Mr E Mughal v Carlisle Support Services Group Ltd: 3313490/2023
EMPLOYMENT TRIBUNALS
Case No 3313490/2023
Between
Mr E MughalClaimantCarlisle Support Services Group LtdRespondent
Before
Employment Judge DickIn person for claimantMr R Katz (instructed by solicitor) for respondentDate 19 July 2025
JUDGMENT
[1]The complaint of direct race discrimination is not well-founded and is dismissed.[2]The complaint of direct religious discrimination is not well-founded and is dismissed.[3]The complaint of harassment related to race is not well-founded and is dismissed.[4]The complaint of harassment related to religion is not well-founded and is dismissed. Approved by: Employment Judge Dick 19 July 2025
REASONS
CONCLUSIONS
[1]The complaints in this case concern some remarks made to the claimant by one of his colleagues on 21 December 2022, and then the reaction (or lack of reaction) by the respondent when the claimant raised a grievance about what had happened. Amongst other things, the colleague said: “I respect you because of your colour, but you are all male chauvinist pigs” and “I hate you”. The claimant says he took particular offence at the remarks because of his religion and/or his race; he describes his race as Pakistani and his religion as Muslim). The claimant complains about nine particular aspects of the respondent’s handling of the grievance, which include trying to warn him off then taking too long to deal with it. The particular complaints are set out in the list of issues appended to these written reasons. The claimant says that in its handling of his grievance etc. the respondent directly discriminated against him because of his religion or his race. PROCEDURE AND ISSUES[2]At the start of the case I discussed the issues with the parties and explained that I would only be deciding on those points that were in the list of issues, as amended (see below). I would only take account of the parts of the bundle which were referred to during the course of the evidence or which I was asked to read in advance.[3]I dealt with a number of amendments during the course of the case. First of all, by Case Number: 3313490/2023 2 agreement, I allowed a minor amendment to the respondent’s particulars of response to reflect that the claimant had been in continuous employment since 2013 rather than 2023 as had been incorrectly recorded. More significantly, the case proceeded on the basis of an amended list of issues. The amendment to the original list, which had dealt only with a complaint about direct discrimination and remedy, was by the addition, at my instance, of sections which dealt with time limits and a complaint of harassment. So far as time limits are concerned, since these are a jurisdictional issue I considered that I was obliged to consider the point even though it had not been identified at the preliminary hearing. So far as harassment is concerned, I considered that on a fair reading of the claim form as a whole, the claimant’s complaint about what was said to him on 21 December could reasonably be labelled as direct discrimination (as it had been in the list of issues) or, in the alternative, harassment (as it had not been). Mr Katz for the respondent had no objection to this.[4]After the claimant had finished giving evidence I heard and refused his application to amend his claim to add two further alleged acts of direct discrimination, and I gave oral reasons for the decision. In brief, these were as follows. The two new complaints would have followed on from issue 2.2.10 (not acknowledging the claimant’s appeal against the outcome of his grievance until 18 December 2023) as follows: 2.2.11 – having acknowledged the grievance the respondent failed to deal with it; and, 2.2.12 – the respondent failed to deal with the claimant’s (separate) grievance against Louise Harrison dated 8 March 2024. The application came about when I asked the claimant to clarify his assertion, made during the course of his oral evidence, that the respondent had breached its own policies. I accepted the respondent’s submissions that the addition of these points to the case would require an amendment to the claim and not just to the list of issues – the facts on which the claimant would seek to rely were not included on the claim form for the simple reason that the relevant events happened after the claim form was presented (which was on 27 November 2023). Those events did however happen well before the preliminary hearing at which the list of issues was drafted; that was on 6 August 2024. They therefore seemed to me to be no good reason why the application could not have been made considerably earlier. That of course is a relevant consideration, but it is not determinative. Ultimately the issue was the balance of prejudice. Because the points had not been identified as issues at the case management hearing, none of the respondent’s witnesses had dealt with them in their statements. While there might be some material within the bundle that was relevant to the points, and the issue might have been dealt with by recalling the claimant to give further evidence and allowing the respondent to take supplementary statements from its witnesses overnight, that in my judgment would have added unnecessarily to the length of the case without any significant benefit to the claimant, particularly with regard to 2.2.11, which would have added very little indeed to the substance of his claim. With regard to 2.2.12, that was an entirely new issue, months after the other relevant events. The issue as the claimant explained it to me also involved at least two other people who the respondent was not planning on calling as witnesses. Allowing the claimant to pursue these two new issues would cause significant prejudice to the respondent in my judgment. In contrast, where I to refuse the application, the claimant would still be able to pursue his 10 complaints, six or seven of which were, like the new points, already in effect complaints about the procedure adopted by the respondent. The balance of prejudice therefore fell in favour of refusing the amendment.[5]For the evidence, for each witness the usual procedure was adopted, i.e. their Case Number: 3313490/2023 3 written statements stood as their evidence-in-chief and they were then cross-examined.[6]The claimant called the following witnesses:• Himself• Mr Abdoul Diallo• Mr Ibrahim Gongoro[7]The respondent called:• Ms Tabsum Chwohary• Ms Suzanne Hawkings• Mr John Angel• Ms Charlotte Keeble[8]By agreement, I also read a statement that Mr Simo Gjuta gave to the respondent during its internal grievance investigation and the witness statement of Mr Yaya Soro, produced on behalf of the claimant, giving both what weight I thought appropriate given that neither had been the subject of cross-examination under oath.[9]Following submissions on the second day of the case, I indicated that I would take the same approach to the statement of Ms Louise Harrison, who was to have been a witness for the respondent. I gave oral reasons for the decision, which were as follows. I accepted that Ms Harrison was the respondent’s principal witness, or one of them. She was the person said to be responsible for many of the discriminatory acts set out in the list of issues and otherwise had evidence to give about most of the others. It was explained to me that in January 2025 Ms Harrison booked annual leave for a period which included the hearing date in this case, to take a holiday in Kenya. It seemed likely that she was aware at the time of the date of this Tribunal hearing; if she was not aware, she should have been. Mr Katz was unable to provide me with any explanation as to why, when all of that happened in January, the Tribunal was not informed about Ms Harrison’s planned absence until much later – in fact it was something that was only brought to the Tribunal’s and the claimant’s attention very recently. (No criticism attaches to Mr Katz personally. He told me, and I accept, that he first came to the case on the Thursday before the hearing and had since made considerable personal efforts to get Ms Harrison in the position to be able to give evidence.) At the start of the case I allowed an application for Ms Harrison to be be permitted to give evidence from Kenya over a video link. But by the time it came for her to give that evidence, the situation appeared to be that she was probably in the air or still travelling, having experienced delays to her original flight and so missed her connecting flight(s). She had been in regular contact with Mr Katz but in her last communication she said that she did not think it would be possible for her to attend on the video link as planned. I discussed the potential for an adjournment with the claimant, making clear that if he requested one I would likely grant it. The claimant made the quite understandable decision that he did not want the case delayed any further. That left me with two options. Either I could consider the evidence of Ms Harrison on the basis that it would inevitably carry less weight than evidence that was given orally on oath, though I did make clear to the claimant that if I were to take that approach that would not mean that I would simply disregard the evidence. I would have simply to Case Number: 3313490/2023 4 consider it in light of all the other evidence. The other option was for me to entirely disregard Ms Harrison’s statement. I decided to take the first of those options. I considered the balance of prejudice to both parties. I took into account that there was no good reason for the witness’s absence and that the claimant had been entitled to expect her to be here. The claimant would inevitably suffer some prejudice, given the importance of her evidence, if he did not have the chance to cross-examine her. The respondent would suffer prejudice if I disregarded her statement. In all of those circumstances, I was of the view that the balance fell in favour of taking her evidence into account but, of course, doing so in the context that it was not evidence that had been taken under oath. As to what use I did in fact make of her evidence, see below at para 26. 8 At the conclusion of the evidence I heard oral submissions from the parties, supplemented by written submissions, having previously provided the parties with my own provisional written summary of the relevant law. I then delivered an oral judgment. FACTUAL FINDINGS 9 I find the following facts on the balance of probabilities. Where facts were not in dispute I simply record them; where I have needed to resolve disputed facts I make that clear. I have not made findings on every dispute of fact between the parties, but merely on those which assisted me in coming to a decision bearing in mind the list of issues. Background etc. 10 As I have said, the claimant described his race as Pakistani and his religion as Muslim. He had been in continuous employment since 2013, having been TUPE transferred to the respondent some time after 2013. His job was (and indeed still is) a railway Revenue Protection Inspector (“RPI”), also known as a Revenue Support Officer (“RSO”) or, more, colloquially, a ticket inspector. He worked at Willesden Junction Railway Station. The claimant is a union representative. That was of some marginal relevance which will become clearer a little later. 11 This case concerned, principally though not exclusively, two disagreements that took place between the claimant and his colleague Ms Chwohary on 20 and 21 December 2022. It was not in doubt that Ms Chwohary had a particularly fraught professional relationship with the claimant and, indeed, with others of her colleagues. I made it clear to the parties and, indeed, the parties did not disagree with this approach, that I did not consider it necessary to make findings about the history of those professional relationships. It is however relevant for me to record here that both Mr Diallo and Mr Gongoro, as well as the claimant, considered that Ms Chwohary was rude to all or most of her colleagues, the claimant included. For her part, Ms Chwohary considered that the claimant and her other male colleagues’ past behaviour towards her had been unacceptable. I explicitly make no findings about who was in the right or the wrong there but the way the parties undoubtedly felt about each other is, in my judgment, one of the relevant circumstances I must take into account when deciding whether the claimant was subjected to harassment on 21 December. 20 December 2022. 12 I broadly accept the evidence of the claimant, Mr Diallo and Mr Gongoro about this Case Number: 3313490/2023 5 day. In their role as union representatives, the claimant and Mr Diallo were telling staff, including Ms Chwohary, about some changes that would be affecting them. Ms Chwohary repeatedly asked the claimant to speak up. The claimant told her that he could not change his speaking style. (I noted myself during the hearing that he was somewhat softly spoken.) The claimant went on to suggest to Ms Chwohary that whatever she was listening to on her phone was best listened to after the meeting. I am not satisfied on the balance of probabilities that Ms Chwohary swore at the claimant on that occasion as only one of the witnesses recalled that happening. 21 December 2022; Issue2.2.1 13 The following day there was another incident. Like the one on 20 December I have just described, it took place in the mess room of Willesden Junction Station. The witnesses that were asked all agreed that it was a fairly small room, and there was no dispute about who was present. As I name those present I will also say what their race and religion was to the best of the witnesses’ knowledge and, where I do that, I have accepted what the witnesses (including the claimant) told me. So, present were:• The claimant.• Yaya Soro. Mr Gongoro believed that Mr Soro was from Ghana. Nobody who was asked knew what his religious beliefs were.• Tabsum Chwohary. Like the claimant, she was a Pakistani Muslim.• A man by the name of Vincent. The witnesses believed that he was from India and was not Muslim.• Simo Gjuta, who was white. The claimant did not know his religion, but Mr Gongoro thought it was Christian.• Finally, Mr Gongoro himself, who was, like the claimant, Muslim but, unlike the claimant, was not Pakistani. 14 All of those people, with the exception of Ms Chwohary, were male. The claimant was again discussing the changes that I have already mentioned, with Mr Soro and with some others. Ms Chwohary became involved in that conversation. It was the claimant’s case that she told the claimant that he was turning colleagues against her and that his behaviour was affecting her mental health. Words to that effect were recalled not only by the claimant but also Mr Gongoro and Mr Soro amongst others. Indeed, Ms Chwohary did not really dispute saying something like that and, of course, it is clear to me that that was how she felt. So, for those reasons, I accept the claimant’s evidence on that point. 15 The claimant and at least some of the other men there perceived Ms Chwohary to be interrupting the conversation with irrelevances, and they attempted to continue with the conversation. Ms Chwohary believed, I find, that the men were not listening to her. She considered their behaviour to be rude and was frustrated by it. As will become apparent, Ms Chwohary believed that she was not being listened to because she was a woman. I did not find it necessary in the circumstances to make findings about whether her belief was or was not justified but, as I have said, it is clear to me that it was genuine. Case Number: 3313490/2023 6 16 It was the claimant’s case that Ms Chwohary then said three particular things. Firstly, “I respect you because of your colour” followed secondly, very closely, by, “But you are all male chauvinist pigs.” Thirdly, after the claimant had told her that if she had issues with him she should take it up with her manager, “You don’t like me. I don’t like you. Simple. I don’t like you that’s the end of story. I hate you. Simple.” 17 Regarding the first comment “I respect you because of your colour,” I accept that was said. Although In Ms Chwohary’s oral evidence she said she could not remember whether or not she had used the word “colour” she did agree that she had expressed the sentiment and, indeed, all the other witnesses recalled her saying it. I further find that it was meant by Ms Chwohary as a recognition that both she and the claimant were of the same race and religion, in other words, from a shared background. That, indeed, is how the claimant took it as well. Although one of the witnesses told me that he was offended by this as it implied that Ms Chwohary would have treated people who were not of the same race or religion as her worse, or differently, that was not the claimant’s case and I find that the claimant was not offended by this particular part of what Ms Chwohary said. 18 The next, and most significant part, in the context of this case, was the comment, or the insult, however one views it: “But you are all male chauvinist pigs.” All the witnesses, including Ms Chwohary herself, agreed that it was said. I find it was said. Everyone, apart from the claimant, believed that the comment was directed at all the men in the room. The claimant’s evidence was that it was directed at him personally despite the very clear use of the words “You are all.” I reject the claimant’s suggestion. The comment was clearly directed at all the men in the room, albeit that I do accept that Ms Chwohary was most upset with the claimant. 19 I drew the parties’ attention to my own personal knowledge that the term “male chauvinist pig” is a phrase that has been in common usage since the 1970s. Nobody disputed that, and I take judicial notice of the fact. I regard this as significant because it shows, in my judgment, as was also clear to me through Ms Chwohary’s evidence, that she did not select the word “pig” in isolation. She used what I would describe as a stock phrase. She used it to express her belief that her male colleagues were acting in a sexist fashion towards her. I find that that was the only purpose behind that comment. Even though she had prefaced the comment with the words “I respect you because of your colour”, I find as a fact that Ms Chwohary did not use the phrase “male chauvinist pigs” because of the claimant’s religion or race. In her mind the phrase simply had no connection whatsoever to the claimant’s race or religion and it did not occur to her that he would take offence on the basis of his race or religion. 20 I accept Ms Chwohary’s evidence that, both at the time and in hindsight, she did not believe that a Muslim would find the use of the term “male chauvinist pig” offensive. I keep in mind, of course, that she, herself, is a Muslim. As she put it: “Muslims are not prohibited from saying the word pig, they are prohibited from eating the meat of a swine.” She did not consider that comparing someone to an unclean animal could be offensive in a racial or religious context. On the other hand, plainly, persons of the same religion can, and do, have different views about important things regarding their religion and I therefore accept, albeit with some hesitation, on the balance of probabilities, that the claimant was genuinely offended, as a Muslim, because of the comment. The claimant told me that since in his faith the pig is considered to be the dirtiest animal, it was offensive to him to Case Number: 3313490/2023 7 be compared to a pig. It is significant, in my view, that Mr Gongoro also gave similar evidence about being caused offence by the phrase. The respondent points to the fact that when the claimant made his first written complaint to the respondent about the 21 December incident he did not mention the male chauvinist pigs comment. The respondent also points to what the claimant later said about 21 December, in a meeting on 5 January. According to the written record, he said that Ms Chwohary had spoken in an aggressive way but did not mention the male chauvinist pigs comment. The respondent suggested that if the claimant really had been offended by the comment, he would have mentioned it. But, so far as the 5 January meeting is concerned, it does not appear that the claimant was actually asked what Ms Chwohary said. I accept the claimant and Mr Gongoro’s evidence that afterwards they went and looked the phrase up. Mr Gongoro told me he had heard it before but had been unsure what it meant. The claimant told me, and I accept, English not being his first language, that he had not, in fact, ever heard the phrase before and did not know what it meant. The fact that the claimant went to look up the phrase afterwards suggests to me that it was on his mind and, therefore, that it had offended him. And I do accept that he felt more offence than one might ordinarily expect because he did not realise that male chauvinist pig was what I have already described as a stock phrase. Though I accept that the claimant was offended as a Muslim, I do not accept that he was was offended because of his race. 21 Regarding the third part of what Ms Chwohary said “You don’t like me. I don’t like you” etc., Ms Chwohary could not remember whether she had said this. All the other witnesses recalled her saying it or something like it and I find that she did say it. I would also add that I accept Mr Gongoro’s evidence that the claimant dealt with all of this calmly and reasonably. 22 So, in relation to issue 2.2.1 in the list of issues, Ms Chwohary’s initials are incorrectly recorded but there is no issue about that. She did say “I respect you because of your colour, but you are all male chauvinist pigs” and “I hate you”, and the claimant did take offence to the male chauvinist pigs part as a Muslim. 23 The day of the incident the claimant emailed his line manager, Mr Akinfolarin. As I have said, he did not specifically mention the male chauvinist pigs comment in that email. He did however mention it in an email he sent on 6 January, outlining his full account of the events that day, in which he also referred to “offensive language, religious hate, racial language and targeting”. 5 January 2023 meeting 24 The 5 January meeting took place between the claimant and Ms Harrison, the respondent’s operations manager, as result of the claimant’s complaint about 21 December. The meeting notes record that at the beginning of the meeting it was agreed that it was not a grievance meeting but was to establish what options were available to deal with the claimant’s concern. It might best be termed a pre-grievance meeting. There is no dispute that an offer of mediation between the claimant and Ms Chwohary was made, which the claimant refused. 25 As I have said, the claimant then sent an email setting out his complaints in more detail the following day, 6 January, and the respondent arranged a further meeting – this time unequivocally a grievance meeting – which took place on 23 January 2023. There was some contact between the claimant and Ms Harrison before that 23 January meeting. Before I deal with that, I say a little about how I approached Case Number: 3313490/2023 8 Ms Harrison’s written evidence in general. Ms Harrision 26 Given that Ms Harrison’s statement was not the subject of sworn evidence, I decided only to take account of a few particular things in it. First, it pointed me to some documents that were already in the agreed bundle such as invitation letters and meeting notes, none of which were controversial. Second, Ms Harrison accepted that she had advised on mediation between the claimant and Ms Chwohary. That accorded with the claimant’s account, so I thought it was fair to take it into account. Ms Harrison also gave some information about the extent of delays to the process (i.e of investigating the claimant’s complaint) and, for the same reason, I thought it was appropriate to take that into account. I also took account of what she said at paragraphs 31 and 35, her explanation of what the claimant said were threats made by her. I considered it appropriate to take account of that because there was, at least to some extent, support for what she had said in an email she had sent nearer the time, and I will turn to that topic a little later. 27 I did not use Ms Harrison’s statement to decide on why she decided not to uphold the claimant’s grievance. She gave written reasons for doing so, and I took account of those reasons which, in my judgment, spoke for themselves. Nor did I take account of the statement in coming to conclusions about what the reasons were for the delays. Nor did I take account of Ms Harrison’s assertion that her actions were not in any way to do with the claimant’s race, as that assertion related to a key issue in the case and had not been the subject of cross examination. Instead, on those issues I drew my own conclusions from the other evidence in the case, which, of course, I will come to later. I took the same approach to Ms Harrison’s assertion that she was not a friend of Ms Chwohary (albeit that could not be described as a key issue). Issue2.2.2 28 It was the claimant’s case, reflected at 2.2.2 on the list of issues, that on 9 January 2023 Ms Harrison said to the claimant that what he was doing in pursuing a grievance was against the law and that he had to be very careful. This was not actually dealt with in the claimant’s witness statement, but it was dealt with in his claim form which he adopted as his evidence during the course of the hearing. The relevant part of the form said that on 10 January Ms Harrison spoke to the claimant on the phone and “issued threats and conveyed potential consequences” should he continue pursuing the complaint. The conversation, the claim form continues, “spanned a total of two minutes”. 29 On 9 January, the claimant sent an email to Ms Harrison, referring to the call: Thanks for your phone call @ 12:24 ( 2 minutes) and you told me over the phone that […] you need very very careful what you are doing it’s against the law but you haven’t mentioned in your email what i have done against the Law and you need training. I don’t understand this call was a threat or anything else ? [claimant’s use of bold and underline] 30 The slight discrepancy as to whether the call took place on 9 or 10 January is clearly not significant. I do however accept the respondent’s point that in his own email the claimant did not seem particularly clear whether or not a threat had been made to him. And I also consider it significant that the claimant did not Case Number: 3313490/2023 9 formally complain at the time about what he later said was a threat. He, in fact, was not to assert that he had been threatened until after he received the grievance outcome from Ms Harrison, which he disagreed with. 31 Ms Harrison’s response, by email, so far as is relevant read: I do not want this to look as if this is becoming some kind of hate crime or discrimination or bullying. You stated that you wished to take out a grievance and this is what will happen. I have explained that this will not be looked into as a collective on two occasions now. 32 As I have said, Ms Harrison’s statement addressed the point about what she had said to the claimant in the call before that exchange of emails. I remind myself that it must inevitably carry considerably less weight than evidence on oath. She said that she told the claimant that he was placing grievances against Ms Chwohary on a regular basis, and that she explained it could be seen as “a witch hunt and discrimination.” At paragraph 35 she said that she did not tell the claimant that what he was doing in pursuing a grievance was against the law and that he had to be very careful. She said that was untrue. 33 The issue as pleaded here was 2.2.2 that Ms Harrison said to the claimant that what he was doing in pursuing a grievance was against the law and that he had to be very careful. I find that what Ms Harrison was actually saying was that continually pursuing grievances could amount to, for example, harassment, which could be unlawful or even criminal. What she says on the contemporaneous email is consistent with the assertions in her statement. I consider it somewhat unfortunate that Ms Harrison got herself in a position where she was actively discouraging the claimant from pursuing future grievances. But two particular things are clear to me. First, she was not trying to warn the claimant off from pursuing the current grievance and, second, there was, in my judgment, simply no reason to conclude that her actions had anything to do with the claimant’s race or religion. Grievance meeting 23 January; Issue 2.2.8 34 The 23 January 2023 grievance meeting took place between the claimant and a Ms Chikowore of the respondent’s HR department, with a union representative and a note taker also present. The claimant set out his account of the events of 20 and 21 December. Minutes of the meeting were provided to the claimant on 27 February 2023. He responded on 1 March to say, “I have checked the meeting notes but there is missing information/added information from the notetaker.” He made a similar assertion by email on 29 March, complaining that the notetaker had expressed an opinion but not recorded what he, the claimant, had said. In neither of those emails did the claimant set out what he said was in fact missing from the notes. I do note in fairness to the claimant that he seems to have repeatedly requested the recording of the meeting and was never provided with that recording, nor was I ever provided with an explanation as to why he was not provided with the recording. Nonetheless, and it remained the case at the hearing before me, the claimant has failed to identify what he says is the inaccuracy in those notes. That is, of course, relevant to issue 2.2.8, which is phrased as “Not providing accurate minutes of the meeting held on 23 January 2023.” On the basis that the claimant has failed to identify what he says is inaccurate, I find that that particular complaint is simply not made out on the facts. Case Number: 3313490/2023 10 Issues 2.2.4 and 2.2.5 35 It was the claimant’s case that at a meeting on 20 February Ms Harrison asked him why he had refused to sign for a safety briefing that had taken place some days before that. The claimant said he had not refused to sign the briefing but had simply asked for clarification. (In my judgment, what he actually meant here was that he had, in fact, refused to sign but that he had a good reason for doing so, which he explained to Ms Harrison.) It was also the claimant’s case that Ms Harrison acknowledged his concerns and said she would consult the respondent’s HR Department. Mr Gongoro gave a very similar account to the claimant about the meeting. I accept the claimant’s account of the 20 February meeting. I should say, though, that despite the claimant taking issue with their accuracy, there do not seem to me to be any material differences between what is recorded in the meeting minutes and what the claimant says happened at the meeting, save that the minutes incorrectly record the date as 7 February, and in my judgment nothing whatsoever turns on that. 36 Afterwards, it is quite clear to me that no action was ever pursued against the claimant (i.e. for refusing to sign for, or for not accepting, the briefing) and he never heard anything more about it. Though the claimant said he was told by HR at some unspecified time that there may be an ongoing investigation, he later accepted that between February and October 2023 nobody said anything to him about it, and I find that that was the case. I accept the claimant’s case that he was never given a formal outcome, but I view that in the context that he was never told that he was going to be subjected to disciplinary action – in other words there was no outcome because there was no process. 37 On that basis, I now consider issues 2.2.4 (that on 20 February Ms Harrison invited the claimant to a fact finding meeting during which it was falsely alleged that he refused to accept a health and safety briefing) and 2.2.5 (that the respondent tried to build a false case against the claimant, i.e. for not accepting the briefing). My findings are that the claimant’s assertions here are palpably wrong. The “allegation” against him was not false. He himself accepted that he did not accept or sign for the safety briefing. His case really is that he had a good reason not to and, indeed, nobody seems to have disagreed with him on that point. Ms Harrison asked him about it and he gave an explanation. The claimant simply does not know whether other people were or were not subjected to the same treatment for refusing the safety briefing. And, as I have said, nothing ever came of it in any case. There is no reason, in my judgment, to conclude that the respondent’s actions here had anything to do with the claimant’s race or religion. Delay in the claimant being provided with a grievance outcome; Issues 2.2.6 and 2.2.7 38 I have already explained that I relied on Ms Harrison’s statement about this to establish the facts of the delay, but I was unable to gain any great assistance from the statement about what Ms Harrison would say were the reasons for the delay. So I reached what conclusions I could from the other evidence in the case. The claimant received the outcome of his grievance on 3 October 2023, 10 months after he submitted it. 39 Ms Hawkings ultimately had responsibility for the respondent’s HR Department. She agreed that, although there was no particular policy setting down time limits for dealing with grievances, nevertheless the claimant’s grievance took too long to deal with. That concession was well made in my judgment. On average, Ms Case Number: 3313490/2023 11 Hawkings told me that grievances took the respondent 72 to 78 days to deal with. I accept Ms Hawkings evidence that although she had ultimate responsibility for the grievance, she did not have day-to-day oversight of it, had she trusted her subordinates to deal with it and did not become aware of any problems until rather late in the process. She could not recall precisely when that was. The person with direct oversight of the claimant’s case was the respondent’s then Head of HR, who reported directly to Ms Hawkings. It is clear to me from the emails that the HR Head was dealing personally with the case, although not without others also being involved – the claimant was in touch with quite a number of people in the period between the meeting and his finally getting the grievance outcome. The HR head appears to have been dealing with the matter personally until around June, when some of the work was delegated to Ms Keeble. Ms Keeble was then taken off the case and then, at some point in early September 2023, Ms Harrison took it on. The reason for the claimant’s case being passed from pillar to post is not clear to me. No criticism was made by the claimant of Ms Keeble’s brief conduct of the case between June and August. She was asked to take some statements and did so despite some difficulties with the respondent’s HR system. During the course of her work she expressed her own concerns to the respondent’s HR Department about the delays in the case. 40 I accept Mr Angel’s evidence that he had some conversations with the claimant about the progress of his grievance. But, even on Mr Angel’s own evidence, these were informal conversations after meetings which had been about unrelated matters. I found Mr Angel’s evidence about the reasons for the delay to be vague. References to other people’s cases which needed to be decided did not , in my judgment, explain why the claimant’s case could not have been decided any earlier. Nor did I consider Mr Angel’s assertion that there had not been any undue delays to be credible. I accept the claimant’s case that he was never given any official reasons for the delay in dealing with his grievance. 41 The respondent’s case about the delays, as set out in a supplementary statement provided on the first day of the hearing and supplemented through oral evidence, was that the HR Head, who was no longer employed by the respondent, was incompetent and that any failures in the conduct of the claimant’s grievance were to be laid at her door. The HR Head was not called as a witness and was, in common parlance, chucked under the bus. The respondent suggested that her contract had been ended early because of her poor conduct of the claimant’s case and of other cases. What evidence there was about that was served very late on the claimant. There seemed to me no good reason why that evidence could have been produced earlier. The claimant had no realistic chance to examine it or respond to it and I therefore decline to draw any conclusions from it. 42 One further point to note however was that the claimant was asked whether the delays could not just have been because of a badly-run department (rather than because of his race or religion) and his answer was “I can’t really comment.” On this topic I would also add the evidence that was given to me by some of the other witnesses. Mr Diallo told me that he had made complaints on a few occasions about Ms Chwohary, which he said were never formally dealt with. He was just told, “OK, we will look at it.” Similarly, Mr Gongoro said that he had made complaints that had been investigated but that his case was closed in a way that was not satisfactory to him. Ms Keeble clearly experienced difficulties with the respondent’s HR Department and, in particular, unexplained delays in Case Number: 3313490/2023 12 her dealings with them. The same is apparent from paragraph 32 of Ms Harrison’s statement, which I do think it proper to take account of. 43 I take all of that into account when considering issues 2.2.6 and 2.2.7. Those are allegations that Ms Harrison unduly delayed progressing the claimant’s grievance and that the HR Head participated in delaying the progress of the claimant’s grievance. 44 I reject the suggestion that Ms Harrison delayed progressing the claimant’s grievance. It does appear to me that there was a delay in progressing the claimant’s grievance but that, on the balance of probabilities, it was the HR head, not Ms Harrison, who bore ultimate responsibility for that delay, given that Ms Harrison was only involved at the start and end of the process. On the basis of all the things I have already set out, there seems to me no reason to conclude that any of this was deliberate, let alone that it had anything to do with the claimant’s race or religion. Instead, it appears to be, in my judgment, a case of a department that was simply not functioning well; that affected other employees as well as the claimant. The grievance outcome; Issue 2.2.9 45 The grievance outcome was prepared by Ms Harrison when she became reinvolved with the case. She set out in a letter of 3 October that she was investigating the use of language by Ms Chwohary and the claimant’s allegation that Ms Chwohary had targeted him. She explained that she had taken account of witness statements and/or meeting notes relating to all of the people that I have named already as well as someone by the name of Khan. She said that she found that it was likely that Ms Chwohary had used the language that she was said to have used, including the use of the phrase “chauvinist pigs.” She rejected the suggestion, despite the use of the phrase “I respect you for your colour”, that there was religious hate and racial language used by Ms Chwohary. And she rejected the suggestion that Ms Chwohary had targeted the claimant, because the claimant failed to provide examples of that. She therefore substantiated, in her words, the grievance partially and went on to advise the claimant that he should participate in mediation with Ms Chwohary. 46 I asked the claimant in evidence why he said that not upholding the grievance was about his race or religion. He made what in my judgment was an unsubstantiated remark that Ms Harrison had discriminated against others. I was provided with simply no evidence about that whatsoever and I saw no reason why that evidence, if it existed, would not have been provided earlier. The claimant said that he had only learnt about this after service of the witness statements. That, in my judgment, is not credible given of course that it had been the claimant’s case that not upholding the grievance was an act of race and religious discrimination long before service of the statements. So what he learnt after service cannot have formed the basis of his claim. The claimant was unable in his evidence to identify any further reasons why he might have concluded that the failure to uphold the grievance was about his race or religion, let alone any reasons why I should conclude that. 47 Regarding the particular point in the list of issues at 2.2.9, the allegation was that the HR Head and Ms Harrison failed to uphold all of the claimant’s grievances and suggested mediation. That is less than half right. Ms Harrison did suggest mediation. I can see no reason whatsoever to conclude that the offer of Case Number: 3313490/2023 13 mediation was unreasonable or could reasonably be considered to have been detrimental to the claimant. Ms Harrision (not the HR Head) did as a matter of fact decline to uphold the grievance, but in my judgment it is wrong to describe that as a failure. I can see no reason to conclude that Ms Harrison’s ultimate conclusions were in any way unreasonable or unjustified on the basis of the evidence that she had heard. Taking all of that into account, I can see no reason whatsoever to conclude that this had anything to do with the claimant’s race or religion. Other complaints; Issue2.2.3 48 The claimant suggested that Ms Harrison declined to “step away” from the claimant’s grievance, which he had asked her to do because of her friendship with Ms Chwohary. There are two points to address here. First, the claimant did not in fact ask Ms Harrison to step away from his grievance, as he appeared to accept in his oral evidence. It might well be the case, as the claimant told me, that he only became aware after he received the outcome that Ms Harrison was dealing with the grievance (emails sent to him did not necessarily make clear that Ms Harrison was now deciding the issue, rather than merely getting hold of the outcome for him). But if he did not know that Ms Harrison was going to be dealing with his grievance then he cannot have asked her to step away from it. More to the point, there was simply no evidential basis for the suggestion that he did ask her to step away. The second point is the claimant’s assertion that Ms Harrison was friends with Ms Chwohary. The extent of the claimant’s evidence was that Ms Chwohary had told him and other staff members, none of whom gave evidence about this point, “Higher management is my friend” and that Ms Harrison’s name was one of two she had specifically mentioned. Ms Chwohary denied that she was ever Ms Harrison’s friend. The first time the claimant asserted this point was when he appealed against the grievance outcome. It may well be that Ms Chwohary made a comment about the management being her friend, but I accept her evidence that, in fact, Ms Harrison was not her friend. There is no reason, in my judgment, to conclude any of this issue 2.2.3 had anything to do with the claimant’s race or religion. 49 The claimant also complained that various meeting minutes were “tampered” with. In my judgment, there is simply no evidence of that whatsoever and I reject this suggestion . Grievance appeal; Issue 2.2.10 50 It was the claimant’s case that the HR Head and Ms Hawkings failed to acknowledge the claimant’s appeal against his grievance outcome, which he sent on 3 October, until 18 December 2023. That assertion is plainly factually correct (save that the eventual acknowledgement did not actually come from either of those two, but from a Ms Eastman in the respondent’s HR Department). I accept Ms Hawkings’ evidence on this, which was that she did not respond to the claimant’s email because, as part of the claimant’s union role he often “cc’d” her in to emails unnecessarily (i.e. the cc’ing, not the emails themselves, was unnecessary). She simply was therefore in the habit of not responding to all of the claimant’s emails. I was not offered any explanation for why the HR Head did not respond, though I have already drawn the conclusion that the HR department was not functioning well. Taking all of that into account, I can see absolutely no reason to conclude that the failure to respond over a period of some Case Number: 3313490/2023 14 two and a half months had anything to do with the claimant’s race or religion. Factual findings relevant to time limits 51 It is clear to me that although the claimant was a trade union representative, he had never had any direct involvement in tribunal proceedings. Equally, as he accepted, he was aware that there was such a thing as time limits in the Employment Tribunal. He did not check what those time limits were either using his own research or by asking others, whom he might have asked for help. In particular, he did not, as he told me, seek any help from the union. The reason for the delay in submitting the form, was, I accept, what the claimant told me – he was waiting for the respondent’s internal processes to be completed before initiating legal action. THE LAW Harassment related to race or religion 52 So far as is relevant, s 26 of the Equality Act 2010 (“EqA”) reads: 26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 53 The elements of harassment are therefore:53.1 Unwanted conduct53.2 Related to a protected characteristic53.3 With the purpose or effect53.4 Of violating dignity or creating an intimidating, hostile, degrading, Case Number: 3313490/2023 15 humiliating, offensive environment. Unwanted conduct 54 ‘Unwanted’ is essentially the same as ‘unwelcome’ or ‘uninvited’ (see Equality and Human Rights Commission’s Code of Practice on Employment, the “EHRC Code”, 7.8). Related to 55 Conduct that cannot be said to be ‘because of’ a particular protected characteristic may nonetheless be ‘related to’ it. The alleged harasser’s knowledge or perception of the victim’s protected characteristic is relevant but should not be viewed as in any way conclusive. Likewise, the alleged harasser’s perception of whether his or her conduct relates to the protected characteristic ‘cannot be conclusive of that question’. (Hartley v Foreign and Commonwealth Office Services UKEAT/0033/15/LA.) 56 In Carozzi v University of Hertfordshire 2024 EAT 169, the EAT emphasised that there is no requirement for a mental element equivalent to that in a claim for direct discrimination when considering whether conduct is related to a protected characteristic. There may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser. It gave the example of a person who unknowingly uses a word that is offensive to people who have a relevant protected characteristic because it is historically linked to oppression of people with that characteristic. There could be circumstances in which the use of the word would nonetheless amount to harassment applying the factors in S.26(4) EqA, notably the perception of the complainant and whether it is reasonable for the conduct to have the effect of violating his or her dignity. 57 However, the context in which the unwanted conduct takes place may still be important in considering whether it is related to a particular characteristic, particularly in cases where the conduct cannot be described as inherently racist. See for example Bakkali v Greater Manchester Buses (South) Ltd (t/a Stagecoach Manchester) 2018 ICR 1481, EAT. The Employment Tribunal had found that a particular remark was not direct discrimination as the remark had not been made because of the protected characteristic. Referring to this finding, the tribunal further concluded that the remark had not been related to race or religion or belief. Upholding that decision on appeal, the EAT considered that as the complaint of harassment was based on the same facts as those relied on for the direct discrimination complaint, the Tribunal did not err in referring to those findings. In concluding that the remark was not related to race or religion or belief, the Tribunal properly took account of the context in which the offending words were spoken. 58 At 7.10 the EHRC Code points out that the conduct does not have to be directed specifically at the claimant for it to be related to the protected characteristic. It gives the following example: during a training session attended by both male and female workers, a male trainer directs several remarks of a sexual nature to the group as a whole. A female worker finds the comments offensive and humiliating to her as a woman. She would be able to make a claim for harassment, even though the remarks were not specifically directed at her. Note that in this example although the words are not directed solely at the claimant, the words are on their face sexual; that may not be so in every case. Also, whether the conduct was directed specifically at the claimant may well still be relevant to consideration of the other Case Number: 3313490/2023 16 elements of harassment (53.3 and 53.4 above). Purpose and effect 59 There are two ways in which harassment may occur. First, cases where the conduct has the effect referred to s 26(1) – in other words where the person doing the conduct intended or meant for it to have that effect. Second, where, whatever that person’s intent, the conduct had that effect. The second sorts of case are referred to as “effect cases”. 60 In Pemberton v Inwood 2018 ICR 1291 Underhill LJ gave the following guidance for effect cases: … a tribunal must consider both … whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and … whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances … The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so’ 61 Later cases have made clear that (despite what might be thought to be the clear wording of the statue that the subjective and objective questions are simply two of the things that must be considered), where either the claimant does not in fact perceive the conduct to be have had the effect, or it is not reasonable for the conduct to be regarded as having that effect, harassment will not have taken place. So in other words if one or other (or both) of the subjective and objective questions are not answered in the claimant’s favour, the claim will fail, or at least will very likely fail. (See Greasley-Adams v Royal Mail Group Ltd EAT 2023 86 regarding the subjective question, and Ahmed v Cardinal Hume Academies EAT 0196/18 regarding the objective question. In the latter case the EAT found it difficult to conceive of a situation where conduct could have the proscribed effect even though it was not reasonable for it to have that effect.) 62 Although it is certainly possible in an effect case for harassment to have taken place even where none was intended, the intent will still be a relevant factor. For example, in Land Registry v Grant (Equality and Human Rights Commission intervening) 2011 ICR 1390 Elias LJ said that “when assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.” But lack of intent is not determinative, as illustrated by Driskel v Peninsula Business Services Ltd and ors 2000 IRLR 151, a case of harassment related to sex, where a manager’s remark that the complainant should attend her interview wearing a short skirt and a see-through blouse to increase her chances of promotion was flippant and not intended to be taken seriously, but still amounted to harassment – what was relevant was that the remark (whether flippant or not) undermined the complainant’s dignity as Case Number: 3313490/2023 17 a woman. Violating dignity etc. 63 In Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336, the EAT said (at para 22): Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct… it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. 64 A similar point was made by the EAT in Betsi Cadwaladr University Health Board v Hughes and others [2014] EAT 0179/13 (at para 12): The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence. 65 If the conduct did not have the purpose or effect of violating dignity, to amount to harassment it must have had the purpose or effect of creating an intimidating, hostile, degrading or offensive environment. Environment means a state of affairs. Though an environment may be created by a one-off incident, its effects must be of longer duration to come within what is now s 26(1)(b)(ii) (Weeks v Newham College of Further Education EAT 0630/11). In General Municipal and Boilermakers Union v Henderson 2015 IRLR 451 the EAT found that the incident relied upon was an act but not an environment. The incident – the claimant was shouted at over the phone – was not sufficiently serious to give rise to an environment. Procedural and evidential points etc. 66 By operation of s 212(2), something which amounts to a detriment for the purposes of the EqA does not include conduct which amounts to harassment. In cases where both direct discrimination and harassment are alleged, it will therefore usually be appropriate to consider first whether the conduct amounts to harassment and, if not, then to consider whether it amounts to direct discrimination. 67 S 136 of the EqA makes provisions about the burden of proof. If there are facts from which the Tribunal could decide, in the absence of any other explanation, that there was a contravention of the Act, the Tribunal must hold that there was a contravention, unless the respondent proves that that there was not a contravention. In the context of harassment, the authors of the IDS Manual (Volume 5, 33.90) take the view that s 136 will be of relevance when the Tribunal considers whether the unwanted conduct was related to the protected characteristic: Where the conduct complained of is clearly related to a protected characteristic — for example, where a claimant has been subjected to verbal abuse in race-specific terms — then the tribunal will not need to revert to Case Number: 3313490/2023 18 the shifting burden of proof rules at all. By contrast, where the conduct complained of is ostensibly indiscriminate — for example, where the claimant has been subjected to teasing and bullying for no apparent reason — the shifting burden of proof may be applicable to establish whether the reason for the treatment was his or her race. Before the burden can shift to the respondent, the claimant will need to establish on the balance of probabilities that he or she has been subjected to ‘unwanted conduct’ which has the ‘purpose or effect of violating [his or her] dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment’ for him or her. However, this, in our view, will not be enough to establish a prima facie case of harassment under S.26 EqA. The claimant clearly does not need to prove that the conduct is related to a protected characteristic because that would be no different from the normal burden of proof. Nevertheless, in our view, he or she needs to adduce some evidence to suggest that the conduct could be so related. Evidence that he or she is being treated differently from other employees who do not share his or her protected characteristic may be useful in this regard. Direct race discrimination 68 S 39 of the EqA says that an employer must not discriminate against an employee by (amongst other things) dismissing them or by subjecting them to any other detriment. There was no dispute here that the claimant was the respondent’s employee within the meaning the Act. Nor was there any dispute that the respondent would be liable under s 109 for any contraventions of the Act done by other employees (e.g. the claimant’s managers). Under s 13(1) EqA read with s 9, direct discrimination takes place where because of race a person treats the claimant less favourably than that person treats or would treat others. 69 By s 23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case. 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. In many direct discrimination cases, it is appropriate for a Tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of a protected characteristic (in this case, race). However in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the “reason why” the claimant was treated as they were (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285). 70 The protected characteristic need not be the only reason for the treatment, provided it had a significant influence on the outcome (Nagarajan v London Regional Transport [1999] IRLR 572, HL). The case law recognises that very little discrimination today is overt or even deliberate; people can be unconsciously prejudiced. A person’s motive is irrelevant, as even a well meaning employer may directly discriminate. 71 S 136 of the EqA also applies of course to direct discrimination. It requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but has nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another (Hewage above). The burden Case Number: 3313490/2023 19 of proof does not shift where there is no evidence to suggest the possibility of discrimination (Field v Steve Pye and Co (KL) Ltd [2022] EAT 68). Guidelines on the application of s 136 were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142 and the importance of these was recently restated by the Employment Appeal Tribunal in Field. I do not reproduce the thirteen steps of the guidance here, but I did take account of them. One important point to note is that the question is whether there are facts from which a Tribunal could decide… It is not sufficient for the employee merely to prove a difference in protected characteristic and a difference in treatment. Something more is required (Madarassy v Nomura International Plc [2007] EWCA Civ 33). Unfair or unreasonable treatment on its own is not enough (Glasgow City Council v Zafar [1998] IRLR 36). If the burden of proof does shift, under the Igen guidance the employer must prove that the less favourable treatment was “in no sense whatsoever” because of the protected characteristic. Because the evidence in support of the explanation will usually be in the possession of the employer, tribunals should expect “cogent evidence” for the employer’s burden to be discharged. Other points about the law 72 I have also taken account of the written submissions provided by the parties and, where appropriate, the cases that they refer to. 73 Given my conclusions below I do not set out the law on time limits here. CONCLUSIONS Harassment 74 I have found that Ms Chwohary said the following to the claimant “I respect you because of your colour, but you are all male chauvinist pigs.” “You don’t like me. I don’t like you. Simple. I don’t like you that’s the end of story. I hate you. Simple.” The unwanted conduct here was the second and third parts – no suggestion was made to me that the claimant was offended by “I respect you because of your colour”. Of course, the fact that the second and third parts – which I find to have been unwanted conduct – were prefaced with “I respect you because of your colour” is clearly relevant context. 75 Was the unwanted conduct related to race or religion? Despite the mention of the claimant’s colour, the unwanted conduct here – in other words, that which the claimant was offended by – in my judgment had nothing to do with the claimant’s race. If anything, the fact that the second and third parts were prefaced with the reference to respecting the claimant because of his colour was an indication that they had nothing to with his colour (and so race) – the reference to respect was, I find, meant sincerely and it was obvious that it was meant that way, both subjectively, to the claimant, and objectively. 76 The issue of whether the unwanted conduct was related to the claimant’s religion is more nuanced. The claimant took offence at the second part of the comments because of his religion. But that, in my judgment, is not on its own sufficient to show that the conduct was related to his religion. Clearly, that would be the case in very many cases one might think of. One example the claimant gave in the course of submissions, which sadly is a real life example as I understand it, would be if a pig’s head had been left on a mosque roof. But the point about that is, if it Case Number: 3313490/2023 20 had happened in an employment context, it would have been a “purpose” rather than an “effect” case. In other words, it was very obviously done “because of” the victims’ religion and so was very clearly “related to it”. That example therefore is distinguishable from the present case in my judgment. 77 On the basis of my factual findings, although offence was taken because of the claimant’s religion, the remarks were not made because of the claimant’s religion – Ms Chwohary simply did not have the claimant’s religion in mind. As I have made clear above, however, conduct may still be related to religion even if it is not done because of religion. Was it related in this case? I take account of Ms Chwohary’s knowledge and perception of the comments, whilst bearing in mind that her knowledge and perception are not conclusive of whether the comments were related to religion. Clearly Ms Chwohary knew the claimant’s religion. She followed the same religion. She did not accept that simply calling someone a pig could amount to religious harassment, but on the other hand she would have been aware of the need for sensitivity. What I have already described as a stock phrase had nothing, in her mind, to do with the claimant’s religion. She was complaining about sexism. The context is particularly important here, in my judgment. It was a clear and unambiguous complaint of sexism. It is not the case that there was, for example a gratuitous religious insult thrown in, and I do consider it significant that the comment was addressed to a number of people, some of whom did not share the claimant’s religion. The pig comment was not related to the claimant’s religion; it simply had nothing to with it. If the second part of the remarks was not related to religion, clearly nor was the third. 78 Strictly, that is enough to determine the harassment complaint – the unwanted conduct was not related to race or religion. I do however consider that it is appropriate to go on to make findings about whether the other elements of harassment were made out in this case. (In particular, in the event that it was artificial to separate the remarks into three parts, then it might be said that they must have been related to race given the clear mention of the claimant’s colour.) 79 When I consider the question of purpose and effect, it does seem to me appropriate to consider the purpose/effect of all three things Ms Chwohary said together, since all three things were said almost together. 80 On the basis of my findings so far, the remarks did not have the required purpose. Ms Chwohary was making a complaint that the claimant and others were being sexist (albeit in robust terms), which she followed by saying that she and the claimant disliked/hated one another. The remarks were clearly made in a flash of anger rather than being calculated. In the context, the intent may have been to insult, but that is not the same as the remarks having the purpose of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. On the facts of this case, any intended effects were not “effects which [were] serious and marked” to adopt the words used in the Betsi Cadwaladr case. 81 As to whether the conduct instead had the effect required by s 26, I do accept that the use of the word “pig” could, in some circumstances, clearly have the effect of violating the dignity or a Muslim person. I cannot accept however that any use of that word, even where it is in the overall context of being included in an insult, will always do so. By operation of s 26(4), I must take into account the claimant’s perception, the other circumstances of the case, and whether it is reasonable for the conduct to have the required effect. I have accepted, as I say, albeit with some Case Number: 3313490/2023 21 hesitation, that the claimant was genuinely upset by the entire encounter. But it seems to me that the male chauvinist pig comment was not the only cause for his upset. I find that the comments did not cause the degree of hurt that would be required to amount in law to a violation of the claimant’s dignity. Even had the remarks created an environment, the environment was not intimidating, hostile, degrading, humiliating or offensive. On the facts of this case, the actual effects were not “effects which [were] serious and marked” to adopt the words used in the Betsi Cadwaladr case. I say that taking the comments in all their context, in particular the circumstances in which they were said – in anger, by one woman to a group of men – and the fact that the part of the comments the claimant found offensive was a stock phrase which in its common use, and in the way Ms Chwohary in fact used it, has nothing to do with religion (or race). For a similar, reason I do not consider it reasonable for the conduct to have had the required effect. Male chauvinist pig is a standard phrase in relatively common usage even if the claimant did not understand that. 82 Also, given the one-off nature of the incident, whether one is considering purpose or effect, since the remarks did/could not violate dignity, they could only amount to harassment if they created an environment which was intimidating etc. In my judgment, they cannot have done so in this case. They were remarks made by one woman to a group of men, in, as I have said, a flash of anger. They did not create an ongoing state of affairs. 83 Taking all of that into account I conclude that the unwanted conduct did not have the effect of violating the claimant’s dignity and it did not have the effect of creating an intimidating hostile, degrading, humiliating or offensive environment for him. For all of those reasons then the complaint of harassment fails. The applies whether the three parts of the comment are considered in isolation or cumulatively. 84 Since the claimant has not, on the balance of probabilities, established that he was subject to unwanted conduct with the required purpose or effect, the burden of proof did not shift to the respondent in this case, but even if it had done, for the reasons set out above I would have found that the respondent had proven that the conduct was not related to the claimant’s race or religion. Discrimination 85 Issue 2.2.1 concerns the comments that I have just dealt with as part of the harassment complaint. I found that those comments were made. They were not, in my judgment, less favourable treatment. The claimant was self evidently treated in the same way as a number of comparators who were actually present. Further, I found that the comment was not made because of the claimant’s race or religion. For all of those reasons 2.2.1 is not made out as an act of direct discrimination. 86 As to the remainder of the issues, 2.2.2 to 2.2.10, I have already set out above to what extent I found that these did or did not happen. For those that did happen, whether viewing them individually or cumulatively, there is simply no reason in my judgment or to conclude that any of that treatment was (or even might have been) because of the claimant’s race or religion. Looking at it another way, there was no reason to conclude that the claimant was treated less favourably than the hypothetical comparator on which he relied would have been treated. Indeed there was every reason to conclude that others received similar treatment. The respondent’s HR department was particularly prone to delays which affected a number of people not just the claimant. Case Number: 3313490/2023 22 87 The burden of proof does not shift in this case, in my judgment. I find that whatever treatment there was had nothing whatsoever to do with the claimant’s race or religion and I find that a tribunal could not properly conclude that the claimant was treated less favourably because of his race or religion. The fact that his original complaint (i.e. the grievance) was about race/religion cannot change that position in my judgment. Nor can the fact that the claimant was treated unreasonably. The authorities make very clear that unreasonable treatment alone cannot shift the burden of proof. For all of those reasons, none of the remainder of the direct discrimination claims succeed Time limts 88 It is strictly unnecessary therefore for me to make findings about time limits, but I will say this. It does seem to me that points 2.2.1 to 2.2.10 as set out in the list of issues could all properly amount to a series of events. There is a clear factual nexus between them. Numbers 2 to 10 are all about number 1 to some degree or another. 89 Even if I had not found that, I would have found that it was just and equitable to extend time in this case. I accept that the claimant has no good explanation for the failure to make some of the complaints in time beyond that he was waiting for the internal processes to complete, but I regard that in itself as a good explanation in all of the circumstances of this case. Of course, I am not bound by the line of authorities about unfair dismissal time limits which generally say that waiting for an internal process is not a reason to extend time limits. I am not bound by that line for the very good reason that unfair dismissal claims are subject to an entirely different statutory test. Although I would have accepted that there is some degree of prejudice to the respondent in the witnesses, particularly Ms Chwohary, having difficulties in remembering events, that would have been cured to some degree by the fact that the witnesses did give relatively contemporaneous accounts to the respondent that were recorded, and I would have balanced that against the potential injustice to the claimant in not having his claims heard. So, had it been necessary, I would have extended time limits in this case. Final conclusion 90 Having made the findings I have, my judgment is that the complaints of direct race and religious discrimination are not well founded and are dismissed, and the complaints of harassment related to race and religion are not well founded and are dismissed. 91 Finally, my apologies to the parties, and particularly to the claimant, for the time it has taken me to prepare these reasons. The request for reasons reached me near the start of an extended period away from work and upon my return I had a considerable volume of other work to deal with. Case Number: 3313490/2023 23 APPENDIX Edited Version of the List of Issues[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 17 Jul 2023 may not have been brought in time.1.2 Were the complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the complaint made to the Tribunal within three months (plus early conciliation extension) of the act to which the com-plaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the complaint made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, was the complaint made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why was the complaint not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circum-stances to extend time?[2]Direct race and/or religious discrimination (Equality Act 2010 section 13)2.1 The claimant describes his race as Asian Pakistani.2.2 Did the respondent do the following things:2.2.1 Ms TB, Revenue Protection Inspector, said to the claimant and to other employees on 21 December 2022, “I respect you because of your colour, but you are all male chauvinist pigs” and “I hate you.” Reference to pigs was an insult to the claim-ant as a Muslim.2.2.2 Ms Louise Harrison, Operations manager, said to the claimant on 9 January 2023, that what he was doing in pursuing a grievance, was against the law and that he had to be very careful.2.2.3 Ms Harrison did not “step away” from the claimant’s grievance as he requested her to do because of her close relationship with Ms TC.2.2.4 On 20 February 2023, Ms Harrison invited the claimant to a fact-finding meeting during which it was falsely alleged that he refused to accept a health and safety briefing from his Super-visor, Mr Karim Khan.2.2.5 The respondent tried to build a false case against the claim-ant. Case Number: 3313490/2023 242.2.6 There was undue delay by Ms Harrison in progressing the claimant’s grievance lodged on 6 January 2023.2.2.7 [The Head of Human Resources], participated in delaying the progress of the claimant’s grievance.2.2.8 Not providing accurate minutes of the meeting held on 23 Jan-uary 2023.2.2.9 [The Head of HR] and Ms Harrison in the grievance outcome dated 3 October 2023, failed to uphold all of the claimant’s grievances, and suggested mediation.2.2.10 [The Head of HR] and Ms Susan Hawkins, Human Resources Director, failed to acknowledge the claimant’s appeal against the grievance outcome sent on 3 October, until 18 December 2023.2.3 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 be-tween their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant has not named anyone in particular who he says was treated better than he was and will rely on a hypothetical comparator, namely someone who is a Revenue Protection Inspector, not of the claimant’s race and religion..2.4 If so, was it because of the claimant’s race and/or religion?2.5 If so, what is the respondent’s explanation? [EJ Dick’s note: It is unclear why this question appeared in the list of issues, but given the answers to the preceding questions, nothing turns on it.][3]Harassment related to race and/or religion (Equality Act 2010 section 26)3.1 Did the respondent do the following: 3.1.1 Ms TB, Revenue Protection Inspector, said to the claimant and to other employees on 21 December 2022, “I respect you because of your colour, but you are all male chauvinist pigs” and “I hate you.” Reference to pigs was an insult to the claim-ant as a Muslim.3.2 If so, was that unwanted conduct?3.3 Did it relate to race and/or religion? Case Number: 3313490/2023 253.4 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. Remedy […] Approved by: