introduced colleagues individually, there is no reason why she could not have tapped the claimant on the shoulder had she thought she was wearing headphones. We find that the second respondent made a conscious decision not to introduce her family to the claimant. 121 meetings

[78]Between 12 September 2022 and 21 October 2022, the claimant alleges she had no 1-2-1s or development plan put in place until she raised a complaint about the same. We have considered the document identified by the claimant in evidence as the complaint (the email she sent to Miss Stoney on 19 October 2022. We have considered this email. The focus is the claimant’s concerns with her rota and working pattern. There is no express reference to 1-2-1 meetings. Furthermore, the claimant says “please do not view this as a complaint. Izabela is a great manager. I love working with her.” We find this is an enquiry early in employment in which the claimant is seeking clarity about how certain aspects of her role (primarily her work pattern and allocation with work. It is certainly not a complaint.

[79]Taking the claimant case at it’s highest, we have also considered the reference to a 1-2-1 in the claimant’s 6 January 2023 teams exchange with the first respondent. She says “Let me know when is our 1-2-1 we can fill in the gaps. In the meantime please read your question and see how you Could [sic] have worded it better” The wording is clear: this is not a complaint about not having a 1-2-1; it is a response to a question which the claimant found unreasonable. We find that the claimant did not complain about 1-2-1s during her employment in the manner she alleges to the Tribunal.

[80]The first respondent accepts that, by its policy, the line manager is responsible for conducting 1-2-1 meetings and is required to upload notes of the same to My Data (an internal system for storing HR documents). It is agreed that a first 1-2-1 meeting took place on 21 October 2022. While chronologically, this took place, we find it did not take place as a result of the claimant complaining she had not had a 1-2-1. We find that the first respondent (through Miss Stoney) is responding to queries raised by the claimant in the 19 October email by asking her line manager (the second respondent) to meet and address the queries It is plausible notes were taken at this meeting. However, given our findings as to the reason the 1-2-1 took place (that it was not triggered by a complaint), we do not need to make any further findings about the regularity or recording of these 1-2-1s.

[81]It is agreed that the claimant only received one development plan during her employment. In her evidence the claimant suggests this was deliberately withheld from her and “only shared after I formally raised a concern on 19th October 2022 with my senior manager, Ms Gill Stoney”. In her claim the claimant has inaccurately portrayed this email; for the reasons stated above it is not a complaint.

[82]Again, the claimant has completely misrepresented to the Tribunal. Her email to Miss Stoney is not a complaint. While best practice is to set out a development plan at the start of employment, there is no evidence before the Tribunal that this was “deliberately kept from “ the claimant. Leave cover

[83]The claimant alleges that the second respondent failed to arrange cover during the claimant’s annual leave in October 2022, leading the claimant to raise a complaint on 2 November 2022. The claimant accepts that, besides the second respondent, she was the only member of the qualifications team based at the first respondent’s London office. The second respondent explained that given this constraint it was usual that she would cover the work and her message on 1 November 2022 was to seek the status of materials distribution for the following week. We have considered the messages which align with the second respondent’s recollection. While it is unfortunate she had to message the claimant while she was on holiday, we note the claimant did not reply. The second respondent was seeking to establish the status of a task which usually fell within the claimant’s remit. We find this approach to covering tasks reasonable given the team size and the message was nothing more that seeking information, albeit it would have been more appropriate to wait until the claimant returned from her holiday. In any event, the allegation is illogical. The claimant says cover for her October leave was not arranged until she complained on 2 November 2022. We have considered the exchange; we find that the claimant is irritated that some of her tasks have not been completed while she was on leave. Tracker

[84]The claimant alleges that the second respondent marked her completed tasks as incomplete or in progress. This allegation relates to the claimant’s leave in October 2022. She says that on 28 October 2022 (when she went on leave) she had completed tasks assigned to her. She complains that when she returned on 2 November there was a teams message to her (sent 1 November) asking if she has sent out material from the following week. We have compared the claimant’s action trackers for the week of 28 October 2022 which were available to the claimant before her leave (tracker 1) and after (tracker 2). On tracker 1 all tasks are complete. On tracker 2, for that week there is an additional task recorded as not completed but noted as done by the first respondent. We find that the task recorded as not completed was not on the claimant’s tracker before her leave. It was added during her leave and actioned by the second respondent. Based on the findings above, the second respondent made an enquiry on 1 November 2022 as to the status of this task.

[85]The claimant alleges that she was “blamed” by the second respondent for not completing the task. We have considered the 1 November message; it does not attribute blame. On tracker 2 the second respondent has noted: “Not completed by the deadline so had to be done by LM”. While we also find that this note does not attribute blame, we make the observation that the comment is disingenuous in the circumstances as we have found them. The task could not have been completed by the claimant as she was not aware of it before her holiday (the task not having been recorded on tracker 1).

[86]The claimant was not clear in her recollection as to the words she alleges were initially written on the task sheet. We have considered the task sheets: the only written comments relate to the listed task. Furthermore, it is usually the case that if someone receives feedback they consider negative they can articulate what that feedback said without hesitate. The claimant has presented her case in an extremely articulate, structured and comprehensive way. However, when we asked what the negative comments on the task sheet were, she struggled to tell us what was written other than repeating this question. For this reason, and given the question had been answered on 13 September, it is simply not credible that the comment “where are you from” was not recorded on the task sheet. SAP training

[87]The claimant alleges that her 5 December 2022 request for a SAP training refresher was ignored by the second respondent. We have considered the teams message. It is not a request; it is a friendly exchange on how to order materials. We find the claimant did not make a request for SAP training. The second respondent told us that the claimant had already had training with the resources team on how to order materials; she accepts she had this training at the start of her employment. The evidence before us confirms that Mr Miah also had this training at the start of his employment in February 2023.

[88]It is evidence from the many teams messages, including this exchange where the second respondent is explaining to the claimant how to order materials, there was a mismatch between the parties as to the respondents’ expectations of the claimant’s ability and her understanding of tasks. The second respondent agrees the claimant needs refresher training. This is selfevident from the enquiries made by the claimant in her teams messages. However, parties agree the training did not take place. The second respondent told us this was because the particular training was on long term sick. We accept that explanation for why the training did not take place. However, we make the observation that, as the employer accepted further training was necessary, it was incumbent for the employer to facilitate that in the circumstances. In this regard the second respondent’s support for and management of the claimant was poor. Team day

[89]On 12 December 2022, the claimant alleged that, when weather disrupted a planned team day, the second respondent accused her of being a hurdle and the cause of the disruption in planning the team day. At the hearing the claimant told us she relied on her WhatsApp exchange with the second respondent on 8 December 2022 as the basis of this allegation.

[90]It is agreed that the second respondent was hoping the team day would take place in London and when the team in Reading pushed back on this the location was moved to Reading, with the claimant being accommodating to travel there. The messages evidence that the second respondent is frustrated by the claimant being accommodating as she was relying on the claimant not travelling to Reading to hold the day in London. However, taking the claimant’s case at its highest the messages do not convey that the claimant is the cause of disruption or that she is a hurdle. Indeed, the WhatApp messages from the second respondent initially convey friendliness with the use of smiley emoji. They do go on to convey frustration (“team day is mandatory”) when the claimant says she won’t drive on a motorway or take a risk with trains (given the disruption) due to having to take her parents to the airport in the evening. The reality of the exchange is a line manager trying to arrange a team day and an employee raising genuine concerns about travel arrangements, and while initially friendly, both become frustrated due to their respective positions.

[91]The claimant alleges that, on 13 December 2022, the second respondent forced the claimant to accompany her and travel in unsafe weather conditions to Reading. It is agree that that there was yellow weather warning in place on 13 December 2022. The claimant relies on the second respondent telling her in the 8 December WhatsApp message that the team day was “mandatory” and the 13 December WhatsApp exchange about the safety of the roads (“Morning, How are the roads are you able to drive safely / Roads really bad but we are on the way”) to allege she was forced to go. It is apparent to us that the claimant was extremely conscious in her role, and that, given the wording of the 8 December message, she felt an obligation to attend the team day. However, she has extrapolated that to be being forced to attend. She was not. Had she been so concerned about the weather she was free to say that and tell her manager she would not go.

[92]The claimant alleges that, on 13 December 2022, the Second Respondent embarrassed her in front of her family by refusing to allow the Claimant to accompany her daughter to the road in light of the unsafe weather conditions. Parties agree that the claimant’s daughter got in the car and was dropped at the bus stop, due to the claimant’s concerns about her walking. We have found tensions were high and the weather bad. Ultimately there may have been some embarrassment on the part of the claimant in making this request and the conversation that followed, but there is no evidence before us that it was the second respondent’s intention to embarrass her. Indeed, the situation was resolved by the second respondent agreeing to take a short detour to drop off the claimant’s daughter, something she was not obliged to do. She would not have agreed to drop the daughter off if she had a particular aim of causing the claimant upset.

[93]On 13 December 2022 it is agreed that the claimant told the second respondent she needed to call her GP at 9am to discuss her daughter. She alleges that the second respondent started the team meeting 30 minutes earlier than planned causing the claimant to attend late. It is agreed that the meeting was due to start at 9.30am but actually started just after 9am. The second respondent told us that she did so in discussion with the presenter (who is her husband) due to the weather conditions and it was explained that the claimant was making a call and would join a little late. While this explanation is feasible, we find it was unnecessary to start early. By the nature of the call, it was unlikely to be lengthy. Indeed, the claimant was 10 minutes late to the meeting. While perhaps well intended, there was no reason why the second respondent could not have waited for the claimant to take the call.

[94]It is agreed that at the team day the second respondent announced a training and learning plan which allowed for every member of the team to train others. The claimant says she was excluded from this and therefore did not have the opportunity to learn from her colleagues. The second claimant told us that because the claimant was relatively new to the team and was still learning processes, she decided rather than asking other team member to teach her new processes I asked the Claimant to teach Sandra, a Qualifications Assistant Level 1, about IOSH process which would give the Claimant an opportunity for revision on the subject. There is no evidence that the decision was motivated to exclude the claimant. Health and safety inbox

[95]The claimant alleges that, on 3 January 2023, the second respondent did not respond to her request for guidance on accessing the Health and Safety shared inbox, leaving the claimant to figure it out for herself. We have considered the email to which the claimant refers in her witness statement and skeleton which she says is the request for guidance. The following is the only reference to the health and safety inbox in that email: “Email to be send to the trainers if any of the papers are missing. Please send the email from H&S inbox so reply will come into there: Managed to Send from H&S inbox but I need to develop more understanding on how to use/manage the account.”

[96]We find that, an objective reading of the email is that the claimant is providing the second respondent with an update and making a reflective statement about her understanding of the inbox; it is not a request. Hence there was no request to which the second respondent needed to reply, and no falling on her part.

[97]The claimant further alleges that as a result of her January 2023 request for guidance on accessing the Health and Safety share inbox (which we have found she did not make), on 7 March 2023, when she tried to arrange emails within that inbox, the second respondent told her she had done the task wrong and questioned her capability. We have considered the claimant’s 7 March 2023 teams exchange with the claimant (to which the claimant referred us in her skeleton argument as relevant communication. While both parties express frustration in some of the messaging and there is clearly confusion on both sides as to how the task has been carried out, the second respondent does not tell the claimant she has done the task wrong, nor can the words be interpreted, objectively and reasonably, as the second respondent her ability. The messages are length and confusing; we make the observation that, given the apparent confusion of both parties in identifying what has or has not gone wrong with the inbox, lengthy exchanges of teams messages was not the best method of communications. It seems to us the messaging added to the confusion; in this regard the second respondent as the line manager should have picked up the phone and had a conversation to resolve any misunderstanding. Training issue

[98]On 7 March 2023, the claimant alleges that the second respondent also blamed her for not addressing an issue raised by a trainer in an email to the shared email inbox sent earlier that day.

[99]We have read the teams messages exchange between the claimant. When asked by the Tribunal, the claimant was unable to identify the wording in this exchange which she considers blameworthy. Objectively, the teams messages communicate a difference of opinion between the claimant and the second respondent on how to interpret the query submitted by the external trainer and subsequently some frustration by the second respondent, who tells the claimant: “…please pay more attention to the emails and requests from our trainers.”

[100]We find the second respondent did not blame the claimant for the issue raised by the external trainer. She was seeking to understand the issue and why it arose. Again, we make the observation that lengthy exchange of messages are not helpful in this situation. The use of the messaging aim seems to fed into an endless messaging cycle which generates frustration when perhaps the parties should have picked up the phone and had a direct conversation to resolve any misunderstanding. Probation

[101]On 10 March 2023 it is agreed that the claimant met with the second respondent. At this meeting, the claimant alleges that: 101.1. the second respondent extended her probation giving baseless reasons for doing so; and 101.2. when she raised concerns about her mental and physical health, the second respondent remained silent and did not suggest any solution to the difficulties caused by the claimant not having a fixed seat nor did she offer any support for the claimant’s mental health.

[102]We have considered the respondent’s letter dated 10 March 2023 setting out the reasons for extending the claimant’s probation. In her skeleton the claimant says the extension was baseless as it related to tasks or training she had not received. The first respondent gave its reasons in its letter; while the claimant may not agree with the reasons stated, taking account of our findings about training (and the claimant’s alleged requests for the same), we found that the decision to extend probation was not baseless. In any event, we make the observation that this was a fixed term contract which was due to end on 12 June 2023 in any event. An extension of the claimant’s probation was not necessary.

[103]The claimant alleges that during the meeting on 10 March 2023 she raised concerns about her mental and physical health, the second respondent remained silent and did not suggest any solution to the difficulties caused by the claimant not having a fixed seat nor did she offer any support for the claimant’s mental health. She does not address this in her witness statement, referring only to how she felt after the meeting (which is not the allegation she brings to the Tribunal). We have seen a copy of an email the claimant sent to Ms Stoney and the second respondent in which the claimant refers to having felt depressed since the probation meeting: “Hi Izabela and Gill, I have been depressed since we had our probation review meeting on 10th March 2023. As a result, I was extremely distressed and unwell. I could not eat, sleep, or return to work.”

[104]For these reasons, we prefer the respondents’ evidence that the claimant did not raise concerns about her mental and physical during the probation meeting.

[105]The claimant’s allegation that the second respondent remained silent and did not suggest any solution to the difficulties caused by the claimant not having a fixed seat nor did she offer any support for the claimant’s mental health is simply not feasible. There is no evidence that the claimant raised these matters at the meeting. The second respondent is not a mind reader. Furthermore, before this Tribunal the claimant has complained that she was required to vacate her usual seat to accommodate a new starter, Grievance

[106]The claimant alleges that the first respondent failed to afford her a fair grievance procedure by: 106.1. failing to give her an opportunity to properly articulate her grievance; 106.2. reaching a decision without a full investigation; and 106.3. failing to share written notes of the formal meetings.

[107]We have considered the notes of this meeting. We find that Mr Keane shuts down the conversation with the claimant by telling her that the facts about which she complains do not constitute a legal complaint of discrimination. In making this finding we are mindful that Mr Keane had limited experience of dealing with such matters and while he was supported by an HR representative at this hearing, he neither sought nor was offered any guidance of dealing with the allegations being made by the claimant. While the claimant did not raise her race or religion as the motivation for the alleged treatment by the claimant, the meeting notes make it evident to us that Mr Keane did not directly address the concerns raised by the claimant.

[108]Essentially the claimant is saying she had been badly treated, however Mr Keane is reluctant to explore what is alleged to have happened and the reasons why in any detail. This approach is also evidence in the emails he sends to the claimant after the meeting. Had Mr Keane been more experienced, or had meaningful HR support, he would have been better able to support the claimant as she sought to articulate her concerns.

[109]As a result of not identifying the concerns at the grievance meeting, the first respondent was unable to carry out a full investigation before reaching its decision. The first respondent did share written notes with the claimant; we have seen emails sending the claimant the notes and her replying disputing the contents.

[110]It is accepted that, on 25 May 2023, the first respondent rejected the claimant’s grievance appeal in which she had raised allegations of discrimination and harassment. We have considered the written record of this hearing. Appeal

[111]The claimant appealed the decision not to uphold her grievance. We have considered the notes of the appeal hearing. At the appeal the claimant was given the opportunity to provide more details of her complaint, and specifically why she considers the behaviour alleged was motivated by her race. This opportunity is recorded in the appeal outcome letter, which states: “In looking at all the evidence it is clear to me that there are considerable communication difficulties with both parties involved in this grievance that needs to be overcome. However, my finding is that these communication difficulties do not constitute mistreatment, bullying or indeed discrimination.

[112]However she did not do so, telling us that she was subsequently unwell. We have seen evidence of a sick note at this time; however, there is no evidence it was sent to the first respondent, or that she told the first respondent she was unwell and would need more time to provide more information about her complaints. In this regard the first respondent cannot be criticised; the claimant was given the opportunity to further explain her concerns and the first respondent was not aware of the reason she did not do so. End of employment

[113]It is accepted that, on 8 June 2023, the first respondent informed the claimant that her fixed term contract would not be extended.

Relevant law

[114]The law which applies to the complaints made by the claimant is set out below. Jurisdiction – time limits

[115]Section 123 of the Equality Act 2010 provides: (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. (2)Proceedings may not be brought in reliance on section 121(1) after the end of— (a)the period of 6 months starting with the date of the act to which the proceedings relate, or (b)such other period as the employment tribunal thinks just and equitable. (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[116]The ACAS early conciliation procedure covers discrimination claims. The primary time-limit is within 3 months of the discriminatory action. If the claim is late, the tribunal has a ‘just and equitable’ discretion under s123(1)(b) to extend time. In Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

, the Court of Appeal held that ‘an act extending over a period’ can comprise a ‘continuing state of affairs’ as opposed to a succession of isolated or unconnected acts. There needs to be some kind of link or connection between the actions.

[117]The case of Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

, notes that the Employment Tribunal may take into account its assessment of the merits of a claim when deciding whether to extend a limitation period on the ‘just and equitable’ basis. She also referred us to Robertson v Bexley Community Centre

[2003] EWCA Civ 576

, submitting that whilst the Tribunal’s discretion to extend time in complaints of discrimination is a wide one, time limits are to be observed strictly and there is no presumption that time will be extended: the exercise of the discretion is still the exception rather than the rule. Section 136 Equality Act 2010: burden of proof in discrimination complaints

[118]Section 136 prescribes two stages to the burden of proof: stage 1 (primary facts) and stage 2 (employer’s explanation). At stage 1, the burden of proof is on the claimant Ayodele v Citylink Ltd & Anor [2017 EWCA Civ 1913. Stage 2 considers the employer’s explanation. We must ask: has the employer proved on the balance of probabilities that the treatment was not for the proscribed reason? In a direct discrimination case, the employer only has to prove that the reason for the treatment was not the forbidden reason. There is no need for the employer to show that they acted fairly or reasonably.

[119]The Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

sets out guidelines on the burden of proof. Therefore, the process a Tribunal must follow is: 119.1. Establish if there are facts from which a Tribunal can determine that an unlawful act of discrimination has taken place; 119.2. If the Tribunal concludes that there are, the burden of proof shifts to the respondent to provide a non-discriminatory explanation for the conduct.

[120]A more recent decision by the EAT has restated the Igen guidance and emphasized its continuing importance: Field v Pye & Co

[2022] EAT 68

and sets of the 2 stages: stage 1 (primary facts) and Stage 2 (employer’s explanation). These are analytical stages rather than stages of the hearing (see Efobi v. Royal Mail Group Ltd

[2021] UKSC 33

: 120.1. At Stage 1, there must be primary facts from which the tribunal could decide – in the absence of any other explanation - that discrimination took place. As it was put in Madarassy v Nomura International Plc

[2007] EWCA Civ 33

, primary facts are sufficient to shift the burden if ‘a reasonable tribunal could properly conclude’ on the balance of probabilities that there was discrimination. At Stage 1, the burden of proof is on the claimant Ayodele v Citylink Ltd & Anor

[2017] EWCA Civ 1913

Royal Mail Group Ltd v Efobi

[2021] UKSC 22

[121]We note the guidance about applying the burden of proof in Efobi v Royal Mail Group Ltd

[2021] IRLR 811

(SC), in particular: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that … the respondent had committed an unlawful act of discrimination” (per Mummery LJ in Madarassy at para.56; endorsed in Efobi at para.46).

[122]The case of Madarassy v Nomura International plc

[2007] EWCA Civ 33

held, inter alia, that a difference in protected characteristic and a difference in treatment is not sufficient to shift the burden of proof to the respondent. The claimant must show “something more” that a difference in protected characteristic and a difference in treatment (the promotion of the former and not the latter) is not sufficient. If the claimant establishes something more, at stage 2 the tribunal must consider the respondent’s explanation. Section 13 Equality Act 2010: direct discrimination

[123]Section 13 Equality Act 2010 provides: (1)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. (2)If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. ……..

[124]Section 13 provides for a comparison by reference to circumstances in a direct discrimination complaint. The Tribunal must consider whether the employee was treated less favourably than they would have been treated if they did not have the protected characteristic. One way of testing whether or not the employer would have treated them better if they did not have the protected characteristic is to imagine a “hypothetical comparator”. There is no actual comparator in this case; therefore, the test of hypothetical comparator is applied. The circumstances of a comparator must be the same as those of the claimant, or not materially different. The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board

[2012] UKSC 37

[125]The important thing to note about comparators (whether actual or hypothetical) is that they are a means to an end. The crucial question in every direct discrimination case is: What is the reason why the claimant was treated as he was? Was it because of the protected characteristic? Or was it wholly for other reasons? It is often simpler to go straight to that question without getting bogged down in debates over who the correct hypothetical comparator should be: Shamoon v Royal Ulster Constabulary

[2003] UKHL 11

[126]We note from the guidance in case of Nagarajan v London Regional Transport

[2000] 1 AC 501

that the Tribunal must consider was the reason for treatment the protected characteristic, considering the mental processes of the alleged discriminator, including any subconscious motivator. We note that the protected characteristic need not be the only reason for the less favourable treatment. It may not even be the main reason. Provided that the decision in question was significantly (that is, more than trivially) influenced by the protected characteristic, the treatment will be because of that characteristic and discrimination would be made out.

[127]Mindful that the claimant is not represented, we explained that direct race discrimination is where a person is treated badly because of their race. The motive in the mind of the person inflicting the bad treatment is that they are doing it because of the claimant’s race. The Tribunal compares how the Claimant was treated to how another person of a different race would have been treated in the same circumstances. Section 26 Equality Act 2010: harassment

[128]Section 26 Equality Act 2010 provides: (1)A person(a) (A) harasses another

(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are—

• age;

• disability;

• gender reassignment;

• race;

• religion or belief;

• sex;

• sexual orientation.

[129]In considering assessing whether alleged conduct is “related” to the relevant protected characteristic on the facts (here race) we are mindful of the guidance in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

(EAT), that there must: “be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be” (per HHJ Auerbach at para.25).

[130]In considering the words “intimidating, hostile, degrading, humiliating or offensive” a Tribunal must be sensitive to the hurt comments may cause but balance so as not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase: Richmond Pharmacology Ltd v. Dhaliwal

[2009] IRLR 336

. Where a claim for harassment is brought on the basis that the unwanted conduct had the effect of creating the relevant adverse environment, section 26 has been interpreted as creating a two-step test for determining whether conduct had such an effect; Pemberton v Inwood

[2018] EWCA Civ 564

. The steps are: 130.1. Did the claimant genuinely perceive the conduct as having that effect? 130.2. In all the circumstances, was that perception reasonable?

[131]The case of Richmond Pharmacology v Dhaliwal

[2009] ICR 724

which sets out the requirements for an assessment of harassment, noting the Tribunal must address and make factual findings on each.

[132]Mindful the claimant is not represented, we explained that harassment is where things are done or said connected in some way to race that create a hostile, unpleasant working environment.

[133]The mere fact that an employee is treated unreasonably does not suffice to justify an inference of unlawful discrimination: Zafar v Glasgow City Council

[1998] ICR 120

). Nevertheless, discrimination may be inferred if there is no explanation for unreasonable treatment. This is not an inference from unreasonable treatment itself but from the absence of any explanation for it. Otherwise, mere proof that an employer has behaved unreasonably or unfairly will not by itself trigger the transfer of the burden of proof to an employer, let alone prove discrimination (see in particular paragraphs 98 to 101 of the Court of Appeal’s judgement in Bahl v The Law Society and others

[2004] IRLR 799

[134]In Chief Constable of Kent Constabulary v Bowler EAT 0214/16, it was held that a Tribunal had impermissibly inferred direct race discrimination solely from evidence of procedural failings in dealing with the claimant’s grievances and appeal against the rejection of those grievances. The EAT said: ‘Merely because a tribunal concludes that an explanation for certain treatment is inadequate, unreasonable or unjustified does not by itself mean the treatment is discriminatory, since it is a sad fact that people often treat others unreasonably irrespective of race, sex or other protected characteristics.” Analysis and conclusion Time limits

[135]The respondents submit that any events about which the claimant complains which are found to have taken place before 23 May 2023 are out of time. Based on the date the claim form was submitted and the dates of early conciliation, applying section 123 of the Equality act, we agree.

[136]The allegations postdate 23 May 2023 and are therefore in time are: 136.1. On 25 May 2023, the First Respondent rejected the Claimant’s grievance appeal in which she had raised allegations of discrimination and harassment. 136.2. On 8 June 2023, the First Respondent informed the Claimant that her fixed term contract would not be extended.

[137]First, we must consider whether there is conduct extending over a period. The claimant submits there is, In deciding whether the complaints constitute continuing acts or whether it is just and equitable to extend time we refer ourselves to the case of Miller and ors v Ministry of Justice and ors and another case EAT 0003/15,, noting that while the discretion to extend time is a wide one there is no presumption that time will be extended unless it cannot be justified and that the exercise of discretion is the exception rather than the rule. What factors are relevant to the exercise of the discretion, and how they should be balanced, are a matter for the Tribunal.

[138]The claimant says the factual allegations amount to conduct extending over a period, telling us “the incidents described in [her] witness statement are linked by the same underlying discriminatory motivation, and collectively amount to a sustained pattern of unfavourable treatment and unwanted conduct related to my race. Each incident flowed from, reinforced, or escalated the last, creating a consistent and hostile working environment throughout my employment. I respectfully ask the Tribunal to consider the entirety of this course of conduct as a single continuing act.” This is the basis of a legal argument and not an explanation as to why the claimant considers the events are linked. Having examined each factual allegation separately, we find they are not. The complaints varied in subject matter; the allegation that they all result from a comment made by the second respondent within moments of meeting the claimant is simply not feasible nor evidenced. Neither is the claimant’s contention that the second respondent’s attitude towards her changed after she had answered this question. The claimant and the second respondent had only just met. It is simply not feasible that a warm, friendly greeting had been established which immediately changed. For these reasons, we conclude that the allegations made by the claimant, several of which we have found did not happen at all or as alleged, were conduct extending over a period.

[139]As we have concluded the allegations do not constitute continuing acts, we must determine whether the claims were made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 139.1. Why were the complaints not made to the Tribunal in time? 139.2. In any event, is it just and equitable in all the circumstances to extend time?

[140]In considering whether it is just and equitable to extend the time limit, we remind ourselves that we must consider the reasons for and length of delay in the claimant commencing proceedings as well as the merits of the claim. We must consider the balance of prejudice to the respondents of this delay, submitting that there is a particular prejudice to the respondent where the claimant’s allegations are not supported by documentary evidence as recollections fade over time. We are mindful that case law on this point allows us to take a wide range of matters into account when determining whether it is just and equitable on the facts to allow a claim to proceed out of time, taking account of all the circumstances of the case and the guidance in Hendricks v Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, CA. In this case, the Court of Appeal made it clear that it is not appropriate for employment tribunals to take too literal an approach to the question of what amounts to ‘continuing acts’. Therefore, we direct ourselves that we must consider whether, on the evidence before us the claimant has a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs. For the following reasons, we find they do not.

[141]The claimant told us that she delayed bring her complaints to the Tribunal as she had a “reliance on and trust in the internal grievance process to resolve her concerns”. This concluded on 25 May 2023, after the cut off date of 23 May 2023. In these circumstances we consider it just and equitable to extend time and allow the claims to proceed. In reaching this conclusion, we have taken account of any prejudice to the respondent. Many of the allegations are founded in written communications, in particular teams messaging, rota documents and records of meetings. The documents are available for the Tribunal to consider. At the hearing parties had the opportunity to explain their recollections by reference to contemporaneous written records. Therefore, we conclude there is no practical and evidential prejudice to the respondent of the Tribunal exercising its discretion to extend time and determine the complaints.

[142]We have also considered the potential merits of the claims (from a high level before applying the legal tests under the Equality Act 2010). The claimant has put forward an explanation as to why she considers the alleged conduct was motivated by her race / religion. She relies on one incident at the start of her employment where she says the second respondent made enquiries about where she was from. The second respondent accepts that she made this enquiry, but her evidence is that it was misinterpreted by the claimant and is in no way related to any subsequent events. Given the commonality that an enquiry was made, we consider the merits of the claim and defence neutral and requiring assessment as to the nature of the enquiry and whether the claimant has discharged her burden to evidence that this comment was related to her race and motivated all subsequent events.

[143]For these reasons, we conclude that it is just and fair to extend time and apply the legal tests of race / religious discrimination to the events we have found occurred as alleged by the claimant. Discrimination

[144]Next we consider whether the actions of the respondent satisfy the legal tests for harassment related to race /religion and direct discrimination relation to race. In doing so, we remind ourselves that initially it is the claimant who has the burden to prove that events happened as they allege (Ayodele v Citylink Ltd & Anor [2017 EWCA Civ 1913) and is related to race / religion (and therefore unlawful discrimination has taken place. If the claimant does so, we must turn our attention to any explanation put forward by the respondent for the behaviour. It follows that, if we have found that the alleged events did not happen at all, or in the manner alleged by the claimant, then they cannot amount to acts of discrimination.

[145]We note that, in a claim of race discrimination, the burden of proof is on the claimant to show Ayodele v Citylink Ltd & Anor

[2017] EWCA Civ 1913

. Mindful the claimant was not represented, and of our duty pursuant to rule 3(1)(a) of the Employment Tribunal Procedure Rules 2024 to ensure parties on an equal footing, we explained this to at the start of the hearing. We repeated our guidance during the hearing noting that, when asked why she considered the alleged conduct related to her race, the only claimant fact the claimant relied on was the question about where she was from on 13 September 2022. We also explained that only if the claimant is able to identify something more than the existence of her race and the respondent’s conduct do we consider the respondent’s explanation. Factual allegations which did not happen as alleged by the claimant or at all

[146]We have found that the following factual events did not take place at all or as alleged by the claimant: 146.1. The allegation that the claimant’s requests for training and learning opportunities were ignored. We have found that the requests the claimant relies on in evidence are essentially requests for more work, to which the second respondent replied. 146.2. It is accepted that the second respondent asked the claimant where she was from on 13 September 2022 and that from then to February 2023 the claimant sat in row 6, which is on the last row. We have found that employees generally sat at the same desk, with managers on the front row and the resources team on the second notwithstanding the hot desk policy. For this reason the vacant desks were on the last row. The claimant navigate to the same desk (6) and subsequently referred to it as her desk. She took offence at being asked to vacate so a new starter could sit there which undermines her allegation that she was offended by the request to sit there. There is no evidence the seating arrangements were related to the claimant’s race; they accord with human nature clashing with hot desk policy, reflected in the claimant’s own decisions about where to sit. 146.3. The claimant’s requests on 6 October 2022, 18 October 2022, 19 October 2022were either not requests for training and learning (they were requests for more work) and/or were not ignored. Mr Miah did not receive more training opportunities. Training is fluid; given the timing of his appointment he was invited to a team day; this was not something the claimant attended at the start of her employment because a team day was not scheduled at that time. Indeed, the first team day took place in December 2022. 146.4. We have found that the claimant’s did not make a request for SAP; the reality is that there was a meeting of minds that the training was necessary but a combination of a trainer being on sick leave and poor management resulted in the refresher training not happening. 146.5. The claimant did not ask for guidance with the health and safety in box, as alleged, hence there was no failing on the part of the second respondent. Furthermore, we have found the second respondent did not tell the claimant she had done a task involving the health and safety inbox wrong on 7 March 2023, nor did she question the claimant’s ability in this regard. 146.6. We have found that the second respondent did not blame the claimant for the issue raised by an external trainer on 7 March 2023. The claimant could not identify to use the wording she alleged was blameworthy. Mindful that the claimant is not represented, taking her case at its highest, we reviewed the entirety of the teams messages exchanged between the claimant and the second respondent that day and found that, while on occasion the second respondent expressed some frustration in her messaging, she did not blame the claimant for the issue raised. 146.7. The claimant did not raise concerns about her mental health in 10 March 2023. On 14 March 2023 she told the respondents that her mental health had suffered as a result of her probation being extended.

[147]As they did not happen either at all or as alleged, we do not need to consider whether they constitute race or religious discrimination.

[148]In assessing events that did happen which the claimant alleges were motivated by her race or religion, in determining whether the events were related to the claimant’s race or religion we remind ourselves of the guidance about applying the burden of proof in Efobi v Royal Mail Group Ltd

[2021] IRLR 811

(SC), in particular that: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that … the respondent had committed an unlawful act of discrimination” (per Mummery LJ in Madarassy at para.56; endorsed in Efobi at para.46).

[149]The case of Madarassy v Nomura International plc

[2007] EWCA Civ 33

[150]The claimant relies on the second respondent’s repeated (she says) asking where the claimant is from as the something more than a difference in race and treatment; the claimant’s case is that the second respondent treated her well until the second respondent “found [the claimant’s] race. The claimant says that when the second respondent first met her on 13 September 2022 she was friendly but when the first respondent subsequently asked her (at that first meeting on 13 September) where she was from and she answered, the first respondent’s attitude changed. It is agreed that the claimant and the second respondent met for the first time on 13 September 2022 the second respondent asked her where she is from. The first respondent denies this, telling us that the first respondent’s offices are multicultural, she herself being from Poland, and she was making a genuine and friendly enquiry as the office regularly celebrates all cultures and religious festivals.

[151]We have found that the claimant made an enquiry in 13 September 2022, but did not repeat it subsequently, the claimant having told her that as a result of her answers on 13 September 2022 she knew she was Indian and Hindu. There is no 3rd party witness evidence as to the tone and nature of the enquiry. There is evidence that religious festivals were recognised in the first respondent’s office, including Diwali. There is also evidence that the claimant and second respondent subsequently engaged in friendly messaging including the use of friendly, smiley and winky emoji by both parties, as well as tense exchanges.

[152]In assessing whether an enquiry about where the claimant came from is discriminatory, we remind ourselves that the EAT guides us that not every racially slanted adverse comment would constitute the violation of a person's dignity. While it is very important that employers and tribunals are sensitive to the hurt that could be caused by racially offensive comments or conduct, it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. In this case the enquiry is not overtly racist; it is an enquiry about where someone is from. The claimant did not raise any concerns about the comment at the time or in her grievance or appeal or at any time during her employment. She engaged in a friendly way with the first respondent in numerous and lengthy messages and shared photographs of her daughter. Other than the comment itself, the claimant has not produced any explanation or evidence that the comment was not well meaning or that her answer to it motivated the second respondent’s interactions with her. Given this lack of explanation or evidence, we conclude that the second respondent’s comment was well meaning, was accepted by the claimant at the time as a genuine enquiry and subsequently the narrative was changed by the claimant when the interactions with her line manager became difficult. As with the case of Richmond Pharmacology Ltd v Dhaliwal, 41 EAT, we conclude that it should have been clear that any offence as a result of this question (which was not expressed at the time or during the claimant’s employment) was unintended.

[153]Section 212(1)(5) prevents a claimant succeeding on both harassment and discrimination for the same alleged act/omission. For this reason we consider the complaint of harassment first. Harassment: section 26 Equality Act 2010:

[154]Section 26 Equality Act 2010 provides that 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. It is for the claimant to explain how any unwanted conduct relates to her race (Indian) / religion (Hindu).

[155]In assessing whether alleged conduct is “related” to the relevant protected chatacteristic on the facts we direct ourselves to the guidance in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

[156]We have found that on 12 September 2022, the second Respondent did not carry out an induction for the claimant as she was on holiday. Instead the second respondent’s manager carried out the induction processes on 12 September and the second respondent first met the claimant the following day. We conclude that there is nothing unwanted about another manager stepping in on an employee’s first day to conduct the initial induction because the direct line manager is on holiday. Furthermore, as a matter of chronology, this cannot be related the claimant’s race as the comment the claimant relies on as the “something more” was not made, by the claimant’s own case, to the following day. Second respondent’s enquiries

[157]The second respondent accepts that she said to the claimant “I did not interview you”, “I have never seen your CV” and asked her “have you ever worked before as admin or in an office”. The second respondent did not say “I did not choose you”, as alleged by the claimant. There is no unwanted conduct; the comments by the second respondent were factually correct. In this claim the claimant has changed what was said to create a narrative which did not happen. There is no unwanted conduct; therefore we do not need to consider whether it was related to race, but in any event, the claimant has not explained why she considers the second respondent’s knowledge that she was Indian and Hindu related to these questions. It was not.

[158]We have found that, on 6 January 2023, the second respondent asked the claimant about her experience of working in an office and whether she had worked in administration before. We have found that this was in the context of the claimant (by her own admission) not knowing how to drag and drop emails, that is to move emails from the inbox folder to subject folders. This is not unwanted conduct; it was an enquiry to establish the extent of the claimant’s office administrative experience. As there is no unwanted conduct, we do not need to consider whether it was related to race. In any event, the claimant has not explained why knowledge of her race and religion on the 13 September is linked to these enquiries. It was not; the evidence before us supports our conclusion that the enquiry was made as the claimant had told the second respondent that she did not know how to do the (objectively) simple administrative task of dragging and dropping emails to file them in a folder. Working from home requests

[159]We have found that there were occasions when the claimant was timetabled more than 2 days in the office. On 2 occasions this was in October 2022, at the start of her employment, which we have found to be reasonable. On another occasion when she is required to come in to the office on the Friday morning for a meeting; again this is a reasonable request for an employer to make and in line with the first respondent’s policy. We have found 19 December 2022 communications from the claimant are not requests; she is telling her manager that she will work from home because she is unwell. If that was the case, the claimant should have taken a day of sick leave. We have found the second respondent’s reply justified given the communications from the claimant. The fact that the claimant is not happy with the response, or that she has interpreted the policy differently (and in our assessment incorrectly as she failed in her assessment to the Tribunal to take account of the full wording of the policy) does not mean the second respondent’s behaviour was unreasonable. It was not. There is no unwanted conduct.

[160]On 16 February 2023, upon the claimant’s return from annual leave, the second respondent did rota the claimant to work in the office for the remaining two days. On 17 February 2023, the second respondent rotaed the claimant as working office days for three days the following week. While this is more than the expectation set by Ms Stoney in the interview, it does not breach the first respondent’s policy, which entitled the respondents to rota the claimant in this way. This was not a home based position and it was not for the claimant to mandate when she would and would not come into the office based on her personal circumstances at a point in time. Furthermore, the second respondent did not interview the claimant and there is no evidence before us that it was communicated to her by Ms Stoney that something out of policy had been agreed. We find it was not. There is no unwanted conduct. In any event the claimant has not explained how these decisions link to the 13 September enquiry. The decision was not related to race but to business need as defined by the first respondent’s policy. Permanent position

[161]We have found that a conversation took place between the claimant and the second respondent around January 2023 in which they discussed recruitment for the permanent role overseen by Miss Stoney. We have found, the claimant was told she did not need to apply for the permanent role as it was likely her fixed term contract would be extended given how busy the qualifications department was at that time. This is not unwanted conduct. By her own admission, at this time the claimant was keen to have a permanent role. The reasons she was told she did not need to apply for the permanent position was the first respondent’s view the fixed contract would become permanent. The reason this did not materialise was concerns with the claimant’s ability to carry out administrative tasks such as filing emails, which was integral to the role.

[162]It is curious that the first respondent elected to extend the claimant’s probation given she was on a 9 month fixed term contract, with no obligation to renew this. Rather than extending probation, given the respondent’s concerns with the claimant’s administrative skills, the respondent could simply have allowed the contract to run its course. Neither party gained anything from the probation being extended. Colleagues

[163]We have found that the second respondent made a conscious decision not to invite the claimant to call her Izzy or introduce her family to the claimant on 9 February 2023. Indeed, the second respondent’s recollections of who she allowed to call her Izzy were inaccurate. We have found that the documents evidence that several people she told us did not call her Izzy in fact did so in written correspondence. For the reasons stated we have also found her explanation for who she introduced to her family simply not credible. Such behaviour is unprofessional; it was spiteful to exclude the claimant in this way in front of her colleagues. For this reason we find the second respondent engaged in unwanted conduct towards the claimant by singling her out and excluding her in this way.

[164]In reaching this conclusion, we remind ourselves that the mere fact that an employee is treated unreasonably does not suffice to justify an inference of unlawful discrimination: Zafar v Glasgow City Council

[1998] ICR 120

[2004] IRLR 799

). Applying this guidance, we consider the behaviour unwanted. However, the claimant has not explained why she considers this behaviour was related to her race.

[165]In assessing whether this behaviour related to the claimant’s race, we are mindful the “something more” on which the claimant relies was 5 months earlier and in the meantime parties had engaged in numerous friendly messages, with the claimant sharing photos of her daughter. It is simply not credible that the conversation on 13 September 2022 motivated this unprofessional and spiteful behaviour. 121 / development plan

[166]We have found that the claimant had her first 1-2-1 on 21 October 2022, when she received a development plan which was not revised during her employment. We have found this was not triggered by the claimant making a complaint as she alleges; there was no complaint. We have also found there is no evidence the development plan was deliberately withheld. However, we agree with the conclusion of Mr Keane in the internal investigation that the second claimant should have engaged in better recording of her discussions with the claimant. The teams messages evidence lengthy interactions, but it is unclear as to exactly when and the form of meetings. As such, given the paucity of evidence we are unable to determine whether and when meetings took place.

[167]That said, the lack of clarity and regularity of 1-2-1 meetings and updating of a development plan in a short fixed term contract is evidence of poor line management, not unwanted conduct. Furthermore, there is no evidence this lack of oversight by the claimant’s line manager was related to her race or religion. Indeed the only 1-2-1 parties agree on took place after this comment was made. If we are to follow the claimant’s case that the 13 September enquiry motivated discriminatory behaviour, it cannot follow that a 1-2-1 took place shortly thereafter but then the second respondent subsequently did not engage again. Leave cover

[168]We have found that cover was not arranged for the claimant’s October 2022 leave as, given the size of the team, the second respondent would pick up any of the claimant’s outstanding tasks. This is not unwanted conduct; though somewhat begrudging, as evidence by the comment on the action planner, the outstanding task was covered by the line manager. There is no unwanted conduct; it may not have been the claimant’s choice that the first respondent pick up any tasks in her absence but that was the manager’s decision not hers. In any event, for reasons already stated the claimant has not explained the link between this decision and the enquiry on 13 September. Action tracker

[169]We have found that a task that was not recorded before the claimant’s leave was added during her leave and actioned by the second respondent; the tracker incorrectly recorded this task as not actioned. It could not have been actioned by the claimant during her leave as she was not aware of it. The second respondent sought to establish the status of this task. This is unwanted conduct; the tracker suggests that the claimant did not carry out her tasks as assigned. It does not acknowledge that she was not aware of the task as the first respondent added it retrospectively. In this regard the second respondent’s comment on the tracker is unfair and unnecessary. However, it is not the case the second respondent blamed the claimant for not doing the task, that is not what the contemporaneous teams exchange says.

[170]The claimant has also alleged that on 3 January 2023, on her return to work, the second respondent marked work the claimant had completed as incomplete and added unpleasant comments. We have considered the tracker; for this period; there are 2 items marked as incomplete (ISS MH Eng and course registration). We have considered comments added “ With the ISS MH Eng the claimant has added a comment that the task was completed out of hours. It is not clear that the registration was completed from the comments we can see on the tracker. The claimant alleges the second respondent’s comments on the tracker are unpleasant. However, in oral evidence she could not identify any comments on the tracker she considered unpleasant, telling us that on 3 January they were both working in the office and the second respondent commented about her lack of knowledge. This is different to the claimant’s allegation. There is no unpleasant comment on the tracker and no unwanted conduct. Team day

[171]We have found that, in the context of train travel disruption and the claimant’s personal circumstances (not wanting to travel on the motorway / needing to be back to take her parents to the airport and therefore, understandably, not wanting to risk the disrupted train service) an initial friendly chat about arrangements becomes frustrated due to respective positions. This is not unwanted conduct; no accusation is made by the second respondent that the claimant is a hurdle. The frustration on both sides arises from the claimant being accommodating by being willing to travel to Reading for the team day, a train strike for which neither is responsible and then the claimant’s personal objection to driving on a motorway when the second respondent suggests she drives to the team day as there are no trains. In the event, the second respondent gave the claimant a lift in very difficult weather conditions. That she would do so when she took issue with the claimant’s race and religion is simply not feasible. Furthermore, after more tension, she did agree to drive the claimant’s daughter, going beyond the remit of an employer’s obligation to its employees.

[172]While we have found that the claimant felt pressure to attend the team having been told it was mandatory we have also found she was not forced to attend and was free to choose not to go. For this reason there is no unwanted conduct. If she was concerned about the weather she had the choice not to go and, in the circumstances, it would have been a reasonable choice.

[173]We have found that if the claimant was embarrassed by the exchange outside her house on 13 December 2022, it was not the second respondent’s intention to embarrass her. The claimant had brought her personal circumstances to the second respondent but ultimately these are not the employer’s issue or concerns. Feelings were heightened for everyone due to the weather situation and the matter resolved itself in any event with the second respondent dropping the claimant’s daughter at the bus stop so she did not have to walk there in heavy snow. There is no unwanted conduct and no evidence or explanation as to how this incidence played out was motivated by the exchange the previous September.

[174]We have found that the second respondent started the team day 30 minutes early thereby excluding the claimant while knowing she would not be long on the call with the GP. We have found her behaviour unnecessary and unprofessional. It was unwanted. However, the claimant has not explained and we cannot link this behaviour to the September enquiry. Indeed, it is evident from both parties accounts of that morning that both parties were upset and frustrated (the claimant about the weather and worried for her daughter; the first respondent about the weather and being late for a team day she was hosting and at which her now husband was presenting and being delayed taking the claimant’s daughter to the bus stop. Learning plan

[175]We have found that on 13 December 2022, the second respondent announced a training and learning plan which allowed for every member of the team to train others but which excluded the claimant from receiving any learning from her colleagues. This is unwanted conduct without adequate explanation. However, there is no evidence before us which explains why this decision was motivated by the September enquiry. We conclude it was a decision made in the context of the frustrations of the team day and not motivated by the claimant’s race or religion.

[176]We have found that, on 3 January 2023, the claimant did not request guidance on accessing the Health and Safety shared inbox; she provided an update to her line manager as evidenced by what she writes in the email. As the documentary evidence does not accord with the claimant’s allegation, there is no unwanted conduct.

[177]On 10 March 2023, the second respondent did extend the claimant’s probation giving reasons in its letter, some of which the Tribunal has found are supported by previous correspondence, for example the claimant being unable to carry out certain administrative tasks. However, there is no evidence this was linked to the claimant’s race or the enquiry 6 months earlier. The respondent seems to have adopted a misguided approach to its policy on probation for someone on a fixed term contract.

[178]We have found the first respondent did fail to afford the claimant a fair grievance procedure by failing to give her an opportunity to properly articulate her grievance, reaching a decision without a full investigation. However, the respondent did share written notes of the formal meetings. Indeed the appeal process identified that the grievance was lacking in giving the claimant an opportunity to fully articulate her concerns. In this regard we consider the conduct of the grievance unwanted. However, there is no evidence that Mr Keane’s conduct of the grievance was motivated by the claimant’s race or religion. He was not present at the September conversation and the claimant as not provided any explanation as to why she says the conduct of the grievance was due to her race or religion. The evidence before us is that it was lacking due to Mr Keane’s inexperience and lack of substantive HR input leading to the first respondent rejecting the grievance on 25 May 2023.

[179]Taking account of the totality of the evidence before the Tribunal, and the lengthy email and teams message exchanges between the claimant and the first respondent throughout the claimant’s employment, we agree that the crux of the issues between them centred on a lack of clarity by both parties in their communications with the others, with the claimant in particular interpreting the written word in a manner that did not reflect what was written, and presenting her written communications to the Tribunal in a manner which did not reflect the words she had actually used. It is our observation that, rather than engage in extensive messaging exchanges, where tone and intent are often open to misinterpretation, both would have benefited from picking up the phone.

[180]We have found that the appeal sought to rectify the deficiencies in the grievance process by affording the claimant the opportunity to articulate why she considered the alleged actions of the second respondent discriminatory and related to her race or religion. She did not take up this opportunity nor ask for an extension for the period she was unable to do so due to ill health.

[181]Overall, in all circumstance, we conclude that manner the grievance and appeal were addressed were in no way related to or motivated by the claimant’s race or religion. Neither the grievance officer or appeal officer were present at the September exchange.

[182]On 8 June 2023, the first respondent informed the claimant that her fixed term contract would not be extended. This was a fixed term contract from the outset; it’s termination was not unwanted conduct. In any event, the claimant has not linked this decision to the September conversation.

[183]In making our findings and assessing whether the facts we have found occurred as alleged we have concluded that the claimant has not established that the behaviour was related to her race or religion. While a complaint of direct discrimination considers a comparator as a point of reference to consider whether the employee was treated less favourably than they would have been treated if they did not have the protected characteristic we remind ourselves that the important thing to note about comparators (whether actual or hypothetical) is that they are a means to an end. The crucial question in every direct discrimination case is: what is the reason why the claimant was treated as he was? Was it because of the protected characteristic? Or was it wholly for other reasons? It is often simpler to go straight to that question without getting bogged down in debates over who the correct hypothetical comparator should be: Shamoon v Royal Ulster Constabulary

[2003] UKHL 11

[184]In our judgment, given our factual findings and conclusions applying the legal tests for harassment, this is a case where it is appropriate to go straight to the questions what is the reason why the claimant was treated as he was? Was it because of the protected characteristic? Or was it wholly for other reasons? Here, our conclusions about whether any conduct we have found happened as alleged are related to the claimant’s race or religion. For the reasons stated above, we have concluded that the claimant has not discharged the burden to show that her race and/or religion were a factor in the second respondent’s behaviour towards her. We have concluded that the behaviour was for wholly other reasons. Therefore, the complaint of direct discrimination fails applying the legal tests established in the case of Shamoon v Royal Ulster Constabulary

[2003] UKHL 11

[185]In reaching this conclusion we are satisfied that the mental processes of the second respondent at the time of the claimant’s employment were motivated by the claimant’s need to continuous oversight (evidence by the number and frequency of queries raised by the claimant) and, on occasion, frustrations generated by external factors, as we have found the case to be on the team day. That the second respondent was often not an effective line manager in terms of communication and oversight does not mean that she was motivated by race or religion. The evidence before us is that this was not a factor in her management of the claimant.

[186]For these reasons, it is the unanimous decision of this Employment Tribunal that: 186.1. The complaint of direct race discrimination is not well founded and is dismissed. 186.2. The complaint of harassment related to race is not well founded and is dismissed. APPROVED BY:

Relevant law

[1]The Tribunal reserved judgment at the hearing on 6 June 2025, following a multi-day final hearing to determine liability in May and June 2025, during which the Tribunal panel heard evidence and closing statements over 7 days. Due to the number of factual allegations made by the claimant, the Tribunal panel deliberated for 3 days on 12 June 2025, 26 and 27 August 2025 and met again on 16 September 2025 to check and finalise the written decision. During this time the decisions about the factual issues in dispute were made having comprehensively reviewed the extensive documentary evidence (including lengthy opening written submissions, witness statement and closing written submissions document from the claimant) and our record of the oral evidence. Having made our findings of fact from the evidence before us at the hearing, for the factual allegations we found to have happened as alleged, we applied the relevant legal tests to reach our conclusion that the claimant was not discriminated against because of her religion or race. For the factual allegations we found did not happen as alleged, we explained why we had not accepted the claimant’s recollection of events. In our findings of fact and conclusions the panel’s agreement was unanimous. A judgment with written reasons was sent to the parties on 24 September 2025 (“the Judgment”). A record of the hearing is summarised in that Judgment.

[2]Rule 68 of Employment Tribunal Procedure Rules 2024 empowers the Tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so. An Employment Judge may determine an application on their own and without a hearing if they consider that there is no reasonable prospect of the original decision being varied or revoked.

[3]By email and accompanying document dated 7 October 2025 the claimant applied for reconsideration of the Judgment. The claimant copied this email to the respondent’s representative. At the time of this reconsideration no response had been received by Employment Judge Hutchings from the respondent to the claimant’s reconsideration request. Mindful that a respondent is not required to submit a response and of rule 3 of the Employment Tribunal Procedure Rules 2024 and the overriding objective that Tribunals must avoid delay, the application for reconsideration was considered by Employment Judge Hutchings on 10 October 2025.

[4]An application for reconsideration is considered by a judge sitting alone and not by the Tribunal panel. Given that the panel were unanimous is all findings of fact and their application of the legal tests I consider it appropriate and in compliance with the Employment Tribunal Procedure Rules 2024 for me to do so at this time.

[5]Rule 69 requires that any application for reconsideration must be presented in writing within 14 days of the date on which the written record, or other written communication, of the original decision is sent to the parties. The Judgment was sent to the parties on 24 September 2025 and, accordingly, the claimant’s application (7 October 2025) has been made in time.

[6]When considering the application, I had before me a copy of the Judgment, hearing file and witness statements, all written documents submitted by parties during the hearing, as well as the Tribunal panel’s notes of the hearing and the record of oral evidence.

[7]I am satisfied that the interests of justice do not require that there is a hearing to determine the claimant’s application for reconsideration as the claimant’s written submissions are comprehensive and clearly structured and articulated and that I can deal with these matters fairly and justly on the strength of what is a detailed written application. The reconsideration application

[8]Turning then to the application for reconsideration. The starting point has to be the decision the Tribunal reached after the liability hearing. The Tribunal then spent the entirety of 4 days in deliberation and finalising the Judgment. The decision of the Tribunal was unanimous on all points. We provided detailed written reasons for our decision amounting to 186 paragraphs. Should these matters be examined on appeal, it would be for the Employment Appeal Tribunal or other appellate court to say whether those reasons and our decision can stand. Any suggestion that we erred in law is generally a matter for appeal and not reconsideration: Ebury Partners UK Ltd v Acton Davis

[2023] EAT 40

[9]Although it is not expressly stated that the claimant relies on an error of law point, mindful she is not legally represented, and taking her application at its highest, the references at paragraphs 19-21 and 27 – 31 may be interpreted as an oblique suggestion in relation to the application by the Tribunal the tests linking the facts as we have found them to race / religion. Paragraphs 154 – 185 of the Judgment details the panel’s analysis as to why to have concluded, in summary, that the behaviour was not motivated by the claimant’s race. That the claimant does not agree with how we have applied our findings to the legal tests, and that she disputes our conclusions, is not a matter for reconsideration.

[10]In Outasight VB Ltd. v Brown UK

EAT/0253/14

, the Employment Appeal Tribunal considered the Tribunals’ powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013. At paragraphs 27 – 38 of her Judgment Her Honour Judge Eady QC, as she then was, set out the legal principles which govern reconsideration applications, and observed, “The interests of justice have thus long allowed for broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.” These principles were affirmed by His Honour Judge Shanks in Ebury Partners.

[11]Similarly, should the Judgment be examined on appeal, it will be for the Employment Appeal Tribunal or other appellate court to say whether the Tribunal’s findings, analysis and conclusions (“the Reasons”) and the resulting Judgment can stand. Any suggestion that our findings or conclusions were perverse is generally a matter for appeal rather than reconsideration.

[12]In Outasight, the Employment Appeal Tribunal was referred to the EAT’s Judgment in Redding v EMI Leisure Ltd.

EAT/262/81

in which the EAT had observed: “…When you boil down what is said on [the Claimant’s] behalf, it really comes to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice” means justice to both parties. It is not said, and, as we see, cannot be said that any conduct of the case by the employers here caused [the Claimant] not to do herself justice. It was, we are afraid, her own experience in the situation…”

[13]The claimant does not say in her application for reconsideration that she feels she did not do herself justice at the hearing, but if it is the case then it is not for want of being afforded a reasonable opportunity to state her position given the length of the written documentation the claimant provided (and specifically the detailed explanation she provided in her written open skeleton argument document, witness statement and closing written submission documents) the hearing. Throughout the hearing the claimant was afforded, and sought the assistance afforded of the Tribunal, mindful of our obligations under rule 3 of the Employment Tribunal Procedure Rules 2024 in light of the fact she was not legally represented and the requirement for us to ensure that parties are on an equal footing. We did so, as is recorded in the record of proceedings in the Judgment.

[14]The overall impression given by the application is that the claimant is dissatisfied with the Tribunal’s decision and the factual findings we have made. In particular she is dissatisfied with our unanimous findings of fact, and is seeking a ‘second bite of the cherry’. Indeed, the claimant seeks that we reexamine the evidence about the respondent’s approach to her grievance (paragraphs 4 – 6), appeal (paragraphs 7 – 10) and a document the claimant photographed (paragraphs 11 – 18), including references facts that were either not before the Tribunal at the hearing or to which we were not referred by the parties. At the start of the hearing, we made it clear to parties that given the amount of documentation, if a party considered a document of particular relevance to their position, it was important for that party to refer the Tribunal to the document in the hearing file.

[15]We have made comprehensive and reasoned findings on all these events in the written judgment and our conclusions which apply the legal test for the complaints the claimant brings are based directly on our findings (grievance - paragraphs 106 – 110 of the Judgment; appeal – paragraphs 111 and 112 of the Judgment; document – paragraph 21 of the Judgment). That the claimant does not agree with our findings and conclusions which are based on the evidence before us at the hearing is not a matter for reconsideration. Nor can a Tribunal as part of a reconsideration consider evidence to which it was not referred at the hearing.

[16]Furthermore, the claimant is misconceived in thinking that the Tribunal can revisit the grievance process and outcome. As a matter of law, it cannot; if the Tribunal were to fully adjudicate the incidents the claimant raises in her grievance the Tribunal would be making an error in law. The power of the Tribunal is restricted to considering whether the investigation at the time and the decision reached were well reasoned and whether they were discriminatory. It matters not what the Tribunal or the claimant would have concluded with the same information. For the reasons stated we concluded the grievance and appeal were not discriminatory.

[17]The claimant’s interests are not the only consideration here. Justice has to be done to both parties and there are broader policy considerations including the need for finality in litigation. Litigation has to be kept within sensible bounds. The claimant was afforded a reasonable opportunity to give written and oral evidence and make representatives in a closing statement about her complaints. She did so comprehensively; her witness statement was extremely lengthy and she gave evidence over 2 days. Her opening and closing statements are written and lengthy.

[18]The challenges made by the claimant in the request for reconsideration seek to re-assert the case she made at the hearing, including references to evidence that was not before the Tribunal at the hearing, where the Tribunal has not accepted the her version of events. The Tribunal has provided a reasoned explanation in its written reasons as to why the Tribunal has not accepted what the claimant alleged happened at all or her interpretation of the respondent’s behaviour towards him. That the claimant does not agree with the Tribunals findings of fact or assessment of credibility (as asserted at paragraphs 22 – 26 of the application) is not a reason for a Tribunal to reconsider its decision. To do so would allow the claimant a second attempt to put her case when she has done so comprehensively orally and in writing at the final hearing, and the panel has taken account, on balance of probabilities, of the evidence to which we were referred at that hearing.

[19]In my judgment, it is not necessary in the interests of justice that the claimant should be afforded an opportunity to revisit the evidence; the fact the Tribunal disagreed with the claimant’s version of events is not a ground for reconsideration.

[20]Accordingly, in my judgement, the claimant has no reasonable prospect of persuading the Tribunal that it is necessary in the interests of justice for them to be afforded a second opportunity to put her case.

[21]For these reasons, the claimant’s application for reconsideration of the Judgment has no reasonable prospect of success and is refused. APPROVED BY: