Ms S Riahi v Atyab Al Marshoud Co Ltd: 6013113/2024
EMPLOYMENT TRIBUNALS
Case No 6013113/2024
Between
Ms S RiahiClaimantAtyab Al Marshoud Co LtdRespondent
Before
Employment Judge NicolleIn person for claimantMr R Pickard (instructed by counsel.) for respondentDate 30 October 2025
JUDGMENT
[1]The Claimant’s claims of direct race discrimination pursuant to S 13 of the EQA and harassment related to race pursuant to S 26 of the EQA fail and are dismissed.
REASONS
[2]Oral reasons were given to the parties. Either party may request written reasons within 14 days of this judgment being sent to them. Claimant: Ms S Riahi Respondent: Atyab Al Marshoud Co Ltd FULL MERITS HEARING BY CVP AT LONDON CENTRAL Heard between: 28-30 October 2025 Before: Employment Judge Nicolle For the Claimant: in person For the Respondent: Mr R Pickard of counsel.[1]The Claimant’s claims of direct race discrimination pursuant to S 13 of the EQA and harassment related to race pursuant to S 26 of the EQA fail and are dismissed.[2]Oral reasons were given to the parties. The Claimant requested written reasons which are set out below.
The Hearing
[3]There was a bundle of documents comprising of 565 pages but only 143 of those pages were relevant to the liability issue with the remaining content relating to the issue of remedy.[4]The Claimant gave evidence and Mr Robert Scrafton an HR Consultant (Mr Scrafton) and Mr Nedal, who was a Sales Assistant at the time and is now a Store Manager (Mr Shehata), gave evidence on the Respondent’s behalf. The list of issues[5]The list of issues is as set out at a case management order of Employment Judge Baty. Mr Picard identified that that list omitted the question of jurisdiction on the grounds of time and he asserts that any acts relied on which predate 24 May 2024 are out of time unless it can be established that they form part of a continuing course of conduct or alternatively that I determine that it would be just and equitable to extend time. Self-identification on the grounds of race/ethnicity[6]The Claimant’s self identifies as half Tunisian and half Italian. Her then fiancé and now husband is Somalian and her stepfather is Moroccan. She says this is relevant in the context of her subjective reaction to the alleged racist comments made by Ms Grace Rawlings, store manager (Ms Rawlings). Ms Rawlings is Sudanese/Syrian.
Findings of fact
[7]The Claimant was employed by the Respondent as a Sales Associate in the Respondent’s Knightsbridge store between 28 August 2023 and 8 August 2024. The Respondent is a Kuwaiti owned company and has a single retail outlet in the United Kingdom. It sells relatively high value perfumes and other fragrances. in its London store. The Claimant being at the material time 1 of 4 members of staff engaged by the Respondent in the UK. The Respondent’s policies[8]The Respondent has various policies to include on diversity and dignity and a disciplinary policy which is included in the employee handbook. The relevant chronology of events[9]The Respondent refers to various evidence which they contend illustrates the Claimant being willing to raise complaints when there were issues in the workplace with which she had concerns. They refer to an email she sent to Mr Scrafton on 13 October 2023 when she said that she wanted to make a complaint about another employee whose behaviour she considered to be unacceptable particularly the way he spoke with female employees.[10]The Claimant in relation to her dismissal refers to Mr Shehata as an actual comparator and relies on an incident which took place with a visitor to the store was subject to a banning notice as a result of sexually harassing female customers within the store on 20 December 2023. There subsequently came to the Respondent’s notice that he had a reputation for behaving in a similar manner at other stores within the Knightsbridge area. Ms Rawlings[11]Ms Rawlings was the store manager at the material time. The Claimant and other employees within the store had concerns regarding her conduct and performance. That resulted in Mr Scrafton attending various meetings to discuss such concerns to include those on 6 and 7 March 2024. He concluded the 7 March 2024 meeting by asking Ms Rawlings and the Claimant to maintain a correct manager/employee relationship and manner of communicating. Mr Scrafton says that the Claimant did not raise any concerns regarding alleged racist remarks made by Ms Rawlings at that meeting.[12]There was a further meeting conducted by Mr Scrafton on 27 June 2024 as part of what is entitled an investigation into Ms Rawlings’ performance as store manager. That concerned operational issues, which I do not need to document, but also made reference to her failure to maintain cordial and good relations with staff and ensuring a suitable pleasant atmosphere in the store for the customers. The meeting was attended by the Claimant and Mr Shehata (he was initially uncertain as to whether he attended but he subsequently confirmed that he did). Alleged racist remarks made by Ms Rawlings[13]Mr Scrafton says that no specifics were given regarding alleged racist remarks. It was however recorded that Ms Rawlings’ dealings with the public were often inappropriate because of her brisk and aggressive manner in which she spoke and behaved making both the staff and public feel uncomfortable. Mr Scrafton says that he advised the Claimant that if she had concerns regarding racist comments made by Ms Rawlings that she should maintain a record of these so that they could be investigated. He says that she failed to do so prior to the events which culminated in her disciplinary investigation and ultimately dismissal. The incident of 31 July 2024[14]The incident which precipitated the Claimant’s dismissal took place on the later afternoon of 31 July 2024. The Tribunal had the benefit of viewing CCTV footage of the events between 17:38 and 17:53 that day. The CCTV footage does not have any audio, and the Claimant complains that this makes it difficult to properly assess the incident. Mr Picard has helpfully provided a chronological summary of what that CCTV depicts.[15]Having viewed that CCTV I summarise the incident as follows. A customer entered the store, and it became increasingly apparent that there was a verbal altercation between him and the Claimant. The Claimant says that the customer was disrespectful in that he insisted on communicating with her in Arabic. The Claimant says that she can understand a limited amount of Arabic but her ability to speak Arabic is virtually non-existent. She says that the customer was perfectly fluid in English but was insistent on speaking in Arabic. Ms Rawlings can communicate in Arabic.[16]The Respondent says that the CCTV depicts the Claimant making what Mr Scrafton described as a disdainful facial expression towards the customer. What is apparent is that there was a protracted exchange. The Claimant says that the customer raised his finger and argued with her. It is not necessary for me to reach detailed findings as to the respective culpability of the customer in the Claimant. Mr Scrafton accepts that this was not a one-sided situation and that the customer was partly responsible for the altercation.[17]What can be seen from the CCTV footage is a protracted situation where the Claimant was repeatedly manoeuvred/shepherded away from the customer to the back office by Ms Rawlings initially and then Mr Shehata. This involved some physical contact to manoeuvre the Claimant away from the front of store to the back office. The Claimant repeatedly returned to the front of store, and it is at least in part her inability to remain out of sight in the back office with a view to deescalating the confrontation, which the Respondent relies on as an act of misconduct.[18]Ultimately external security with responsibility for Knightsbridge stores was called. The store was closed for about 20 minutes and the 4 customers who had been in the store left. Mr Shehata says that he was outside the store on his break when the incident started. When he returned to the store he says that the customer was sweating and very stressed and that the Claimant was shouting at him. He asked Ms Rawlings to take the Claimant into the back office but the Claimant kept coming back out into the shop and saying things like: “what are you still doing here, how are you still here, you don’t have a bride, how can you serve him” and that the Claimant had said “fuck off go away” to the customer. That is disputed by the Claimant and there is no audio transcript as to exactly what was said. It is sufficient to say that there was a protracted altercation and that there was an acceptance by the Respondent of some culpability as far as the customer was concerned. Ms Taher’s email of 1 August 2024[19]Ms Lillane Taher, director (Ms Taher), sent an email on 1 August 2024 to a Rasha Marshoud (Ms Marshoud) and Ms Rawlings relating to the previous day’s incident. Ms Taher is a member of management based in Kuwait and Dubai. Her email included general background contentions regarding the Claimant’s conduct and performance to include her having observed recently that the performance of the Claimant has not been up to our standards due to an accumulation of many customer complaints. She goes on to say: “Her behaviour and her attitude constitute misconduct based on the customer’s comments violating our company policies what reflect the company reputation. As this behaviour is not acceptable and repeatedly happened with different customers we would like to receive a report from the customer service team regarding the recent complaints”. The Claimant’s email to Mr Scrafton of 2 August 2024[20]In an email of 2 August 2024, the Claimant asked Mr Scrafton for clarification on why Mr Shehata was not suspended following the incident in which he nearly became physical with a customer on 20 December 2023. She goes on to say that she would take legal action if necessary and that would include adding a claim of racism to her complaint as Ms Rawlings consistently exhibits racist behaviour towards all ethnicities favouring Kuwaitis over everyone else. And then she talks generally about how things were unfair.[21]On 2 August 2025 there was a WhatsApp exchange between Mr Scrafton and Ms Rawlings regarding the investigation Mr Scrafton had been appointed to undertake. The Claimant asserts that Ms Rawlings was being led by Mr Scrafton as to what she should say to include whether it would be accurate to say that the Claimant’s facial expression was one of disdain. There may be some justification for that contention, but it is not an investigation which is being considered in the context of an ordinary unfair dismissal claim, and I will return to the relevance of the process followed in my conclusions.[22]Pursuant to a letter from Mr Scrafton dated 2 August 2024 the Claimant was invited to attend a disciplinary hearing. The allegations were that:• she had behaved in an inappropriate and discourteous manner towards a customer causing a prolonged and heated argument on the shop floor;• she had repeatedly failed to follow instructions from her manager during the incident leading to a severe aggravation of the situation; and• the incident took place in front of several other customers and onlookers and was so serious that the normal business was interrupted and the company suffered severe damage to its reputation.[23]On 4 August 2024 Ms Marshoud sent an email to Ms Taher, Mr Scrafton and Ms Rawlings regarding a complaint raised by the customer following the incident on 31 July. The timing of the incident was arguably inconsistent in that it refers to a complaint raised at 9:30am eastern standard time on 31 July when the incident took place later in the day. It refers to the name of the customer (which need not be recorded), it says that the Claimant did not respond to him with any interest and did not have any respect for him. It refers to chaos occurring in the store. It refers to the customer then purchasing 12 bottles of perfume and being a very loyal customer of the Respondent.[24]Mr Scrafton says that he confined his investigation and the disciplinary process to the events of 31 July 2024 and did not place any reliance on allegations that the Claimant’s previous conduct, to include alleged facial expressions, were relevant considerations. Mr Scrafton interviews the Claimant on 5 August 2024[25]On 5 August 2024 Mr Scrafton interviewed the Claimant as part of his investigation. He set out what had been seen on the CCTV and records his opinion that the Claimant had been very agitated. He records that he did not consider that there had been any physical threats or intimidation from any of the participants.[26]Mr Scrafton sent an email on at 1603 on 5 August 2024 to the Claimant. He refers to her having raised the 20 December 2023 incident and he explained that it involved a member of the public harassing female customers in the store. He says that Mr Shehata had protected the female customers, and then he and Ms Rawlings were insulted. He says that the individual was then banned from the store. Mr Scrafton’s report dated 6 August 2024[27]Mr Scrafton produced a report on the disciplinary dated 6 August 2024. He sets out his views in relation to the various allegations. He records that the customer was extremely emotional, and his behaviour could be said to have been equally inappropriate and discourteous. He refers to the Claimant having been emotionally upset and being unable to control her temper and that her actions were not calmly deliberate or calculated. He says that Ms Rawlings repeatedly asked the Claimant to stay in the back office. He sets out the Claimant’s position in detail which included her belief that she was being disrespected by the customer, that her facial expression was made to show how baffled she was about the customer’s insistence on communicating in Arabic and that his aggressive gestures made her fearful for her safety. The disciplinary hearing on 7 August 2024[28]The hearing was conducted by Mr Scrafton and whilst Ms Rawlings was in attendance Mr Scrafton was the sole arbiter. The Claimant had the opportunity to set out her position which has already been covered but she added that the customer had used offensive words and mocked her and more generally to his rude attitude in his communications with her. Mr Scrafton’s letter to the Claimant dated 8 August 2024[29]In a letter dated 8 August 2024 Mr Scrafton advised the Claimant that he had upheld the allegations against her. Whilst he had taken into account in mitigation the customer’s argumentative and provocative behaviour he did not consider that was sufficient to negate what he considered to be the Claimant’s misconduct. He did, however, give her the benefit of her notice period rather than being summarily dismissed. The Claimant’s appeal letter dated 9 August 2024[30]The Claimant appealed against her dismissal in an email dated 9 August 2024. She contends that the customer had a close connection to the store owner and that the outcome was unfair and biased. She once again refers to the 20 December 2023 incident which she contends was similar but with a different outcome. The Claimant’s appeal hearing dated 21 August 2024[31]The hearing was ostensibly conducted by Mr Scrafton. However Ms Taher was in attendance and it is apparent from the transcript of the hearing that she became increasingly influential, and arguably, determined the approach taken. English is not Ms Taher’s first language and there may be some linguistic and cultural elements to have manner of addressing the Claimant as “my dear” and at one point saying: “My dear, if you, I am asking you are you, are you listen always to your parents. I’m sorry for the questions. Are you a baby for example? You should listen to your manager about this thing. It’s about you own- it’s about your own personality”. Mr Scrafton acknowledged that the tone of communication may not have been appropriate but referred to linguistic and cultural differences.[32]It became apparent in affect Mr Taher was concluding the appeal hearing as, for example, her saying: “I have received so many complaints about you. This is I want to end it that I receive so many complaints. The hearing effectively concluded with her wishing the Claimant good luck and saying that she was a good person.[33]Mr Scrafton in a letter dated 23 August 2024 rejected the Claimant’s appeal and saying that she had not put forward any new justifications or evidence and that the original decision was therefore upheld. The Claimant’s mental health[34]The Claimant refers to medical evidence regarding her mental health to include a letter from her GP dated 4 May 2025 which refers to her history of anxiety and that in September 2024, due to a significant escalation in her anxiety symptoms, she was prescribed Sertraline. The Respondent says that that coincided with her disciplinary process and ultimate dismissal. Anonymous audio recording[35]The Claimant introduced a transcript of an audio voice note received on 16 May 2025 from an anonymous former employee raising issues with Ms Rawlings and saying that she found interactions with Ms Rawlings were bad for her mental health. The Claimant says it has not been possible to obtain other witnesses as there is a reluctance by others to participate in the Tribunal process. Other matters from the witness evidence Mr Scrafton[36]Mr Scrafton provides a consultancy service to typically foreign owned small retail businesses in London. He will fairly regularly, once a week or every ten days, make an unannounced visit to the store. He said that the staff were not always busy and inquire to periods may engage in banter. He says that where there are issues, he always tries to resolve matters informally. Mr Shehata[37]Mr Shehata said that he never heard any racist comments. He tried to keep apart from the Claimant and Ms Rawlings. He says that Ms Rawlings and the Claimant were friends. I considered that there were a couple of inconsistencies in Mr Shehata’s evidence. First he denied having been in attendance when concerns regarding Ms Rawlings’ conduct were raised with Mr Scrafton at the 26 June 2024 meeting. He subsequently accepted that he must have been in attendance when I took him to the transcript of that meeting. He also said that he had only seen the CCTV footage when it was shown at the beginning of the hearing on 29 October 2025 but then accepted that he probably did see it about a year ago. The Law Jurisdiction on the grounds of time
The Law
[38]The relevant section is 123 of the EQA with the basic period being three months starting with date of the act which the complaint relates or under s.123(b) such other period as the employment tribunal thinks just and equitable.[39]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 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; and c) the promptness with which the Claimant acted once she knew of the facts giving rise to the cause of action.[40]The Court of Appeal in Southwark London Borough Council v Afolabi 2003 ICR 800, CA, confirmed that, while the checklist in S.33 of the Limitation Act 1980 provides a useful guide for tribunals, it need not be adhered to slavishly. Harassment S 26 definition of harassment[41]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).[42]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[43]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.”[44]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.[45]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.[46]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.[47]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 as per Aslam.[48]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”.[49]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.[50]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.[51]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.’[52]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.[53]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.[54]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. Race discrimination and the burden of proof[55]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.”[56]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[57]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.” Drawing of inferences[58]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.[59]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.” Submissions[60]The parties had the opportunity to make submissions both provided written submissions and then spoke relatively briefly to those. Respondent[61]Mr Picard disputes that the Claimant’s named comparator, Mr Shehata, is appropriate as their circumstances are materially different. In relation to the alleged acts of harassment he denies that they had the prescribed effect saying that it is relevant that the Claimant did not raise the matters between March 2024 and the events triggering the disciplinary investigation and ultimately her dismissal in August 2024. He says that this is strong evidence that either no such remarks were made, or the Claimant was seeking to reintroduce historical matters when she became subject to a disciplinary process.[62]He sets out the Respondent’s position regarding the dismissal reiterating that this is not an unfair dismissal claim and involves the tribunal applying a different test. He nevertheless says that the Respondent, by way of a rebuttal to any inference of discriminatory conduct on account of the protected characteristic of race, is able to point to legitimate concerns regarding the way the Claimant had conducted herself. He says the Claimant has conflated status and nationality.[63]He disputes that the Claimant satisfies the subjective test for s.26 harassment. He says that the Claimant has not provided sufficient details of Ms Rawlings’ remarks to include exactly when they were made. Further, despite being asked to do so she failed to provide Mr Scrafton with details of those remarks contemporaneously. He further says that she has failed to satisfy the objective element of the test for harassment. He says the alleged remarks were not about a particular individual. The Claimant has not specified what the disparaging comments about North Africans are. He says the Claimant and Ms Rawlings were described as friends by Mr Shehata.[64]He says the claims are out of time. Claimant[65]The Claimant refers in general terms to what she describes as a pattern of discriminatory conduct and the effect that this had on. She refers to her particular sensitivity to remarks regarding North Africans given her own and family members’ ethnic and national origins. Conclusions and discussion[66]S.212 of the EQA provides that where there are concurrent claims of direct discrimination and harassment the harassment claim should be considered first. Therefore I will deal with the harassment claim first and then I will go on to consider the issue of jurisdiction on the grounds of time. Harassment on account of Ms Rawlings’ comments Did Ms Rawlings make the alleged racist comments?[67]The first matter I have to consider is whether on the balance of probabilities Ms Rawlings made the comments as set out at 18.1.11 to 18.1.16. I take into account the lack of particularity and dates given by the Claimant. Nevertheless I consider that applying a balance of probabilities test that it is more likely than not that Ms Rawlings made comments to the effect set out by the Claimant. I reach this finding for the following reasons.[68]First, Ms Rawlings has not given evidence so it is the Claimant making an assertion without Ms Rawlings being here to rebut those contentions. I consider that there are grounds to infer that it is more likely than not that such comments were made. I take into account that it is well documented, and accepted by the Respondent, that there were general issues with Ms Rawlings’ conduct and interpersonal communication with employers and customers. Whilst it does not follow that this would have included her making racist comments it nevertheless points to a situation where there were concerns regarding her interpersonal interactions and what is described as her creating a less than harmonious working environment within the store. I take this into account in assessing her general propensity to communicate in an inappropriate way and whilst it is not a decisive factor it is nevertheless is a factor I have taken into account. Given that I have found on the balance of probabilities that such remarks were likely to have been made by Ms Rawlings there is no basis for the Respondent to rebut the inference of such remarks having been made. Would the Respondent have vicarious liability for such comments?[69]I have to consider whether the Respondent would have vicarious liability for Ms Rawlings’ conduct. Mr Picard acknowledges that the Respondent has not run a statutory defence. I find that the comments were made in the course of employment as they were in the store and related to other employees, customers and members of the public. Were Ms Rawlings’ comments capable of constituting harassment of the Claimant pursuant to S 26 of the EQA on the grounds of the protected characteristic of race?[70]I have to consider whether the Claimant suffered the prescribed effect. The comments were made against various individuals to include Sudanese people, Moroccan girls, North Africans and Egyptians. Therefore these comments are wide ranging. What the Tribunal does not know is the extent to which the comments are selectively chosen by the Claimant given her own ethnic and national origin and it may well be that other comments were made against other ethnic/racial/national groups or other protected characteristics. The Claimant’s subjective perception[71]The Claimant’s evidence is that subjectively she suffered harassment on account of overhearing such comments. Whether she necessarily shared the protected characteristic of the ethnic groups identified in other words the Claimant herself is not Sudanese or Egyptian. Nevertheless I am willing to accept that subjectively the Claimant may have had some level of upset in relation to such comments. Were the comments objectively capable of constituting harassment of the Claimant?[72]However, I then have to go on and consider whether objectively it would be reasonable for the comments to have that effect. I find that it would not be and I reach that finding for the following reasons.[73]First, the Clamant failed to pursue a contemporaneous complaint in relation to these matters. Mr Scrafton had invited her to document matters but she failed to do so and only retrospectively raised these matters once a disciplinary investigation was underway.[74]Secondly, she has not set out dates when these comments were made and they could therefore be over a protracted period of time and many of them may have been before 24 May 2024 which the Respondent asserts is the cut off for claims being out of time.[75]Thirdly, I accept Mr Pickard’s contention that these comments, if made, were not directed at the Claimant but rather constituted Ms Rawlings’s random comments over a protracted time. I place this in the context of what Mr Scrafton referred to as banter taking place during quieter periods within the store.[76]For all of those reasons and applying the guidance in Richmond Pharmacology I do not consider that objectively the Claimant over hearing such remarks, which were not specifically directed at her, were capable of having the prescribed effect and therefore her claims of harassment on account of those comments fail. Dismissal[77]I then go on to consider whether dismissing the Claimant was capable of constituting an act of harassment. I consider that this claim is wrongly pursued as one of harassment. Dismissal needs to be considered on the alternative ground of direct discrimination because of race. The Claimant’s actual comparator[78]I reject the Claimant’s assertion that the circumstances of her actual comparator Mr Shehata were materially the same. I accept the Respondent’s evidence that Mr Shehata was dealing with a difficult situation and had to intervene to protect female customers from sexual harassment. Those circumstances are self-evidently distinguishable and materially different from the circumstances involving the altercation between the Claimant and the customer on 31 July 2024.[79]I then go on to consider who a correct comparator would be in these circumstances. The Claimant’s assertion is that she was discriminated against because the Respondent as a matter of course gives preferential treatment to Kuwait nationals and therefore she as a non-Kuwaiti was treated less favourably. I reject that assertion both as a matter of law and fact. Was the Claimant treated less favourably on account of her race?[80]Dealing with the law issue first, the assertion does not fit comfortably within s.13 of the EQA. I do not accept that the Claimant as a half Tunisian, half Italian employee was treated less favourably when compared to a hypothetical comparator who was English, French or Kuwaiti. There is some evidence that the Respondent gives additional service and benefits to what Mr Shehata referred to as VIP customers or high spenders. I find as a matter of probability that that is indeed likely. However that would not be unusual as many businesses will take additional steps to safeguard the business of their lucrative or high value clients. Whilst it may be considered somewhat inequitable it is not discriminatory on account of race. If, which is disputed by the Respondent, it had a policy of preferring, or giving enhanced protection and treatment, to Kuwaiti customers that would be applied equally consistently to employees regardless of their own race or nationality. I do not consider that the Claimant is capable of fulfilling the requirement of having been less favourably treated. As such I do not consider that the burden of proof shifts to the Respondent.[81]Nevertheless had I considered that the burden of proof had shifted to the Respondent I accept its explanation that they had concerns regarding the Claimant’s conduct and what they have described as her refusal to comply with managerial requests to remain out of the front of store area and her continuing failure to deescalate the confrontation with the customer. I find that that is an explanation which would have rebutted any inference that her race or nationality were the causative factor behind her treatment. Associative discrimination[82]Mr Pickard, in response to a question from me, said that associative discrimination may potentially apply. I do not however consider that this is a case which would fall within the concept of associative discrimination. Final conclusions[83]As a general observation I consider that a large part of this claim, as it is often the case with employees not having two years’ service, is in effect the Claimant contending that she had been unfairly dismissed. As I have alluded to there are various aspects of the process which may well have formed a basis for a finding of unfair dismissal, and whilst there is no need for me to record these in detail, they would include the role of Ms Taher both in advance of the appeal process, which pointed to her taking into account matters which were not the subject matter of the formal disciplinary procedure to include earlier complaints regarding the Claimant and her habitual disdainful facial expressions, and her in effect taking over the appeal hearing and reaching a conclusion communicated to the Claimant without any obvious discussion and referral to Mr Scrafton who was notionally responsible for its conduct and determination. However, these are matters which are outside the scope of the issues I have to address. Time limits and jurisdiction[84]Finally, for completeness I will consider the issue of time limits and whether earlier claims would have been out of time. I would have found that the communications as set out at 18.1.11 to 18.1.16 formed a course of conduct given that they have a significant level of similarity and overlap. Nevertheless, the time issue is one of the factors as I have taken into account in assessing whether the comments were objectively capable of having the prescribed effect.[85]So whilst I consider that the Tribunal had jurisdiction to consider the complaints ultimately I have found that the claims of harassment relating to race and direct discrimination because of race fail and are dismissed. Employment Judge Nicolle Dated: 30 October 2025 with written reasons added on 9 December 202512 December 2025 ………...................................................................... ………...................................................................... 1.