[1]The matter before me on this Public Preliminary Hearing is to make a decision as to whether or not Ms Nakra was a disabled person as defined in the Equality Act 2010 at the material time, which is during her employment with the Respondents between 28 June and 27 July 2022.[2]I was provided with a Bundle for today’s Hearing by the Respondent’s Advisors and I am grateful to them for that. Within the Hearing Bundle was an Impact Statement prepared by Ms Nakra, this was pursuant to an Order by Employment Judge Ord on 5 February 2023 in this Region’s standard terms.[3]It is an unfortunate feature of this morning that Ms Nakra’s Impact Statement, while providing some useful information, did not quite match that which was called for by EJ Ord’s directions. Not an unusual feature when one is dealing with litigants in person who are unrepresented.[4]The disability relied upon is the impairments resulting from Ms Nakra’s anxiety and depression. I took her to her Impact Statement and asked her some follow up questions, before submitting her to cross examination from Mr Johnson. She gave some more information. It is fair to say that if she had provided that information from the outset, we might not have been here today and the Respondent may well have conceded the issue of disability. The same applies to a couple of additional pages from her Medical Records, which she had mistakenly not attached to an email she had previously sent to the Respondent and which was not in the Bundle. She emailed that to us during the course of the Hearing so that Mr Johnson and I could take a look at them.
Relevant Law
[5]For the purposes of the Equality Act 2010 (EqA) a person is said, at section 6, to have a disability if they meet the following definition: “A person (P) has a disability if –(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.[6]The burden of proof lies with the Claimant to prove that he is a disabled person in accordance with that definition.[7]The expression ‘substantial’ is defined at Section 212 as, ‘more than minor or trivial’.[8]Further assistance is provided at Schedule 1, which explains at paragraph 2: “(1) The effect of an impairment is long-term if –(a) it has lasted for at least 12 months,(b) it is likely to last for least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.[9]As to the effect of medical treatment, paragraph 5 provides: “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if –(a) measures are being taken to treat or correct it, and(b) but for that, it would be likely to have that effect. (2) ‘Measures’ includes, in particular medical treatment …”
Findings of Fact
[10]My findings are that Ms Nakra has suffered from anxiety and depression since 2019. She had a breakdown in 2019 and was unable to work for a period of between 18 months and 2 years. She described the situation as, “not having a life”. She said she spent most of her time in bed or on the sofa, eating junk food. She was not able to cook; either her daughter or her friends cooked for her. She was unable to do housework; she described her house as disgusting. She said that friends would come and clean for her and get shopping for her, as she was unable to go out shopping. She said she could not dress herself properly, she could not shower and she could not brush her teeth. I accept that evidence[11]Ms Nakra came out of that 2019 breakdown in 2021 and in September or August 2021, was able to go back to work, but in November 2021 she had another breakdown and had to leave that job. She said the effects that time were not quite as bad, but that she was still struggling with motivation, suffering from panic attacks, she was very tearful, she would breakdown, she suffered from sweating and sometimes would cry inconsolably for long periods of time. I accept that evidence.[12]Ms Nakra got back to work in about December 2021, but had another relapse in May 2022. She could not do anything, she could not sleep and she could not go out. She went back to her Doctor who referred her to the Mental Health Nurse for referral onwards for CBT and she was given an increased dose of Fluoxetine.[13]In terms of medication during these periods, following the 2019 episode she was on 10mg of Citalopram, gradually rising to 40mg during that period. After the relapse in November 2021, she was on Fluoxetine 20mg. While she was working for the Respondent she was on Fluoxetine and Beta Blockers. On 21 June 2022, we saw in one of the new documents that she sent us, that she was given an increased dose of Fluoxetine on 21 June 2022, when she was working for the Respondent.[14]On 8 June 2022, we could see from the Doctor’s Records that she visited the Doctor and complained of being tearful and anxious and being given an increased dosage of Fluoxetine. The symptoms were described as, “some pain, menopausal, ongoing anxiety, frequent flare ups, insomnia, working in HR, anxiety attacks and PTSD like symptoms”.[15]At paragraph 5 of her Witness Statement, Ms Nakra explained the condition that she was in whilst she was in employment with the Respondent, basically being very tired, not able to do anything in the evenings, not able to do her studying for her CIPD Level 5 and not being able to tidy up her room. I accept that evidence.[16]At paragraph 9 of her Witness Statement, Ms Nakra set out ongoing issues along the lines of those already described. The statement is written in the present tense, but she confirmed and I accepted those were conditions or impairments that she found herself struggling with throughout the time that we are talking about from 2019 onwards, during relapses.[17]There was one significant challenge to the credibility of Ms Nakra’s evidence which is that Mr Johnson put to her that her references to not being able to go out were inconsistent with what she was saying to the Respondents during her employment, to her work colleagues, talking about going out and socialising and partying, taking cocaine and so on. Aside from the vehement denial of the suggestion she had ever said that she was taking cocaine, she also vehemently denied that there was any truth in the suggestion that she was going out regularly or talking or boasting about going out regularly.[18]There is actually no evidence from the Respondents about that and I accept Ms Nakra’s evidence in that regard.[19]The one complication which I have is the potential overlap between three conditions which we have seen and which Mr Johnson has rightly referred me to, a letter in the Bundle from the Claimant’s Doctor which is at page 42. It is dated 30 September 2022, after her employment had come to an end. The letter talks about Ms Nakra suffering from ongoing anxiety and depression for which she was receiving medication and support. It also refers to menopausal symptoms and gynaecological issues and it refers to increasing pain in her hip. I accept the evidence of Ms Nakra that the gynaecological HRT symptoms relate to bleeding and also thatthe various symptoms or impairments that she has described were experienced by her before the gynaecological issues. In respect of hip issues, that is not part of her ongoing problems.[20]Therefore the effect on her day to day activities, the impairments which I have described, I find on the evidence are attributable to the anxiety and depression.[21]The impact of Ms Nakra’s anxiety and depression has been substantial and had, as at the time of her employment with the Respopndent, lasted for more than 12 months. The effects would have been worse, but for the medication she was taking. Accordingly, I find that Ms Nakra was a disabled person at the material time.
Background
[1]The Claimant was employed by the Respondent as an HR Administrator from 28 June 2022 until 27 July 2022 when she resigned her employment, she says, in response to comments made by Gentjan Vajushi after he called her into a boardroom to discuss issues that had arisen that week between herself and two colleagues, Andrea Nash and Louise Middleton.[2]On 26 October 2022, the Claimant presented a claim to the Tribunals alleging that she had been discriminated against on the grounds of disability and race, and victimised. As we shall return to in a moment, the Claimant has previously brough a Tribunal claim against a former employer and she currently has two further live claims arising out of two unrelated periods of employment that post-date her employment with the Respondent.[3]There was an initial Case Management Preliminary Hearing before Employment Judge Mason on 25 May 2023 and thereafter a Public Preliminary Hearing on 7 August 2023 at which Employment Judge M Warren determined that the Claimant was disabled within the meaning of the Equality Act 2010 at the relevant time by reason of anxiety and depression.[4]Over the course of this hearing, we have ensured there have been regular breaks in the proceedings to accommodate both the Claimant’s mental health and physical health issues. We have been mindful that people with mental health conditions, including anxiety and depression, can experience difficulties with concentration and memory.[5]The Claimant represented herself. She is an intelligent, articulate individual.[6]For the Respondent we heard evidence from the following:- 6.1. Ms Andrea Nash, who worked at the Respondent as an HR Recruitment co-ordinator until May last year. She and the Claimant were colleagues in a small team, we were told, of four people. 6.2. Ms Louise Middleton, who worked at the Respondent for approximately eight months as a Payroll Administrator. She joined the Respondent at most a few weeks before the Claimant did. 6.3. Georgiana Din, an HR Manager at the Respondent. Ms Din was the Claimant’s line manager, though was on annual leave at the time of the events in question. 6.4. Mr Gentjan Vajushi, an HR Partner at the Respondent. 6.5. Ms Lyn Robinson, the Respondent’s Finance Director.[7]There was an agreed Hearing Bundle running to 165 pages. Any page references in this Judgment correspond to that Bundle.[8]At the Hearing on 7 August 2023 the previous List of Issues was updated. It confirms that although the claims are pursued in different ways, they arise out of five alleged matters. Our findings are inevitably focused upon those five key matters. We remind ourselves and the parties that the Claimant has the burden of establishing the primary facts by reference to which any claims are pursued. Her burden in that regard operates independently of the provisions of section 136 of the Equality Act 2010 (“EqA”) which may give rise to a reverse burden of proof once prima facie facts have been established by a claimant that potentially support an inference that they have been discriminated against. Credibility of the Claimant[9]Before we set out our findings in relation to the five key matters referred to, we first address certain evidence given by the Claimant in response to questions by Employment Judge Tynan. In their respective witness statements, Ms Nash and Ms Middleton state that the Claimant told them early in her employment that she had taken a previous employer to Tribunal and secured a pay-out. She had allegedly boasted to each of them how easy it is to secure money from a company. When she was initially asked about this, the Claimant vehemently denied making the comments attributed to her and went on to say that she had not taken a company to Tribunal before and it was all new to her.[10]When she was asked to confirm therefore that it was not the case that she had pursued a claim against any other employer, she sought to qualify her previous comments, disclosing that she had made a claim in 2019 against a former employer, but that it had settled without going to trial. She sought to explain her previous comments on the basis that attending a Tribunal hearing was what was new to her. Given the impression conveyed by the Claimant’s initial comments, which it seemed to the Tribunal were intended to dispel any suggestion that she was an experienced or even a practised or opportunist litigant, Employment Judge Tynan enquired whether she had brought any other Tribunal claims and directed a very specific question to her in this regard, namely he asked her to confirm that with the exception of these proceedings and the 2019 claim she had brought no other claims. The Claimant’s clear and unambiguous response was that there were no other claims.[11]As it was then very nearly 1pm, Employment Judge Tynan informed the Claimant that he would consider the matter over the lunch break. There was a further brief discussion about the length of the lunch break and related practical matters. Notwithstanding she had corrected herself moments earlier, the Claimant did not seek to correct the clear and unambiguous impression, which we find was intended to be given, that she had only brought one other claim, has limited experience of Tribunals and is a reluctant litigant.[12]During the lunch break, it was identified that the Claimant has two further live Tribunal claims. When this was explored with the Claimant when the hearing resumed, she claimed that she had misunderstood the questions asked of her before lunch. We regret to say that we do not accept her explanation in the matter and, although she did not suggest such, do not consider it is connected in any way to her disability. Throughout her cross examination, the Claimant had provided clear, concise and direct answers to Mr Warnes’ questions. In common parlance, we find that in the moment, and concerned to rebut the Ms Nash and Ms Middleton’s evidence, the Claimant was economical with the truth. She preferred for the Tribunal to believe that there were no further claims. It was misguided on her part, since we are not seised of those two other matters and accordingly do not offer and could not offer any view as to whether those further claims have any merit. Be that as it may, we naturally expect witnesses giving evidence on oath to be truthful and not to mislead, including by omission or through a conscious choice of language. We consider that the Claimant was not straightforward with the Tribunal, and this has undermined our ability to have confidence in the Claimant’s evidence. As we shall come to, there are short comings in the Claimant’s evidence in any event in respect of the matters complained of. The immediate, direct impact is that it leads us to conclude that the Claimant did boast to Ms Nash and Ms Middleton in her first week of employment that it is easy to get money out of an employer.
Findings of Fact
[13]Turning then to our findings in respect of the five key issues. Allegation 1 - Ms Nash refused to assist the Claimant with making changes to staff contracts on 26 July 2022.[14]On this issue, the Claimant contrasts how she says was treated by Ms Nash with Ms Nash’s apparently helpful attitude and approach towards Ms Middleton.[15]The Claimant and Ms Nash’s respective accounts on this issue are set out respectively in paragraphs 37 and 3 – 8 of their witness statements. It is not simply a difference of perception since their respective accounts are irreconcilable. We have noted already that we do not consider the Claimant to be a wholly reliable witness. She and Ms Nash provided contemporaneous accounts about the matter to Mr Vajushi on 26 July 2022. As we shall come back to, the Claimant failed to document, or fully document, in her account what she now says in respect of two further matters that are said to have occurred on the same day (Allegations 3 and 4 below). That omission on her part further undermines our ability to fully rely upon what the Claimant wrote in her email to Mr Vajushi regarding the change to staff contracts (known as a VTC).[16]In any event, on the Claimant’s own account (see page 117), Ms Nash pulled up her chair behind the Claimant and suggested to her that she follow the relevant SOP (Standard Operating Procedure) in respect of VTCs, on the basis that Ms Nash was herself inexperienced in the task. The two actions referred to, namely pulling up a chair and pointing the Claimant in the direction of the SOP, are consistent with someone who was endeavouring to be helpful rather than refusing to assist. If, as the Claimant alleges, Ms Nash refused to help her and that this was one of a number of incidents within the space of an hour on 26 July 2022 whereby the Claimant was effectively targeted by Ms Nash and Ms, it seems unlikely to us that Ms Nash would have even come to the Claimant’s desk or pointed her in the direction of the SOP.[17]On this issue, we note the evidence of Ms Din, Mr Vajushi and Ms Robinson that such alleged conduct would have been entirely out of character. Ms Robinson, who worked elsewhere, could be said to have been removed from the situation. As regards Mr Vajushi, we take into account that the Claimant alleges he also discriminated against her. However, Ms Din was described by the Claimant on 26 July 2022 as, “an absolute godsend”. In her witness statement the Claimant refers to Ms Din as, “lovely” and also “understanding” in relation to her mental health issues, following up in a supportive way some days later by sharing details of mental health issues affecting a close family member. We consider Ms Din to have been a particularly reliable witness; she was articulate, measured and consistent. On the Claimant’s own evidence she is evidently a warm, empathic and emotionally intelligent individual. Those qualities and our own assessment of her is that she is likely a good judge of character, such that we can attach weight to statement that Ms Nash is a naturally helpful individual.[18]In any event, we prefer Ms Nash’s account of her interaction with the Claimant on 26 July 2022. We find that she was helpful and constructive in her approach. If anything, Ms Nash’s witness statement is understated in terms of her constructive approach that day. In her contemporaneous note to Mr Vajushi on or around 26 July 2022, Ms Nash said that the Claimant was “doing great” (page 124). If, as the Claimant infers, Ms Nash was seeking to undermine her, that does not explain why Ms Nash gave positive feedback to Mr Vajushi regarding her work performance.[19]Given that we prefer Ms Nash’s evidence, including her detailed description of how she assisted the Claimant on 26 July 2022, the Claimant has failed to establish that Ms Nash refused to assist her, let alone that she was treated differently to Ms Middleton, or that it was disability or race discrimination. The claims identified in paragraphs 4.1, 8.1, 11.1 and 15.1 of the List of Issues cannot succeed. Allegation 2 - Ms Nash and Ms Middleton stopped talking when the Claimant entered the kitchen on 26 July 2022.[20]Ms Middleton has no recollection in the matter. Ms Nash recalls being engaged in a personal conversation with Ms Middleton that morning in the kitchen and that the discussion stopped when the Claimant entered the kitchen. In our judgement that is unexceptional and unsurprising. However friendly or simply professional the working relationship may have been up to that point, it was entirely up to Ms Nash what personal information she wished to share with the Claimant. We accept by then that she was beginning to feel slightly uncomfortable by what she perceived to be the Claimant’s tendency to overshare personal information. It is possible that Ms Nash felt she was indiscrete and as a result that she became a little more guarded in terms of what she was willing to disclose in terms of her own private and family life. However, we are satisfied that this does not mean she became unfriendly towards the Claimant.[21]We accept Ms Nash’s evidence that she said good morning to the Claimant as she entered the kitchen and asked if she was okay. We find that she was being friendly towards the Claimant, even if she did not wish to continue a discussion regarding a private matter in front of her.[22]The Claimant does not address this allegation at all in her witness statement. Accordingly, we have no evidence from her on the matter, including the context or the demeanour of the two women, or why the Claimant believes it was disability or race discrimination harassment. Questioned about the matter by Mr Warnes, the Claimant could not really explain why it might be discrimination or why it related to either protected characteristic of hers. The Claimant did not pursue the matter with Ms Nash or Ms Middleton when she questioned them at Tribunal. We are left therefore with Ms Nash’s unchallenged evidence that she stopped discussing a private matter with Ms Middleton when the Claimant entered the kitchen area, but was otherwise friendly towards her. Allegation 3 - On or around 21 and 22 July 2022, Ms Middleton and Ms Nash discussed a Pakistani contestant who had appeared on ‘Britain’s Got Talent’, played a YouTube clip in the open plan office of his appearance and sang along to the clip, mimicking his accent and ignoring the Claimant’s request to turn down the volume.[23]Although the Claimant addresses this matter in her witness statement, as with Allegation 2, Ms Nash and Ms Middleton were not questioned about it. Their respective accounts therefore went unchallenged. Oddly, the Claimant asked questions of the Respondent’s other witnesses about the matter even though they were not present when the offending clip was played.[24]We have regard to the available contemporaneous evidence on this matter, namely, the Claimant’s email to Mr Vajushi of 26 July 2022 in which she makes no mention of either Ms Nash or Ms MIddleton singing along to the clip, mimicking the contestant’s Pakistani accent or that this had made the Claimant feel uncomfortable. That is particularly notable if, as the Claimant claims, Ms Middleton also drew a picture of a monkey on a white board which the Claimant considered to be racist.[25]We have reflected on why this important detail may have been omitted from the Claimant’s email to Mr Vajushi. The Claimant has proffered no explanation in this regard. She did not challenge Ms Nash or Ms Middleton in their respective accounts. It is a serious allegation as it suggests that Ms Nash and Ms Middleton were targeting the Claimant on grounds of her race and mimicking a Pakistani accent in order to make her feel uncomfortable as a woman of British Indian ethnic origin.[26]The Claimant, as we have said, has the burden of establishing the primary facts relied upon. We find that she has embellished her evidence. We have referred already to our inability to be fully confident in her evidence. On this issue she was inconsistent as to the date it was said to have occurred. In her witness statement it was said to be 22 July 2022, at Tribunal she was certain it had occurred on 26 July 2022. The date given to Mr Vajushi by the Claimant on 26 July 2022 was 22 July 2022 (see page 118). Perhaps the Claimant was simply confused in the pressure of the moment. But it adds to the overall, adverse impression we have formed as to the Claimant’s reliability. It is a relatively minor point. The more notable point is that if the clip was played on 22 July 2022, the Claimant had four days in which to reflect on what had happened. Yet, in a detailed account of her concerns submitted to Mr Vajushi at 16:17 on 26 July 2022, there was no mention by the Claimant that the two employees were allegedly mimicking a Pakistani accent.[27]In this regard, we further note that in her closing submissions the Claimant stated that as a result of how she was treated in 2019 by a previous employer, she had vowed never to be in a similar situation again. She said, “I would always take action”. Which begs the question therefore why she did not call out Ms Nash and Ms Middleton on this issue in July 2022 and why the allegation was raised for the first time in the claim form she submitted to the Tribunal in October 2022.[28]We find that Ms Nash and Ms Middleton did not mimic the contestant’s Pakistani accent. We would have said, in any event, that the Claimant plainly did not consider on either 22 or 26 July 2022 that a hostile etc. environment had been created, or that this resulted from unwanted race related conduct. Rather, her only concern was that music had been played in the office at a level that affected her concentration. She was upset about a noisy working environment, not a hostile discriminatory environment.[29]The complaint in paragraph 11.3 of the List of Issues cannot succeed. Allegation 4 - On 26 July 2022, Ms Middleton drew a picture of a monkey with hairs on its chin.[30]The Claimant did not refer to this matter when she emailed Mr Vajushi on 26 July 2022 setting out her concerns. We find that omission inexplicable. If a picture of a monkey had been drawn which, as the Claimant now says, she perceived to be targeting her as a menopausal British Indian woman, she would surely have raised the matter. It is a particularly serious allegation. In the age of the smart phone she might have captured the drawing on her phone even if, which she certainly did not suggest in her evidence, she was uncertain at that time whether or not to escalate her concerns.[31]The matter would seem to have been raised for the first time in the Claimant’s Tribunal claim submitted some three months later.[32]We prefer Ms Middleton’s evidence that she was in the habit of drawing topical emojis on the office whiteboard. The Manager of the Respondent’s Nottingham Depot is Chris Byrd. It is not in dispute that he is bald and sports a full beard. He either visited the office at which the Claimant worked on 26 July 2022 or had been in the office very recently. We accept that Ms Middleton drew an emoji of Mr Bird and wrote, “Happy Chris Byrd Day”.[33]We do not uphold that the emoji resembled a monkey, or might reasonably have been perceived by the Claimant to resemble a monkey, not least given the explicit reference to Mr Byrd in the drawing. We find that it was clearly and unambiguously a drawing of Mr Byrd. The primary facts therefore have not been established.[34]The complaint in paragraph 11.4 of the List of Issues cannot succeed. We would have said, in any event, that even had the Claimant reasonably perceived the drawing to be of a monkey, the conduct objected to did not relate to race, it related to Mr Byrd. Allegation 5- On 27 July 2022, Mr Vajushi told the Claimant that she was not a right fit for the company.[35]The comment is not denied by the Respondent. We return in due course to the context in terms of the reasons why the comment was made.
The Law
[36]The Claimant pursues claims in respect of Allegation 5 under §.13 and 27 EqA 2010. The complaint regarding Ms Nash and Ms Middleton having stopped talking in the kitchen is pursued by way of claims under §.13 and 26 of the EqA 2010.[37]Section 13(1) of the Equality Act 2010 (“EqA”) provides, (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[38]Section 26 of the Equality Act 2010 provides, (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic; and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect.[39]Section 27 of the Equality Act 2010 provides, (1) A person (A) victimises another person (B) if A subjects B to a detriment because- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.[40]Section 27(2) goes on to define the protected acts as including, (d) making an allegation (whether or not express) that A or another person has contravened this Act.[41]In considering the Claimant’s direct discrimination complaints we have focused on the reasons why the Respondent acted, or failed to act, as it did. That is because, other than in cases of obvious discrimination (this is not such a case, the complaints in respect of the alleged mimicking and monkey emoji having not been upheld), the Tribunals will want to consider the mental processes of the alleged discriminator(s): Nagarajan v London Regional Transport [1999] ICR 877.[42]In order to succeed in any of her s.13, and indeed s.26, complaints the Claimant must do more than simply establish that she has a protected characteristic and was treated unfavourably or subjected to unwanted conduct: Madarassy v Nomura International plc [2007] IRLR 246. There must be facts from which we could conclude, in the absence of an adequate explanation, that the Claimant was discriminated against. This reflects the statutory burden of proof in section 136 of the Equality Act 2010, but also long established legal guidance, including by the Court of Appeal in Igen v Wong [2005] ICR 931. It has been said that a Claimant must establish something “more” than simply unfavourable treatment and a protected characteristic, even if that something more need not be a great deal more: Sedley LJ in Deman v Commission for Equality and Human Rights [2010] EWCA Civ 1279.[43]The grounds of any treatment often have to be deduced, or inferred, from the surrounding circumstances and in order to justify an inference the Tribunal must first make findings of primary fact identifying ‘something more’ from which the inference could properly be drawn. This is generally done by a Claimant placing before the Tribunal evidential material from which an inference can be drawn that they were treated less favourably than they would have been treated if they had not had the relevant protected characteristic: Shamoon v RUC [2003] ICR337. ‘Comparators’, provide evidential material. But ultimately they are no more than tools which may or may not justify an inference of discrimination on the relevant protected ground, in this case race and disability. The only identified comparator relied by the Claimant is Ms Middleton, in respect of Allegation 1. The primary facts have not been established in support of that allegation.[44]In the absence of an actual comparator whose treatment can be contrasted with the Claimant’s, the Tribunal can have regard to how the employer would have treated a hypothetical comparator. Otherwise, some other material must be identified that is capable of supporting the requisite inference of discrimination. This may include a relevant statutory code of practice. Discriminatory comments made by the alleged discriminator about the Claimant might, in some cases, suffice. There were no such comments in this case, and the mimicking and monkey emoji allegations have not been upheld.[45]Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in some case suffice. 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.[46]It is only once a prima facie case is established that the burden of proof moves to the Respondent to prove that it has not committed any act of unlawful discrimination, so that the absence of an adequate explanation of the differential treatment becomes relevant: Madarassy v Nomura [2007] EWCA Civ 33.[47]In Richmond Pharmacology v Dhaliwal [2009] ICR724 it was observed in relation to harrasment, “A Respondent should not be held liable merely because his conduct has had the effect of producing a prescribed consequence: it should be reasonable that that consequence has occurred… overall the criterion is objective because what the Tribunal is required to consider is whether, if the Claimant has experienced those feelings or perceptions, and it was reasonable for her to do so. Plus if, for example the Tribunal believes that the Claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for the Claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the Tribunal as to what would be important for it to have regard to all the relevant circumstances including the context of the conduct in question. One question that may be material is whether it should reasonably be apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the prescribed consequence): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt… …dignity is not necessarily violated by what was said or done which was trivial or transitory, which should have been clear but any offence was unintended. But it is very important that employers and Tribunals are sensitive to the hurt which can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”
Conclusions
[48]Our conclusions in relation to the two outstanding matters are as follows. Allegation 2[49]Quite simply, the Claimant has not established and indeed has not put forward any evidence whatsoever to establish ‘something more’ in terms of the reasons why Ms Nash and Ms Middleton stopped discussing the matter they had been discussing on 26 July 2022 when the Claimant entered the kitchen. She has offered no context, no evidence as to their demeanour and no evidence whatsoever as to why this allegedly unwanted conduct related to her disability or race or why she infers that the conversation would not have come to an end had she not been disabled or British Indian. She has failed to discharge her primary burden in the matter.[50]In any event, Ms Nash has provided an entirely innocent explanation in the matter. She was discussing a personal family matter with Ms Middleton and stopped discussing it when the Claimant entered the kitchen, but offered a friendly greeting and enquired how the Claimant was.[51]The complaint fails. Allegation 5[52]The s.27 complaint fails as the Claimant did not do a protected act. We do not uphold that her email to Mr Vajushi of 26 July 2022 was a protected act.[53]At the highest she indicated by her concluding comments in that email that she was starting to give thought to how Indian (or possibly British Indian) employees were treated by the Respondent and wished to find out more as to the circumstances in which two former colleagues had left. She had no direct information in that regard as they had both left the organisation before she had commenced employment with it.[54]The fact that the Claimant wished to find out more about two former colleagues, without identifying what, if anything, was specifically concerning her, falls some way short of an allegation (explicit or otherwise) that the Equality Act 2010 had been contravened. The Claimant’s email cannot sensibly or properly be construed as containing any such allegation.[55]In any event, the s.27 complaint would also fail for the same reasons that her s.13 complaints fail, namely, Mr Vajushi said that she was not a right fit for the company because within a little over four weeks of commencing with the Respondent potential tensions had suddenly emerged within her team, or at least Ms Nash and Ms Middleton had reported being made to feel uncomfortable by the Claimant’s tendency to overshare personal information and thereby maintain professional boundaries within the workplace.[56]Mr Vajushi was concerned in particular by what was reported in terms of the Claimant’s possible conduct outside of work and whether this had the potential to become a work related issue. He took statements from all concerned before concluding that the Claimant was not the right fit and was informed in reaching that conclusion by the fact in particular that Ms Nash was a known and trusted individual, having then been with the organisation for some nine months or so.[57]In our judgement it is irrelevant that Ms Din or another employer might have undertaken either a more detailed or a more formal enquiry in the matter. Any unfairness, if indeed Mr Vajushi can be said to have acted unfairly in the matter, is not to be conflated with discrimination. There is a satisfactory explanation for why Mr Vajushi acted as he did. It was a small team that needed to be able to work effectively together. The Claimant had only been at the company for a few weeks and was still in her probation period. She did not have ordinary unfair dismissal rights. The available information suggested to Mr Vajushi that the Claimant’s personal life had the potential to spill over into the work environment. Mr Vajushi decided to act decisively in the matter, though in the event the Claimant pre-empted him by resigning her employment when he told her she was not the right fit.[58]We are certain that Mr Vajushi would have acted in exactly the same way had the Claimant not been disabled or British Indian. He was unwilling to take a chance in the matter. He would have been minded to terminate any employee in the same or similar circumstances and would have explained his actions on the basis that the person concerned was not a right fit.[59]The complaints identified in paragraphs 8.1 and 11.3 of the List of Issues, do not succeed.[60]In summary and in conclusion, therefore, the Claimant’s various claims are not well founded and are dismissed. COSTS JUDGMENT
Conclusions
[1]The Tribunal orders the Claimant to pay the Respondent’s costs assessed in the sum of £3,600.[2]The Claimant shall pay the costs to Citation Ltd on behalf of the Respondent.[3]We apologise for the significant delay in this matter since the hearing on 10 January 2025. The Respondent’s various emails to the Tribunal over the course of 2025 only came to Employment Judge Tynan’s attention on 26 January 2026, following which clarification was sought as to Mr Warne’s professional status.[4]At the hearing on 10 January 2025, attended by the Claimant, we determined that the threshold test was met for making a costs order against the Claimant in respect of the Respondent’s costs incurred on 5 and 6 June 2024. However, we wished to give the Claimant an opportunity to provide the Tribunal with information regarding her ability to pay. We refer in that regard to our orders sent to the parties on 28 January 2025.[5]The Claimant has failed to comply with our orders. She has not submitted a statement of her financial circumstances, or which addresses the terms of the settlement she agreed with Grocery Delivery E-Services UK Ltd, nor has she provided copies of the documents she was ordered to provide. On 27 February 2025 she sent a brief email to the Tribunal in which she apologised for having overlooked the matter, and asked that the Tribunal and Respondent “bear with me”. Since then there has been no further correspondence from her.[6]Rule 82 of the Employment Tribunal Procedure Rules 2024 provides that a Tribunal may have regard to the paying party’s ability to pay when deciding whether to make an order and when determining the amount of an order. The Claimant has been afforded the opportunity to place potentially relevant information before the Tribunal about her means but has failed to do so. In the circumstances, we cannot sensibly have any regard to her ability to pay, since we have no information in that regard.[7]The Respondent’s costs are to be assessed on the standard basis. Rule 76(1)(b) states that Employment Judges should apply the principles in the Civil Procedure Rules 1998 (“CPR”) when undertaking detailed assessments of costs. Whilst the order we made was for a summary assessment, nevertheless we have found it helpful in this matter to have regard to the CPR and to the 2021 Edition of the Guide to the Summary Assessment of Costs which is available to judges, parties and practitioners in the Civil Courts.[8]Rules 44.3(1) and (2) of the CPR provide that where the court assesses the amount of costs on the standard basis it will not allow costs which have been unreasonably incurred or are unreasonable in amount and will only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred. The court will resolve in favour of the paying party any doubt which it may have as to whether the costs were reasonably incurred or were reasonable and proportionate in amount.[9]The Guide states that costs will be proportionate if they bear a reasonable relationship to(a) the sums in issue in the proceedings(b) the value of any non-monetary relief in issue in the proceedings(c) the complexity of the litigation(d) any additional work generated by the conduct of the paying party(e) any wider factors involved in the proceedings, such as reputation or public importance and(f) any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.[10]Rule 44.4(3) sets out the factors to be taken into account in deciding the amount of costs. Those factors include: the conduct of the parties, including conduct before as well as during the proceedings; the efforts made, if any, before and during the proceedings in order to try to resolve the dispute; the value involved in the proceedings; the importance of the matter to the parties; the complexity of the proceedings; the skill and specialised knowledge of the lawyers; the place where the work was done; and the receiving party’s last approved or agreed budget (this is not relevant in the employment tribunals).[11]We do not underestimate the importance of this matter to the Respondent, in particular to those who were said to have discriminated against the Claimant. We recognise that findings of discrimination can impact working relationships, undermine morale and damage an organisation’s reputation and third-party relationships.[12]Mr Warnes’ employer, Citation Ltd does not engage in reserved legal activities, meaning that there is no requirement for him to maintain a practicing certificate. However, as he remains on the roll of solicitors maintained by the Solicitors Regulation Authority, we are satisfied that he is someone who has rights of audience as set out within the term “legal representative”, as defined in Rule 2 of the 2024 Rules. In which case, the Respondent’s ability to recover its costs are not capped at the rate specified under Rule 77(2).[13]In our judgement, the Respondent’s representatives’ costs are proportionate in the context of the various factors we have identified above, as well as comfortably in line with the fees one might expect to be charged by a qualified solicitor of Mr Warnes’ call and experience. The current guideline hourly rates for solicitors and legal executives with over 8 years’ experience working in Manchester is £295. Mr Warnes has 14 years’ post qualification experience. The Respondent seeks £225 per hour in respect of his time, and claims 16 hours in total for his time on 5 and 6 June 2024, equating to £3,600. We have not awarded VAT on this sum on the understanding that the Respondent is registered for VAT and, as such, can reclaim any VAT, if it has not already done so.[14]We have not awarded an additional sum in respect of the Respondent’s costs of the costs application as that would require a further costs application. Approved by: