Mr S Sarkar v Imperial College Healthcare NHS Trust: 6003820/2024
EMPLOYMENT TRIBUNALS
Case No 6003820/2024
Between
Mr S SarkarClaimantImperial College Healthcare NHS TrustRespondent
Before
Employment Judge NicolleIn person for claimantMs M Martin (instructed by counsel.) for respondentDate 24 September 2025
JUDGMENT
[1]The claims of direct disability discrimination pursuant to section 13 of the Equality Act 2010 (the EQA) were withdrawn by the Claimant on 16 September 2025 and are therefore dismissed.[2]The Claimant’s claims of direct sex and race discrimination pursuant to S 13 of the EQA, failure to make reasonable adjustments on account of disability pursuant to S 20 and 21 of the EQA and harassment on account of race pursuant to S 26 of the EQA fail and are dismissed.
REASONS
[3]Oral reasons were given to the parties. Either party may request written reasons within 14 days of this judgment being sent to them. Case No: 6003820/2024 Claimant: Mr S Sarkar Respondent: Imperial College Healthcare NHS Trust FULL MERITS HEARING AT LONDON CENTRAL Heard between 16, 17, 22, 23 and 24 September 2025 Before: Employment Judge Nicolle For the Claimant: in person. For the Respondent: Ms M Martin of counsel.[1]The claim of direct disability discrimination pursuant to section 13 of the Equality Act 2010 (the EQA) was withdrawn by the Claimant on 16 September 2025 and is therefore dismissed.[2]The Claimant’s claims of direct sex and race discrimination pursuant to S13 of the EQA, failure to make reasonable adjustments on account of disability pursuant to S 20 and 21 of the EQA and harassment on account of race pursuant to S 26 of the EQA fail and are dismissed.[3]Oral reasons were given to the parties. The Respondent requested written reasons which are set out below.
The Hearing
[4]Whilst the hearing was hybrid with the exception of Ms Veronica Gutu, Theatre Nurse, (Ms Gutu) all witnesses gave their evidence in person. There was an agreed bundle comprising of 725 pages. I was referred to key documents in a reading list. Witness evidence[5]The claimant gave evidence and had supporting witnesses namely Ms Evelyn Kawonza, Theatre Rota Coordinator, Main Theatres at Charing Cross Hospital (Ms Kawonza) and Ms Gutu. Ms Kawonza and Ms Gutu are black. Their witness statements did not address the matters germane to the Claimant’s claim but rather set out their own issues primarily their management by Mr Robson.[6]Mr Mark Robson, Deputy General Manager for Theatres, Anaesthesia, Pain and Pre-Assessment in the Surgery and Cancer Division (Mr Robson), Mr Daniel Martin Victor Pinnick, General Manager for Specialist Surgery (Mr Pinnick) and Ms Amanda Jane Orchard, self-employed consultant (Ms Orchard) gave evidence on the respondent’s behalf. Many of Ms Orchard’s findings from her investigation would not necessarily be seen as consistent or supportive of the Respondent’s position and I will return to that. The list of issues[7]It became apparent within 30 minutes of his cross examination by Ms Martin that the Claimant was uncertain as to scope of the list of issues. I paused the cross examination to clarify with the Claimant the exact basis upon which his claims were being pursued. He agreed at 15:17 on 16 September 2025 that the claims of direct disability discrimination were withdrawn. He did, however, say that he intended to pursue allegation that Mr Robson had taken too long to provide him with a lumber support chair. Having discussed the position with the parties I considered that it was more appropriate that this allegation be pursued as a failure to make a reasonable adjustment. Ms Martin accepted that a PCP would potentially constitute a requirement to sit for prolonged periods during the working day with the substantial disadvantage potentially being that the Claimant’s back condition was exacerbated. The Claimant confirmed that his claim for harassment related to the sole protected characteristic of race.[8]The Respondent’s solicitors updated the list of issues and provided a copy to the Tribunal and the Claimant on the evening of 16 September. I clarified with the Claimant the following morning that he had read that document and he agreed that it constituted the finalised list of issues. I was, however, concerned as the hearing progressed that the Claimant sought to pursue issues which were not within that list of issues. I advised him that the Tribunal’s decisions would be confined to the list of issues. Jurisdiction on the grounds of time[9]The Respondent contends that the claims are out of time and it is relevant that the Claimant undertook ACAS early conciliation between 4 April and 16 May 2024 and issued the claim form on 13 June 2024. He had raised a grievance on 5 January 2024. The Respondent says that any acts or omissions prior to 5 January 2024 are prima facia out of time.
Findings of Fact
[10]The Claimant self-identifies as Bangladeshi. Disability[11]In relation to disability he relies on a back condition. The Respondent accepts that this constitutes a disability and that they had actual knowledge of it from October 2023 which is the material period of time for the purposes of this claim. The Tribunal was referred to a monitoring form completed by the Claimant on 14 November 2022 when he commenced employment with the Respondent. On that form he said that he did not have a disability and therefore did not require any adjustments. This was potentially inconsistent with the Claimant’s evidence that his back condition had lasted for approximately 10 years. He sought to explain that discrepancy by saying that he thought that the reference to disability on the monitoring form involved a clinical question of being disabled as opposed to an arguably narrower definition of disability for the purposes of s.6 of the EQA. Nevertheless he said that his back condition had not fundamentally changed during the last 10 years and that he periodically experiences flare ups one of which was in early October 2023. The Claimant’s job description[12]There was a dispute as to which job description applied and the Claimant provided an alternative version. However, I consider that the material provisions regarding location of work are to all intents and purposes the same. The job description the Respondent says applied refers to location of work as being Trust wide whilst that which the Claimant says applies refers to it as being Hammersmith, Charing Cross and St Mary’s, the three hospitals which the Respondent operates. It is also relevant that the job descriptions provide that as part of the role the Claimant should provide cross site support to enable cooperation within and amongst teams in other words there may be occasions when someone notionally based at say Hammersmith is required to carry out their duties at Charing Cross or St Mary’s. Diary entry dated 1 June 2023[13]The Tribunal was referred to a diary entry dated 1 June 2023. It involves a record for PDR for selected direct report and the Respondent says that it would have been completed by Mr Robson and entered on 14 June 2023. The Claimant says that he is sceptical as to whether that was done and that it may have been entered in anticipation of the Tribunal proceedings. I do not consider that anything material turns on this as the Respondent accepts that a formal PDR was not undertaken for the claimant. Claimant not given the opportunity to undertake a management course[14]The Claimant says that he was deprived of the opportunity of undertaking a management course. In an exchange of emails between the Claimant and Mr Robson on 9 August 2023 the Claimant said: “Thank you for your time and support regarding the matter we discussed yesterday I have attached the course brochure I talked with you yesterday”. Mr Robson said that the management course takes 18 months to complete and typically involves one day a week of working time over that 18 month period. He said that there are business constraints on the number of team members who can attend the training at any given time given the requirement for the hospital to have a full complement of employees performing the rota administration role which the Claimant and two of his colleagues undertook.[15]The Claimant referred to a series of emails with Daniel Chin (Mr Chin) regarding his attendance on the management course, and specifically referring to a Management Apprenticeship Information Session. He says, for example, in an email of 9 August 2023 that he had spoken with his boss i.e. Mr Robson regarding the course that he was interested in. The Claimant sent a further email to Mr Robson regarding the management course on 22 September 2023, and he said: “Following our earlier discussion about the study programme I am interested in as part of my personal development please find filled application form attached to this email”.[16]Mr Robson did not respond to that email. He did not approve the management course for any of the three coordinators that year.[17]The Claimant asserted that he chased or enquired of Mr Robson at their Thursday meetings as to the progress of the PDR.[18]Mr Robson said that as a matter of practice he does not complete formal PDRs and that the Claimant same as other two team members. He prefers informal performance review meetings and said that he had one with the Claimant on 1 June 2023. The Claimant’s request to work from home (WFH)[19]The Claimant was off work in early October. He said in an email to Mr Robson on 9 October: “Just to let you know that I am back today as planned unfortunately pain is not completely gone away may take more time just checking if I could do in the middle of the week Wednesday WFH for the time being only please”. Mr Robson responded later that day: The “Happy for you to work from home this Wednesday let’s discuss” and referred to a team meeting the following day.[20]The following morning the Claimant responded to Mr Robson to include saying: “I am not a fan of WFH but I believe it may help to avoid rush hour public transport and don’t wish for more than month. Don’t worry, if you come today then we can talk about few things may help me as well, things like footrest”. It is clear from this email that the Claimant’s request, at that stage, for WFH was solely to avoid public transport on the basis of his back condition. The Claimant argued that the overarching position needs to be considered to include other conditions. However, what he says in this email is only capable of one interpretation, that the request was made because of his back condition, particularly in when he had just returned from a week’s sick leave attributable to his back complaint.[21]On 10 October Mr Robson sent the Claimant an email which included his saying: “Happy to approve for this Wednesday, if you would like to continue Wednesday we will need to submit an agile working request to the TAPP workforce panel, the panel meets every Monday. I have attached the form for your completion if you would like to continue WFH on a regular basis”.[22]There was a further email from the Claimant to Mr Robson on 10 October when he said: “As I mentioned earlier this is only temporary as I still feel stiffy”. In other words the only interpretation is that he is request to WFH was solely because of his back condition.[23]Mr Robson did not complete a formal return to work meeting with the Claimant on 10 October 2023 and he accepts that was an oversight.[24]There was some uncertainty regarding WFH as to exactly when the Claimant made a request. He was very specific in response to a question in cross examination that the meeting with Mr Robson took place on Thursday 12 October in the General Manager’s office at Charing Cross. However it transpired that the Claimant was not at Charing Cross on 12 October, nor on Thursday 19 October when he was on annual leave. He then said it make have taken place on 26 October but again he was not at Charing Cross that day. Ergonomic chair[25]The Claimant considered that he required a specialist ergonomic chair as a result of his back condition. There were various teams messages regarding this to include that from Mr Robson on 12 October 2023 in which she said: “I will be getting you a new chair I hear”. He advised the Claimant that he would need to see the one on the 13th floor at Charing Cross to test it prior to an order being made. The Claimant says there were no suitable chairs and it does not appear that any of them were specialist ergonomic chairs. Relevant emails/teams messages in November 2023[26]There were further exchanges of emails between the Claimant and Mr Chin regarding the Management Apprenticeship Scheme to include that on 3 November 2023 when the Claimant said he was off sick, had returned and would remind his boss next week.[27]On 7 November 2023 there was an exchange of messages on Teams which referred to a footrest being provided for the Claimant. However, there was no progress in ordering and ergonomic chair with there being something of an impasse between Mr Robson and the Claimant as to the process to be followed and where responsibility rested. Mr Robson’s position being that he could not order the chair without knowing exactly which one to order. The Claimant’s evidence is that whilst he had self-referred to occupational health in respect of physio appointments he had not made a self-referral regarding the provision of an ergonomic chair. The Claimant says that it was Mr Robson’s responsibility as his manager to ascertain what chair would be appropriate, and to order it, or if necessary, make a management referral of him to OH. Staff roster arrangements[28]I refer to a document which appeared at page 287 in the bundle regarding the roster arrangements for staff. That includes cover being provided amongst the rota coordinators for annual leave and may involve a requirement for one of the rota coordinators to attend a different site. The Claimant’s communication with OH on 11 December 2023[29]On 11 December 2023 an email was sent from Aisha Auma in OH referring to a conversation which had taken place that day regarding the Claimant’s back pain during which he attributed his back pain to poor chair support. Various recommendations were made to include management to order a suitable chair through eprocurement. In an attached document Ms Auma said that his line manager has ordered as suitable chair, not yet arrived, he is chasing this up and suggested that the Claimant undertakes a work-based stress assessment which he has not completed.[30]It was not until 4 January 2024 that the Claimant forwarded this email to Mr Robson. The Claimant says it was sent as a reminder. His evidence being that it was Mr Robson’s responsibility not his and that he was “just an admin person and Mr Robson has clinical responsibility”. So in effect the Claimant abrogated responsibility for ascertaining the correct chair. Arrangements for 3 January 2024[31]The Claimant and his colleague Heidi Chakravatti (Ms Chakravatti) had exchanged teams messages on 3 January 2024 regarding arrangements for the following day. The Claimant says in one of those messages, me and Ms Chakravatti were checking earlier Hopper (a minibus which transports employees between the Respondent’s various hospital sites) time tomorrow from Hammersmith to St Mary’s. The events on 4 January 2024[32]The immediate events which triggered the Claimant’s grievance concern his reaction to events on 4 January 2024. The Claimant took exception to include that he was being inappropriately asked to cover at a different hospital, that uncertainty existed from Mr Robson regarding the arrangements for his travel between sites i.e. St Mary’s (see did not attend this St Mary’s that day) and primarily what he contends to be Mr Robson’s belittling comments regarding Ms Chakravatti’s experience and that he was being asked to travel with her on the Hopper to St Mary’s in circumstances where his relationship with her had broken down from October/early November 2023. He also took exception to what he says is Mr Robson’s suggestions that he should have lunch with her.[33]Mr Robson denies suggesting that the Claimant and Ms Ms Chakravatti should travel together to St Mary’s on 4 January 2024. He denies repeatedly asking or suggesting to the Claimant that he should have lunch with Ms Chakravatti. Further email from the Claimant to Mr Chin on 5 January 2024[34]On 5 January, the Claimant emailed Mr Chin regarding the management apprenticeship programme and said that it looked like Mr Robson was not helping him. The Claimant’s grievance dated 5 January 2024[35]The Claimant submitted a grievance to Ann Hall on 5 January 2024, to include: “I was forced yesterday to travel together and have lunch with colleague who refused to talk to me earlier and being rude”. The Claimant accepted in cross examination that as a matter of fact he did not travel with Ms Chakravatti on 4 January and nor or at any time from October 2023 onwards did he have lunch with her. He therefore accepts that the use of quote forced” was incorrect and should have read “I was asked yesterday”. I consider there is a material distinction and the impression created by the Claimant does not reflect what took place.[36]The Claimant sets out various other matters to include generic contentions of direct discrimination in relation to agile working and being victimised and discriminated against by Mr Robson. He said: “Whether this is a form of racial discrimination and how it aligns with Trust policy due to this sort of misconduct and unlawful treatment, now I have been suffering from work related stress, anxiety and becoming mentally unsettled, getting demotivated, frustrated and helpless at work. He concludes by saying that the conduct he had experienced was “absolutely disgraceful and unlawful” The Claimant’s email of 8 January 2024[37]In an email of 8 January 2024, the Claimant said that he has been having back pain because support been provided had been provided along with some work-related stress and anxiety. Ergonomic chair ordered[38]It was not until 8 January 2024 that Mr Robson ordered the ergonomic chair as confirmed in his email to Ms Nouri Sepedeh. The Claimant’s fit note of 12 January 2024[39]The Claimant’s fit note dated 12 January 2024 referred to work related stress. It did not actually include any reference to his back condition. He said in his evidence that he also referred to his back condition. He was signed off as being unfit for work between 8 and 18 January 2024. The Claimant submits an agile working application on 22 January 2024[40]It was not until 22 January 2024 that the Claimant submitted the agile working application. It referred to a request for Thursday as opposed to the original Wednesday. He says that it related to child care and dropping his child off when his wife would not be available. It does not make any refer to back pain whilst the original application in October related solely to his back condition.[41]Mr Robson strongly refutes an allegation that he asked the Claimant not to complete a flexible working request. The Claimant attends a grievance investigation meeting with Danny Humphreys on 28 February 2024[42]The Claimant attended a grievance investigation meeting with Danny Humphreys on 28 February 2024. I refer to very selective extracts. The Claimant says that on the 4 January he was attacked by Ms Chakravatti and Mr Robson in connection with arrangements for travel between Charing Cross and St Mary’s by the Hopper. He contended that Mr Robson asked: “Do you know how long she has been working as a rota coordinator in the Trust”. He considered this to be belittling. He referred to being “really pissed, literally speechless, humiliated, traumatised, insulted and it being bullying behaviour”. Ergonomic chair delivered on 13 March 2024[43]It was not until 13 March 2024 that an ergonomic chair was delivered. It was a Skye-High Nurses Station chair but unfortunately it was not suitable.[44]The Claimant received advice and recommendations from Jennifer Fraser, back care adviser, and part of OH, in a letter of 1 May 2024 regarding his workstation configuration and an orthopaedic chair with product details. That chair was delivered on 5 July 2024. Mr Humphreys’ investigation report dated 10 May 2024[45]In summary Mr Humphreys concluded that the claimant had provided no evidence that Mr Robson had refused a flexible working request. He considered that the delay of a month in ordering the chair was unacceptable. He considered that there had been a failure to provide the PDR in accordance with Trust policy and that it was reasonable for the Claimant to feel mismanaged in this respect. He concluded that the email exchanges he had viewed between Mr Robson and the Claimant showed Mr Robson to be kind, compassionate and flexible regarding the Claimant’s sickness and need to work from home. Meeting between the Claimant and Dan Pinnick, general manager for specialist surgery (Mr Pinnick) on 6 June 2024[46]Mr Pinnick gave the Claimant feedback regarding the grievance and set out his findings and they are set out in a letter of that date. He partially upheld the allegation concerning a comment made by Mr Robson regarding how long Ms Chakravatti worked for the Trust and made various recommendations. The other allegations were not upheld but ultimately these are background rather than germane to my determination of the issues. The Claimant’s email to Sophie Weatherhead of 7 June 2024[47]The Claimant expressed his dissatisfaction with the outcome and referred to a flawed investigation, evidence being purposely ignored, that he felt bullied, discriminated against and humiliated. He said the report was biased and lacked credibility. He said: “This is the joke of the year”. He said the Trust funded institutional racism and got away with it. He attached materials relating to what he says is institutional racism within the NHS. The Claimant’s appeal dated 18 June 2024[48]The Claimant appealed against the grievance finding in a letter dated 18 June 2024. That appeal was considered by Julie Oxton, Divisional Director of Nursing Surgery and Cancer Division (Ms Oxton). In a letter dated 23 July 2024 she upheld the decision of the original panel.[49]The Claimant remained dissatisfied and this included him saying in an email to Ms Oxton on 25 July 2024 that he had been suffocated by panel members asking irrelevant questions and totally ignored or failed to talk about the points he mentioned in his appeal letter. He referred to unprofessional and unlawful behaviours. The Claimant approaches his MP[50]The Claimant felt so strongly that he approached his MP Karin Smith, MP Minister of State for Health, and she sent a letter on his behalf on 13 September 2024 to the Right Honourable Sir Stephen Timms MP to include reference to generic racial discrimination and disparities within the NHS. Email from Fiona Percival to Kevin Croft, Chief People Officer (Mr Croft) of 4 February 2025[51]In view of the above and concerns raised Fiona Percival, divisional Director of People, Women’s Cardiac, Clinical Support and Sexual Health Services, in an email of 4 February 2025 to Kevin Croft and others she said: “That it appears that the investigation, for a variety of reasons, failed to fully understand the complaints. This led to incorrect terms of reference being set and consequently, an inability to make proper and factual findings, including through the appeal. She said: “We have not handled this correctly and to look at how we might be able to resolve this with him”. Amanda Orchard’s (Ms Orchard) investigation[52]A further investigation undertaken by Ms Orchard as an independent investigator. That included her interviewing various individuals to include the Claimant on 17 March 2025. There are detailed transcripts and I refer to them briefly.[53]Ms Martin took me to page 353 and an exchange regarding the Claimant’s relationship with Ms Chakravatti. The Claimant said: “I will tell you if we had a problem, we would not agree to go to St Mary’s to get the handover, so we had an OK working relationship”. She further referred me to page 355 and the Claimant saying: “It is my lunch I’m a grown-up man, lunch with that particular person so that’s a clear act of harassment, a grown up man being asked to have their lunch with a particular person if it was an entire team my other colleague that’s fine it was not it was all about Heidi”.[54]The Claimant was provided with the transcript of the above interview which was automatically generated. He did not have any contemporaneous issues with it when it was provided to him by Ms Percival on 18 March 2025. He said he had missed the above rotations and that it must have been a mistake in the automatic generation of the document. I consider that would be surprising given the way voice recognition and the automated production of written material works. This does not represent an obvious typographical error. Nevertheless, to the extent to which there is an arguable inconsistency with the Claimant’s subsequent statements I do not place particular reliance on this in assessing his credibility. Independent review undertaken by Ian Bateman, Deputy Chief Operating Officer (Mr Bateman)[55]An independent review was led by Mr Bateman. A lot of documentation was generated. He made various criticisms to include:• at 2.9 that that the taken in the appeal hearing was unnecessarily adversarial in places; and• a failure to identify and interview various individuals. Ms Orchard’s report dated 15 July 2025[56]Ms Orchard was critical of the approach the Respondent had taken but ultimately did not find that there was evidence that the Claimant had been discriminated against on account of his race or sex. She considered that there had been unreasonable delay in the provision of the ergonomic chair.[57]Ms Orchard was very critical of the approach the Respondent had taken and that the original grievance report was not fit for purpose. She was particularly critical of Mr Robson to include saying that his recollection of events was “minimal”. She went as far as to say that there were “concerns regarding his probity”. I consider that statement to be surprising. It is relevant that Mr Robson found the process, to include two other grievances being brought at a similar time against him, traumatic and this had a profound effect on his mental wellbeing. I do not consider that there is any evidence which goes to his probity and consider that he gave his evidence in a way which was creditable. As such I find it surprising that Ms Orchard made a serious allegation of a lack of probity. It is unnecessary for me to set out more detail in relation to the conclusions reached by Ms Orchard. Outcome letter from Mr Croft to the Claimant of 1 August 2025[58]An outcome letter was sent to the Claimant by Mr Croft on 1 August 2025 setting out various findings to include that the Claimant had been treated unfairly but not on account of race. He said that Mr Robson’s actions breached the flexible working policy. He found no evidence of sex discrimination. He said that there had been a delay in the provision of the ergonomic chair. The Law Time limit for discrimination claims
The Law
[59]S123 of the EQA provides: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[60]Extension of time under s123 (3) is the exception rather than the rule Robertson v. Bexley Community Centre [2003] IRLR 434. Section 33 of the Limitation Act 1980[61]The checklist of factors in s.33 of the Limitation Act 1980 is a useful guide of factors likely to be relevant, but a tribunal will not make an error of law by failing to consider the matters listed in s.33 provided that no materially relevant consideration is left out of account: Neary v Governing Body of St Albans Girls’ School [2010] ICR 473. Section 33 requires the court to take into account all the circumstances of the case, and in particular the factors set out at s.33(3). Those factors which are potentially relevant to the claim are:(a) the length of, and reasons for, the delay by the Claimant;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the promptness with which the Claimant acted once he knew of the facts giving rise to the cause of action; and(d) the steps taken by the Claimant to obtain appropriate professional advice once he knew of the possibility of taking action.[62]The Court of Appeal in Southwark London Borough Council v Afolabi 2003 ICR 800, CA, confirmed that, while the checklist in s.33 provides a useful guide for Tribunal’s, it need not be adhered to slavishly. Continuing course of conduct[63]For acts extending over a period, it is relevant to consider whether a discriminatory regime, rule, practice or principle, which had a clear and adverse effect on a complainant, existed. There is a distinction between a continuing state of affairs and a one-off act with ongoing consequences.[64]Guidance was provided in analysing what constitutes conduct extending over a period in Hendricks v. Metropolitan Police Commissioner [2003] IRLR 96 to include per Mummery LJ in the Court of Appeal at paragraph 48: “The numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs, by the concept of an act extending over a period”.[65]The appropriate test for a ‘continuing act’ is highlighted by Hendricks and demonstrates where the employer is responsible for an ‘an ongoing situation or a continuing state of affairs.’ In Hendricks a period of 11 years of police service over which the continuous acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents.[66]A relevant factor is whether the same individuals were involved (Aziz v FDA [2010] EWCA Civ 304).[67]It is possible for conduct extending over a period to relate to different protected characteristics and different types of prohibited conduct (Worcestershire Health and Care NHS Trust v Angela Allen [2024] EAT 40) though this is not necessarily straightforward to establish on the facts. In Worcestershire (para 13) the EAT said: “It may be more difficult to establish that there has been discriminatory conduct extending over a period where the acts that are said to be linked relate to different protected characteristics and different types of prohibited conduct, but there is no absolute bar that prevents there being conduct extending over a period in such circumstances”.[68]The fact that a claimant has awaited the outcome of an internal grievance procedure before making a claim is just one matter to be taken into account by a tribunal in considering whether to extend the time limit: Apelogun-Gabriels v London Borough of Lambeth and anor [2002] ICR 713, CA. Race and sex discrimination and the burden of proof[69]Under s13 (1) of the EQA read with s.9, direct discrimination takes place where a person treats the Claimant less favourably because of race/disability than that person treats or would treat others. Under s.23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.[70]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 race/disability. 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 he was.[71]Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless A can show that he or she did not contravene the provision.[72]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. The tribunal can take into account the Respondent’s explanation for the alleged discrimination in determining whether the Claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others [2006] IRLR 748; Madarassy v Nomura International plc [2007] IRLR 246, CA). The Court of Appeal in Madarassy, a case brought under the then Sex Discrimination Act 1975, held that the burden of proof does not shift to the employer simply on the Claimant establishing a difference in status (e.g., sex) and a difference in treatment. LJ Mummery stated at paragraph 56: “Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.”[73]Further, it is important to recognise the limits of the burden of proof provisions. As Lord Hope stated in Hewage v Grampian Health Board [2012] IRLR870. “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” Conscious or unconscious thoughts of the alleged discriminator[74]An act may be rendered discriminatory by the mental processes, conscious or nonconscious, of the alleged discriminator: Nagarajan v London Regional Transport [1999] ICR 877, HL. In such cases, the tribunal must ask itself what the reason was for the alleged discriminator’s actions. If it is that the complainant possessed the protected characteristic, then direct discrimination is made out. If the reason is the protected characteristic, that answers the question of whether the Claimant was treated less favourably than a hypothetical comparator; they are, in effect, two sides of the same coin. per Lord Nicholls: “In every case…it is necessary to enquire why the Claimant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance because the Claimant was not so well qualified for the job. Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision.”[75]In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL as set out by Lord Nicholls at [11] “…employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the Claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the Claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”[76]It is permissible for the tribunal to answer the hypothetical comparator question by having regard to how unidentical but not wholly dissimilar cases have been treated: Chief Constable of West Yorkshire v Vento (No.1) [2001] IRLR 124, EAT, per Lindsay J at paragraph 7; approved in Shamoon, per Lord Hutton at paragraph 81.[77]A benign motive is irrelevant when considering direct discrimination: Nagarajan at 884G-885D, per Lord Nicholls. It is irrelevant whether the alleged discriminator thought the reason for the treatment was the protected characteristic, as there may be subconscious motivation: Nagarajan at 885E H: “I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must 1st make findings of primary fact from which the inference may properly be drawn. Conduct of this nature by an employer, when the inference is legitimately drawn, falls squarely within the language of s.1(1)(a). The employer treated the complainant less favourably on racial grounds.”[78]The less favourable treatment must be because of a protected characteristic and that requires the tribunal to consider the reason why the Claimant was treated less favourably in accordance with the guidance in Nagarajan. The tribunal needs to consider the conscious or subconscious mental processes which led the Respondent to take a particular course of action in respect of the Claimant and to consider whether his protected characteristic played a significant part in the treatment: CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439. Drawing of inferences[79]It is not sufficient for to draw an inference of discrimination based on an “intuitive hunch” without findings of primary fact to back it: Chapman and Anor v Simon [1994] IRLR 124.[80]The process of drawing inferences is a demanding task. If a tribunal is to make a finding of discrimination on the basis of inference, per Mummery J in Qureshi v Victoria University of Manchester [2001] ICR 863: “It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are. An intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion.”[81]In determining whether a claimant has established a prima facie case, the tribunal must reach findings as to the primary facts and any circumstantial matters that it considers relevant: Anya v University of Oxford and Anor [2001] IRLR 377 (CA). Having established those facts, the tribunal must decide whether those facts are sufficient to justify an inference that discrimination has taken place.[82]The tribunal may cast its net widely to look for facts that are consistent with discrimination and may therefore give rise to a prima facie case. The tribunal may take account of circumstantial evidence, including matters occurring before the alleged discrimination (even those outside the limitation period) and matters occurring afterwards if they are relevant. However, there must be “some nexus between the facts relied on and the discrimination complained of”: Wheeler & Anor v Durham County Council [2001] EWCA Civ 844. Reasonable adjustments on account of disability[83]I reminded myself of the relevant provisions regarding reasonable adjustments to include the need for the existence of a provision, criterion or practice (PCP). I took account of the duty under s.39(5) of the EQA to make reasonable adjustments and referred to sections 20, 21 and 22 and Schedule 8 of the EQA. In particular I took account of s.22 (2) which provides that where a PCP of the employer puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled that the employer is under a duty to take such steps as it is reasonable to have to avoid the disadvantage.[84]I took account of guidance in cases such as Environmental Agency v Rowan [2008] IRLR 20 that a tribunal must identify the PCP, the identity of non-disabled comparators (where appropriate) and the nature and extent of the substantial disadvantage suffered by the Claimant. There is a requirement to look at the overall picture.[85]I took account of the guidance regarding what a PCP constitutes in paragraph 6.10 of the Code and that the purpose of the comparison with people who are not disabled is to establish whether it is because of disability that a particular PCP disadvantages the disabled person in question. There is no requirement to actually identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person. I took into account paragraph 6.2.8 of the Code as to what reasonable steps may involve in terms of trying to alleviate the effect of the substantial disadvantage.[86]As Lord Toulson observed at paragraph 83 First Group Ltd v Paulley [2017] UKSC 4; [2017] IRLR 258, the concept of " reasonable adjustments " for these purposes is " intensely practical ", requiring an objective assessment of how the step(s) proposed would have been effective to enable the disabled person to work, albeit that it will suffice if there was a prospect of the disadvantage being alleviated even if the adjustment in question would not have been completely effective (Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 CA).[87]The phrase 'PCP' is not defined in the legislation, but is to be construed broadly, having regard to the statute's purpose of eliminating discrimination against those who suffer disadvantage from a disability. It includes formal and informal practices, policies and arrangements and may in certain cases include one-off decisions: Ishola v Transport for London [2020] EWCA Civ 112.[88]The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee: Ishola at [36].[89]"Practice" connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises: Ishola at [38].[90]Section 212 of the EQA defines a substantial disadvantage as a disadvantage that is “more than minor or trivial”. To succeed in his claim, the Claimant must show that a relevant PCP caused him a particular disadvantage compared to non-disabled counterparts.[91]The scope of the employer’s duty, where the employee is at that disadvantage, is to take such steps as it is reasonable to have to take to avoid the disadvantage.[92]In O’Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404 the Court of Appeal approved the approach of the EAT, in which it had been observed that “it will be a very rare case indeed where the adjustment said to be applicable here, that is merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability-related absences, would be considered necessary as a reasonable adjustment”, on the basis that this would usurp the management function of the employer and would not fulfil the purpose of the legislation which is “to assist the disabled to obtain employment and to integrate them into the workforce” rather than simply to enrich them (see in particular para 28, citing para 69 of the judgment of the EAT).[93]On the facts of Parnell, the EAT upheld the decision of the tribunal that there was no failure to make reasonable adjustments in relation to an employee on sickness absence where “there was no prospect of any adjustment […] securing the Claimant’s return to work” (para 97).[94]A link between failure to put in place reasonable adjustments and the unfavourable treatment in issue under EQA s15(1)(a) may be an important factor to be taken into account when determining justification. See Code of Practice at para 5.21: If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified. Harassment Claims for both direct discrimination and harassment[95]As a consequence of s212 (1) of the ERA it is necessary to consider allegations of harassment first (as if amounting to harassment they cannot amount to a detriment for direct discrimination). S 26 definition of harassment[96]Under s26, EQA, a person harasses the claimant if he or she engages in unwanted conduct related to a protected characteristic, and the conduct has the purpose or effect of(i) violating the claimant’s dignity, or(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In deciding whether conduct has such an effect, each of the following must be taken into account: (a) the claimant’s perception; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect. Related to a relevant protected characteristic[97]The requirement that the conduct be related to a protected characteristic is different to the requirement in a claim of direct discrimination that the treatment is because of a protected characteristic. The term "related to" is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic. The issue was considered by HHJ Auerbach in Tees Esk Wear Valleys NHS Foundation Trust v Aslam & Anor [2020] IRLR 495. See paras 20-21 and 25 (emphasis added): “Some basic points about the architecture of the variation of the definition of harassment found in sub-sections 26(1) and 26(4) are worth restating at the outset. The conduct must be found to be unwanted; it must be found to relate to the relevant characteristic; and it must have either the proscribed purpose or the proscribed effect, or both. Secondly, the test of whether conduct is related to a protected characteristic is a different test from that of whether conduct is "because of" a protected characteristic, which is the connector used in the definition of direction discrimination found in section 13(1) of the 2010 Act . Put shortly, it is a broader, and, therefore, more easily satisfied test. However, of course, it does have its own limits. Thirdly, although in many cases, the characteristic relied upon will be possessed by the complainant, this is not a necessary ingredient. The conduct must merely be found (properly) to relate to the characteristic itself . The most obvious example would be a case in which explicit language is used, which is intrinsically and overtly related to the characteristic relied upon. Fourthly, whether or not the conduct is related to the characteristic in question, is a matter for the appreciation of the tribunal, making a finding of fact drawing on all the evidence before it and its other findings of fact. The fact, if fact it be, in the given case that the complainant considers that the conduct related to that characteristic is not determinative. Nevertheless, there must be still , in any given case, be some feature or features of the factual matrix identified by the tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question , and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic , as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.”[98]Treatment may be "related to" a protected characteristic where it is "because of" the protected characteristic, but there may be other circumstances in which harassment occurs where the harasser was not motivated by the protected characteristic.[99]Protection is provided because the conduct is dictated by a relevant protected characteristic, whether or not the worker has that characteristic themselves. This means that protection against unwanted conduct is provided where the worker does not have the relevant protected characteristic, including where the employer knows that the worker does not have the relevant characteristic. (See Aslam at [21]).[100]Harassment can be committed even if the protected characteristic did not motivate the perpetrator at all: see Carozzi v University of Hertfordshire [2024] EAT 169, [2025] IRLR 179.[101]The first step in the analysis is to determine whether the respondent engaged in “unwanted conduct”. This means conduct that was unwelcome or uninvited from the subjective point of view of the claimant: Thomas Sanderson Blinds Ltd v English EAT 0316/10.[102]If the respondent is found to have engaged in unwanted conduct from the perspective of the claimant, the tribunal must consider whether such conduct was related to a relevant protected characteristic. This is a finding of fact for the tribunal: as per Aslam.[103]Facts establishing the likelihood of each of the requisite elements of the test must be proved before the burden of proof shifts – and in the course of its assessment of whether this first hurdle is met, the tribunal must consider the context of the alleged harassment. As confirmed in Nazir and another v Asim [2010] ICR 1225 (para 70): “In our judgment, when a tribunal is considering whether facts have been proved from which it could conclude that harassment was on the grounds of sex or race, it is always relevant, at the first stage, to take into account the context of the conduct which is alleged to have been perpetrated on the grounds of sex or race. The context may, for example, point strongly towards or strongly against a conclusion that harassment was on the grounds of sex or race. The tribunal should not leave the context out of account at the first stage and consider it only as part of the explanation at the second stage, after the burden of proof has passed”.[104]The tribunal must consider all comments and conduct in the relevant context, rather than considering these in isolation: Warby v Wunda Group Plc [2012] 1 WLUK 610.[105]Should the tribunal find that the defendant has engaged in unwanted conduct related to a relevant protected characteristic, it must consider whether the conduct has had the purpose or effect of violating B’s dignity or creating the proscribed environment. This is a disjunctive test, requiring only one limb to be met. Either limb will be met if the conduct is designed to, or does in fact, produce the relevant effect.[106]In Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336, EAT, where Mr Justice Underhill (as he then was) gave this guidance: “An employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The Claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the Claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers and tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other discriminatory grounds) it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’[107]General Municipal and Boilermakers Union v Henderson [2015] IRLR 451 provides that a single incident is unlikely to be sufficient to create an environment sufficient to give rise to an offence of harassment.[108]In line with Betsi Cadwaladr University Health Board v Hughes and Ors EAT 0179/13, mere offence is not sufficient to amount to a violation of dignity. Violation of dignity is a strong term that requires a serious and marked effect or intended effect.[109]This is a mixed subjective and objective test. Per Richmond Pharmacology a claimant must actually feel that their dignity has been violated or a proscribed environment has been created. Where that is the case, the tribunal should then consider whether it was reasonable for the claimant to feel that way.[110]In cases where a series of incidents is alleged to amount to harassment, the tribunal should take a cumulative approach, bearing in mind the totality of the incidents: Reed and anor v Stedman 1999 IRLR 299 EAT. Submissions Respondent[111]Ms Martin provided written submissions. She says that the Claimant has not given evidence that links his alleged less favourable treatment to his Bangladeshi origin and that he merely referred to race discrimination within the NHS. She says the Claimant is primarily relying on what he says was a flawed investigation. She says there are inconsistencies in the Claimant’s evidence regarding dates of alleged events but also reasons given at various stages. For example, what he said during Ms Orchard’s investigation regarding his relationship with Ms Chakravatti.[112]She says that Mr Robson’s evidence was straightforward and should be preferred in areas of dispute. She says the Claimant’s evidence was evasive and inconsistent and that he repeatedly refused to make appropriate concessions.[113]In relation to the burden of proof and the race and sex discrimination claiMs Chakravatti e says that he has not established the less favourable treatment. She says all of the claims are misguided and should be dismissed. Claimant[114]The Claimant disputes Ms Martin’s submissions on credibility. In relation to harassment his experience was of an underlying problem re culture and that he is a victim of that. Conclusions and discussion Direct sex discrimination[115]The Claimant relies on not being allowed to work from home in circumstances where two female colleagues were given that opportunity during October 2023. I do not accept that the Claimant suffered such sex discrimination. I find that the circumstances of Ms Kawonza and Ms Chakravatti were materially different from the Claimant’s as they had submitted applications for working from home whereas he had not. It was not until 22 January 2024 that the Claimant submitted an agile working request form.[116]I reject the Claimant’s assertion on the balance of probabilities that he was told by Mr Robson not to make such an application. In reaching that decision I take into account the credibility of the respective parties on this point. As I have already alluded to the Claimant’s evidence regarding the dates upon which certain applications were made are inconsistent, as already it’s could not have been on 12, 19 or 26 October 2023. Further I take account of the fact that the Claimant’s original expression of interest for working from home was predicated on his back condition. He said it would be a short term situation and he was not a fan from working from home. In those circumstances I consider it entirely understandable that Mr Robson would not have perceived that the Claimant was making a formal application to work from home as a result of child care arrangements.[117]Given my finding that the circumstances of Ms Kawonza and Ms Chakravatti were materially different from the Claimant’s I do not consider that the burden of proof shifts to the Respondent. In any event I consider that the Respondent has provided a satisfactory explanation as to why the treatment in question took place and I accept that it was not on account of the Claimant’s sex. Therefore, I find that this allegation fails and is dismissed. Direct race discrimination[118]In relation to the personal development review meeting I find that this contention fails, and I reach this decision for the following reasons. The Claimant was treated no different to Ms Kervonsa and Ms Chakravatti. Mr Robson did not as a matter of course complete formal PDRs with his line reports. Ms Kervonsa and Ms Chakravatti are in the same circumstances as the Claimant having in the same role and line manager. He has therefore failed to establish less favourable treatment and the burden of proof does not therefore shift to the Respondent. Had it done so the Respondent has provided an explanation as to why he was treated in that way.[119]In respect of the issue of the management course, I find that this allegation fails. I do not consider that any grounds exist to infer that the Claimant was treated less favourably on account of his race. I find that the Claimant has not put forward any evidence as to why race may have been an influencing factor in his not being permitted to attend this course. I accept, and it was not challenged, that Mr Robson did not send any of the rota coordinators on this course. Whilst it is accepted that Claimant emailed Mr Robson on 22 September 2023 with an application form, and Mr Robson did not reply to that email, he says that it was overlooked due to sickness and annual leave. There are inconsistencies in the Claimant’s evidence as to the extent to which he chased this up. His grounds of complaint refers to chasing by email and phone but in evidence he says that it was face to face meetings. However I consider it to be less of a question of credibility but rather that the Respondent has put forward an explanation that only one employee at a time could go on the course. None of the Claimant, Ms Chakravatti and Ms Kervonsa went on the course so there was no less favourable treatment and no grounds to infer that it was on account of race. Failure to make reasonable adjustments[120]This relates to the provision of an ergonomic chair. I accept that the PCP existed of the Claimant being required to sit for prolonged periods, and that this potentially created a disadvantage in being a possible aggravating factor for his pre-existing back condition. Did the Respondent fail to make reasonable adjustments? I find that there was no such failure. I reach this finding for the following reasons.[121]I considered a surprising aspect of the Claimant’s evidence was his reluctance to take any personal autonomy in identifying an appropriate ergonomic chair. I acknowledge that ergonomic chairs are expensive and it is therefore necessary that the correct chair is identified. Ergonomic chairs are not a one size fits all, and need to take account an individual’s height, weight and the specifics of their medical condition. The Claimant’s assertion that it was up to Mr Robson, as his manager, to identify the correct chair is misconceived. In my opinion the Claimant did nothing in to facilitate that process. He could have self-referred to OH to provide guidance on an appropriate ergonomic chair. I do not consider it creditable for the Claimant to assert that he did not know OH could make recommendations. OH was clearly the appropriate conduit for a recommendation, as ultimately transpired when they recommended and appropriate ergonomic chair which was finally ordered.[122]I do not therefore accept that there was unreasonable delay from the Respondent. Mr Robson wanted to order a chair but reached an impasse not knowing which chair of the various models available was most appropriate. I accept his evidence in that respect. I consider that the Claimant took an unrealistic view as to the extent to which Mr Robson, as his manager in a clinical department, would have expertise regarding what chair would be appropriate. Harassment on account of race[123]I will deal with the three allegations individually. Being required to move between the different sites.[124]I reject that this is capable of constituting harassment and further there is no evidence at all to infer that this was in any way to do with the Claimant’s race. I accept that the rota coordinators would arrange amongst themselves that cover was provided during any absences. The Claimant and Ms Chakravatti communicated with a view to ensuring appropriate cover. In any event even if the Claimant subjectively felt that he was being harassed objectively it would not be reasonable for it to constitute harassment. Mr Robson asking the Claimant to have lunch with Ms Chakravatti every Thursday from October 2023 through to 4 January 2024[125]I do not consider this to be capable of constituting harassment. Further, there is no evidence upon which it could be inferred that it had anything to do with the Claimant’s race. As a matter of fact the Claimant did not have lunch with Ms Chakravatti during this period nor is there any evidence of Mr Robson requiring him to do so. Whilst he may have suggested that it might be beneficial for the Claimant to have lunch with her it was not something that was required. The Claimant did not suffer any repercussions for not having lunch with her. Whilst I accept the Claimant may have subjectively felt harassed I unequivocally reject that being asked to have lunch with a particular colleague, absent the most extreme circumstances, to be objectively capable of constituting harassment. Mr Robson forcing the Claimant on 4 January 2024 to travel with Ms Chakravatti to another site[126]This did not actually take place. There is no basis to infer that the Claimant, as a Bangladeshi, being asked Bangladeshi to travel with Ms Chakravatti, as a mixed race Canadian/Indian employee, had anything to do with his race. It was merely a suggestion as to a possibly appropriate means of transport between two hospital sites. I do not consider that any subjective harassment the Claimant may have experienced was objectively capable of constituting harassment. Even had he travelled on the same Hopper as Ms Chakravatti it would almost certainly not have been necessary for him to sit next to her. In any event the Claimant said that he would have travelled separately.[127]I do not consider any grounds exist to infer discrimination and as such the burden of proof does not shift but in any event I consider that the Respondent has provided full and appropriate explanations which would have rebutted any such inference. So for these reasons the claims of harassment fail and are dismissed. Jurisdiction on the grounds of time[128]Finally, whilst not strictly necessary given my findings above, had it been necessary I would have found that the claims were in time. I consider it to have been understandable that the Claimant regarded his grievance on 5 January 2024 as the triggering event. He started ACAS early conciliation within the prescribed period from that date. I consider that the various matters he relied on were arguably continuing courses of conduct given that there was an ongoing grievance process. I consider that given the incidents on 4 January 2024, with a grievance on 5 January 2024, and his awaiting the outcome of that grievance, that it would be appropriate to find that those incidents were brought on a timely basis.[129]Even if I was wrong on a continuing course of conduct I would have found that it was appropriate to exercise my discretion to extend time on the basis that it would be just and equitable to do so. I would have taken account of the Claimant being a litigant in person, having acted reasonably promptly and the overarching balance of prejudice between him and the Respondent militating in favour of my discretion being exercised to extend time. Final conclusions[130]The Claimant self-evidently had a general sense of dissatisfaction. I acknowledge that he genuinely considered that he had been belittled and that his career prospects had been compromised. The Respondent acknowledges, as the internal/independent investigation reports indicate, that there were procedural shortcomings, for example, Mr Robson not undertaking a formal PDR meeting with his line reports.[131]I consider that Ms Orchard, Ms Percival and Mr Bateman made relatively strong criticisms but whether such criticisms were justified do not go to whether the claims of sex or race discrimination, an alleged failure to make reasonable adjustments and harassment are made out. I have found they are not based on my own assessment of the evidence.[132]Whilst giving evidence as to his dissatisfaction with various matters the Claimant very rarely provided any evidence upon which race was a contributory factor. He repeatedly referred to the findings of Ms Orchard and others of a flawed investigation, and despite my various reminders to him to focus on the list of issues, his recurrent position was to highlight a flawed investigation and flawed findings. Whilst understandable in the rather unusual situation of an independent report being obtained relatively proximate to the Tribunal hearing, and its adverse findings it did not assist his case based on the list of issues.[133]The Claimant’s reference to overarching institutional racism within the NHS did not get anywhere close to providing grounds for the burden of proof to shift on the race discrimination complaints.[134]For all of these reasons all of the claims fail and dismissed. Employment Judge Nicolle Dated: 24 September 2025 (with written reasons added on 18 December 2025) 22 December 2025 ………...................................................................... ………......................................................................