Employment Judge AyreIn person for claimantMs R Thomas (instructed by counsel) for respondentDate 21 October 2025
JUDGMENT
[1]The claim of direct race discrimination is not well founded. It fails and is dismissed.[2]The claim of harassment related to race is not well founded. It fails and is dismissed.[3]The respondent’s costs application fails and is dismissed.
REASONS
[1]The claimant was employed by the respondent as a Facilities Manager from 1 August 2023 until November 2024. Early conciliation started on 22 August 2024 and ended on 3 October 2024. The claim was presented on 23 October 2024.[2]A Preliminary Hearing took pace on 29 April 2025. At that hearing it was clarified that the claimant is bringing complaints of direct race discrimination and harassment related to race.
The hearing
[3]There was before the Tribunal an agreed bundle of documents running to 133 pages. I heard evidence from the claimant, and on behalf of the respondent from Alexaksandra Sumara, Senior HR Advisor and Samantha Gaunt, former HR Manager. The respondent made oral submissions. The claimant was given the opportunity to make oral submissions, but chose not to. Application for costs[4]At the conclusion of the hearing after I had delivered judgment, the respondent made an application for costs in the sum of £20,000. In support of the application Ms Thomas produced a costs warning letter sent to the claimant on 15 October 2025, and two breakdowns of the legal fees incurred by the respondent in defending this claim.[5]I considered whether the application should be dealt with today or on another occasion. The respondent’s preference was to proceed today, the claimant’s on another occasion. I asked the claimant why he wanted more time, and he was unable to tell me what information he wanted to gather in response to the application.[6]I decided to proceed with the costs application today. The Tribunal must seek to give effect to the overriding objective when it exercises any power under The Employment Tribunal Rules of Procedure 2024. The overriding objective includes avoiding delay, so far as compatible with proper consideration of the issues, saving expense and dealing with cases in ways which are proportionate to the complexity and importance of the issues.[7]I was not persuaded that arranging another hearing to deal with the costs application would be proportionate or enable the claimant to better prepare to deal with it.[8]I explained to the claimant the process that I would follow in dealing with the application. Ms Thomas made the application verbally, and we then adjourned for lunch to give the claimant time to consider the position and prepare a response. Before lunch I explained to the claimant that I would want to hear evidence in relation to his ability to pay a costs award were one to be made. Over lunch the claimant gathered information about his financial situation and prepared a brief statement which he read to the Tribunal. The claimant was cross examined by Ms Thomas on his financial situation, and then had the opportunity to make submissions in relation to the costs application. He chose not to do so.
The Issues
[9]The issues that fell to be determined were identified at the Preliminary Hearing and confirmed at the start of this hearing as being the following: Direct race discrimination 1. Did the respondent fail to investigate the claimant’s grievance? 2. Was the claimant treated less favourably than a real or hypothetical comparator? The claimant is white British. He compares his treatment with that of Bashir Omar who is black South African. 3. If so, was it because of race? Harassment related to race 4. On 21 August 2024 did Samantha Gaunt tell the claimant that Mr Bashir was a protected characteristic but the claimant is not? 5. Did this amount to unwanted conduct that had the purpose or effect of creating a humiliating, degrading, hostile or offensive environment for the claimant? 6. Was the conduct related to race?[10]In light of my findings on the substantive issues in this claim, there was no need to deal with questions of remedy.
Findings of fact
[11]The claimant was employed by the respondent as a Facilities Manager from 1 August 2023 until 8 November 2024. The respondent is a company which designs, manufactures and distributes specialist sports apparel. It operates out of a purpose build facility in Catcliffe, Sheffield.[12]During the course of his employment the claimant was responsible, amongst other things, for managing members of staff and for testing electrical equipment. He reported to Rob Smith, the Head of Manufacturing.[13]The claimant describes his race as white British.[14]On 5 August 2024 the claimant was carrying out PAT testing of equipment at the respondent’s premises in Catcliffe. The claimant spoke to a number of staff whilst carrying out the testing. A black South African member of staff, Bashir Omar, was present whilst the testing was taking place. The claimant did not speak to Mr Omar. He went up to Mr Omar’s workstation, picked up an extension lead and then put it back down on the table. Mr Omar described the claimant as throwing the lead down as if in contempt and resentment.[15]Mr Omar was upset by the incident. The following day he spoke to a colleague about what had happened, but said that he did not want to make a formal complaint because he was friendly with the claimant’s wife who, at the time, worked in the respondent’s HR department.[16]On 8 August however Mr Omar sent an email to the respondent’s HR department complaining about the incident. He wrote that the claimant “came to my workstation by the side of the table, picked up the Extension lead, glanced at it and flung it back on the table as if in contempt and resentment. He did not acknowledge my presence and completely ignored leaving me flabbergasted and bewildered.”[17]Mr Omar also wrote that the claimant had gone on to speak to others whilst inspecting their equipment and that “It is only then it dawned on me that he acted in that manner only with myself and treated the other colleagues of mine differently and can only deduce that it is due to the colour of my skin. You will note that I am avoiding the use of the word Racism because it is vile and disgusting in itself but to think that you have someone in your midst with this mindset is upsetting and has left me feeling dejected, moreover it reminded me of the time I was in South Africa where it was the norm…” Mr Omar wrote that another colleague, Craig White, had witnessed the incident.[18]On 14 August Rob Smith and Ola Sumara from HR met with the claimant and asked him about the incident. He had no recollection of it and denied having any issue with Mr Omar. Mr Smith and Ms Sumara also spoke to Craig White, who corroborated Mr Omar’s version of events and said that the claimant had treated Mr Bashir differently to others.[19]Mr Smith and Ms Sumara then met with Mr Omar and said that there was insufficient evidence to move to a disciplinary. They suggested trying to resolve matters through a mediation meeting to clear the air and Mr Omar agreed.[20]Mr Smith went to fetch the claimant and asked him to join the meeting. Mr Smith did not tell the claimant what the meeting was about until he was in the room when Mr Smith explained that the meeting was a mediation meeting and suggested that the claimant and Mr Omar talk.[21]Mr Omar said that it had been explained to him that there was no evidence and that the claimant had no recollection of the incident. He said that it had affected him when the claimant had picked up the extension lead, looked at it, and then threw it down. The claimant said that he did not recall that but he apologised if he had offended Mr Omar in any way, and that he didn’t mean anything by his behaviour.[22]Mr Omar said, “it’s fine, it’s sorted”, and the claimant apologised again if he had offended Mr Omar. Mr Omar said that he accepted the apology, that the matter was resolved, and that they could now forget about it. The claimant accepted during his evidence to the Tribunal that during the mediation meeting he had apologised twice, without being asked to do so.[23]The following day, 15 August, Mr Smith wrote to Mr Omar confirming the outcome of the investigation into his complaint, namely that “there wasn’t sufficient evidence to proceed with any disciplinary process” and that the outcome of the mediation appeared to be well received by both parties.[24]During the summer of 2024 the respondent made a number of employees redundant. The claimant was one of those employees, and on 8 August he was given three months’ notice of the termination of his employment. He was told that he was expected to work his notice period.[25]After the mediation meeting on 14 August the claimant contacted ACAS. The following day he went into the office where Samantha Gaunt, who was at the time the respondent’s HR Manager, and Aleksandra Sumara, HR Advisor, were working. He handed Samantha Gaunt a letter and said that he was requesting garden leave or for his notice to be paid, and that he would not be coming back to work. He then asked Ms Gaunt if he could hug her. She agreed and the claimant hugged Ms Gaunt and Ms Sumara before leaving the office. He did not return to work.[26]Ms Gaunt read the letter after the claimant left. In the letter the claimant wrote that: “I would like to report a counter claim of discrimination due to my ethnicity…. While performing my duties at work I have been accused of throwing an extension lead behind a machine in a racial manner….I am afraid to do my duties at work and I am now worried that this might escalate once word spreads around the building that I am racist”.[27]The claimant also wrote “I don’t feel that I can perform my daily duties at work or even be present at work without fear of being accused of being racist. I have been advised to request either PILON or Garden leave for the remainder of my agreed notice period of 3 months…” and that he would not be coming into work.[28]The respondent wrote to the claimant the same day acknowledging receipt of the grievance letter and inviting him to a meeting on 21 August to discuss it. The claimant did not reply to the email and on 19 August HR sent a chaser email asking the claimant to confirm that he would be present at the meeting. The claimant replied on 20 August that he would attend the meeting and that he would have a colleague with him.[29]A meeting took place on 21 August, chaired by Ms Gaunt, with Ms Sumara also present. The claimant attended together with a colleague, Simon Dix. During the meeting the claimant said that he did not feel the issue raised by Mr Omar had been resolved because he had been accused of being a racist.[30]Ms Gaunt asked the claimant whether he understood why the respondent had to investigate Mr Omar’s complaint, and the claimant replied “yeah”. Ms Gaunt also explained that the purpose of an investigation is to ask whether something had happened or not, and asked what had changed since the mediation meeting. The claimant replied, “The fact that he’s basically said that I’m racist for doing my job” .[31]Ms Gaunt sought to reassure the claimant that the respondent did not believe he was racist but the claimant insisted that he could not do his job, and that he deemed what Mr Omar had done to be an act or racism because he (the claimant) is white.[32]The claimant suggested in the meeting that he’d ‘had to apologise’ to Mr Omar, although in his evidence to the Tribunal the claimant accepted that no one had told or asked him to apologise. He said that he was worried that if he continued to work he would be called a racist again. Ms Gaunt asked him, “How does that fall under racial though” and he replied, “Because I’m white and he’s not”.[33]In response, Ms Gaunt said “But that isn’t a protected characteristic” and that Mr Omar “had protected characteristics”. Ms Gaunt acknowledged, in her evidence to the Tribunal, that she had used confusing language and the incorrect terminology. What she meant by that comment was that Mr Omar was from an ethnic minority background. She did not intend to cause any offence with this statement.[34]The claimant asked, “So because I’m white, I’m not protected if he’s racist towards me?” and Ms Gaunt replied, “I’m not saying that. I’m saying I’m trying to find the act of racism from him to you exactly the same as we’ve tried to find the act of racism from you to him, and we haven’t found anything. That’s why we’ve taken no further action.” The claimant appeared at the time to accept this explanation.[35]The claimant said that he was not willing to return to work unless the respondent could guarantee that he would not be accused of racism again and when Ms Gaunt explained that the respondent could not guarantee that to anybody, the claimant said that it was better that he was not at work.[36]After the grievance meeting Ms Gaunt reviewed the CCTV footage of the incident on 5 August and listened to the recordings of the interviews Mr Smith had carried out with the claimant, Craig White and Mr Omar.[37]She formed the view that there had been a complaint of potentially racist behaviour raised by Mr Omar and that it had been appropriate for the respondent to investigate that. She wrote to the claimant to inform him of the outcome of his grievance. In the letter she wrote that: “You admitted that the company reasonably investigated his claims and that you understood why we investigated…. You said you were happy to work your notice period if the company could confirm that other employees would not accuse you of ‘being racist for doing your job’. We deem this to be an unreasonable request, as the company cannot guarantee the actions of all employees. However, we can confirm that the company will fully investigate any employee/s found to be referred to anything relating to the above in an untrue and/or derogatory / racist manner, as the company has always done. We believe this is a reasonable response. Your request to be paid PILON or placed on Garden Leave during your notice period, as requested in your grievance letter, for redundancy dismissal is rejected. From the time you left on Thursday 15th August up until today, we do not have a sick note or self-certification form for any sickness related to you, therefore you are currently being recorded as unauthorised unpaid leave….”[38]The claimant refused to return to work after 15th August 2024. He did not send in any fit notes. On 28 August a manager Chris Gillingham telephoned the claimant to ask why he was not at work. The claimant told him that he was not prepared to come back to work and had no intention of returning.[39]On 30 August 2024 the claimant incorporated a limited company, DBFM Ltd, whose business is described on the Companies House register as being electrical installation. The claimant became the sole director of the company on 30 August. Costs[40]The claimant is now working for his own business. He earns a salary of £12,750 a year. He does not receive any benefits. He lives with his wife, who earns approximately £28,000 a year, and has one dependent, aged 12.[41]The claimant’s monthly outgoings include mortgage repayments of £570 a month, £263.81 loan repayments, £181 council tax, £150 gas and electricity.[42]The claimant has £1,756 in his current account and £128 savings. He has a joint account with his wife in which there is £194.67.[43]He drives a van which is owned by the company, and a 20 year old Land Rover which he estimates is worth between £1,000 and £1,500. He owes approximately £1020 on credit cards and has no other assets. The law Direct discrimination
The law
[44]Section 13 of the Equality Act provides that: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”[45]When determining questions of direct discrimination there are, in essence, three questions that a Tribunal must consider:a. Was there less favourable treatment?b. The comparator question; andc. Was the treatment ‘because of ‘ a protected characteristic?[46]In a direct discrimination case the claimant must have been treated less favourably than an actual or a hypothetical comparator. Section 23(1) of the Equality Act 2010 provides that there must be “no material difference between the circumstances” of the claimant and the comparator. The comparator must be “in the same position in all material respects” as the claimant, save that the comparator does not share the claimant’s race (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).[47]The Equality and Human Rights Commission Code of Practice on Employment (2011) states that: “…. it is not necessary for the circumstances of the two people (that is, the worker and the comparator) to be identical in every way; what matters is that the circumstances which are relevant to the treatment of the worker are the same or nearly the same for the worker and the comparator…”[48]Where a comparison with an actual comparator can be made, there is no need for the Tribunal to construct a hypothetical comparator. Where a hypothetical comparator is required, the Tribunal must create a “hypothetical “control” whose circumstances are materially the same as those of the complainant save that the comparator does not have the protected characteristic… The question is then whether such a person would have been treated more favourably than the claimant in those circumstances. If the answer to this question is that the comparator would not have been treated more favourably, this also points to the conclusion that the reason for the treatment complained of was not the fact that the claimant had the protected characteristic” (Gould v St John’s Downshire Hill [2021] ICR 1, EAT).[49]In Gould Mr. Justice Linden explained that “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective…For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision…[and] the influence of the protected characteristic may be conscious or subconscious.” Burden of proof[50]Section 136(2) of the Equality Act 2010 sets out the burden of proof in discrimination claims, with the key provision being the following: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision…”[51]There is, in discrimination cases, a two stage burden of proof (see Igen Ltd (formerly Leeds Careers Guidance and others v Wong [2005] ICR 931 and Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205) which is generally more favourable to claimants, in recognition of the fact that discrimination is often covert and rarely admitted to. In Igen v Wong the Court of Appeal endorsed guidelines set down by the EAT in Barton v Investec, and which I have considered when reaching my decision.[52]In the first stage, the claimant has to prove facts from which the tribunal could decide that discrimination has taken place. If the claimant does this, then the second stage of the burden of proof comes into play and the respondent must prove, on the balance of probabilities, that there was a non-discriminatory reason for the treatment. So, if the claimant establishes a prima facie case of discrimination, the burden shifts to the respondent and the Tribunal has to consider whether the respondent’s explanation is sufficient to show that it did not discriminate.[53]The Supreme Court has confirmed, in Royal Mail Group Ltd v Efobi [2021] ICR 1263, that a claimant is required to establish a prima facie case of discrimination in order to satisfy stage one of the burden of proof provisions in section 136 of the Equality Act. So, a claimant must prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination.[54]Where there are multiple allegations of discrimination, the Tribunal should consider whether the burden of proof has shifted from the claimant to the respondent in relation to each one, rather than taking a broad brush approach.[55]In Glasgow City Council v Zafar [1998] ICR 120, Lord Browne-Wilkinson recognised that discriminators ‘ do not in general advertise their prejudices: indeed they may not even be aware of them’. Direct discrimination is often covert rather than overt, and a Tribunal can look at all the material before it when determining whether there has been less favourable treatment (London Borough of Ealing v Rihal [2004] IRLR 642).[56]The Tribunal has the power to draw inferences of discrimination where appropriate. Inferences must be based on clear findings of fact and can be drawn not just from the details of the claimant’s evidence but also from the full factual background to the case.[57]Factors that may be relevant when considering whether a claimant has made out a prima facie case of discrimination can include: 1. Unanswered questions or evasive answers to questions; 2. Conduct during the proceedings; 3. The lack of a credible explanation by the respondent; and 4. Discriminatory comments[58]It is not sufficient for a claimant merely to say, ‘I was badly treated’ or ‘I was treated differently’. There must be some link to the protected characteristic or something from which a Tribunal could draw an inference. In Madarassy v Nomura International plc [2007] ICR 867 Lord Justice Mummery commented that: “the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[59]In Deman v Commission for Equality and Human Rights and others [2010] EWCA Civ 1276, Lord Justice Sedley adopted the approach set out in Madarassy v Nomura that ‘something more’ than a mere finding of less favourable treatment is required before the burden of proof shifts from the claimant to the respondent. He made clear, however that the ‘something more’ that is needed to shift the burden need not be a great deal. Examples of behaviour that has shifted the burden of proof include a non-response or evasive answer to a statutory questionnaire, or a false explanation for less favourable treatment.[60]Unreasonable behaviour is not, in itself, evidence of discrimination (Bahl v The Law Society [2004] IRLR 799) although, in the absence of an alternative explanation, could support an inference of discrimination (Anya v University of Oxford & anor [2001] ICR 847). Harassment[61]Harassment is defined in section 26 of the Equality Act as follows: “(1) A person(a) (A) harasses another(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of – (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B… (4) In deciding whether conduct has the effect referred to in subsection (1)(b),each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect…”[62]In deciding whether the claimant has been harassed contrary to section 26 of the Equality Act, the Tribunal must consider three questions: 1. Was the conduct complained of unwanted: 2. Was it related to race; and 3. Did it have the purpose or effect set out in section 26(1)(b). (Richmond Pharmacology v Dhaliwal [2009] ICR 724)[63]A single incident can amount to harassment but only if it is serious. The question of whether a single act is sufficiently serious to amount to harassment is a question of fact and degree (Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 EAT).[64]In the Richmond Pharmacology case, Mr Justice Underhill, President of the EAT, commented that “Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. 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.”[65]The two-stage burden of proof set out in section 136 Equality Act 2010 applies equally to claims of harassment. It is for the claimant to establish facts from which the Tribunal could conclude that harassment has taken place.[66]In Hartley v Foreign and Commonwealth Office Services [2016] ICR D17 the EAT held that the words ‘related to’ have a wide meaning, and that conduct which cannot be said to be ‘because of’ a particular protected characteristic may nonetheless be ‘related to’ it. The Tribunal should evaluate the evidence in the round, recognising that witnesses will not readily accept that behaviour was related to a protected characteristic. The context in which unwanted conduct takes place is an important factor in deciding whether it is related to a protected characteristic (Warby v Wunda Group plc EAT 0434/11). Costs[67]The statutory provisions governing applications for costs are set out in Rules 72 to 76 and Rule 82 of the Employment Tribunal Procedure Rules 2024. The relevant rules for the purpose of this application are: 1. Rule 75 (Procedure): “(1) A party may apply for a costs order… at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. (2) The Tribunal must not make a costs order…. against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order).” 2. Rule 74 (When a costs order or a preparation time order may or shall be made): “(1) A Tribunal may make a costs order…. on its own initiative or on the application of a party…. (2) The Tribunal must consider making a costs order…. where it considers that:(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order …. On the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned….” 3. Rule 76 (The amount of a costs order): “(1) A costs order may order the paying party to pay – (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party….” 4. Rule 82 (Ability to pay): “In deciding whether to make a costs…order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s…ability to pay.”[68]In deciding whether to make an order for costs, the Tribunal must first consider whether the conduct of the claimant falls within Rule 74. If it does, the Tribunal must then go on to consider whether to exercise its discretion to make an award of costs and, if so, how much. The mere fact that a party’s conduct has been unreasonable or that a party has pursued a claim which did not have reasonable prospects of success does not mean that a costs award will automatically follow.[69]Costs remain the exception rather than the rule in Employment Tribunal proceedings (Gee v Shell UK Ltd [2003] IRLR 82). This does not, however, mean the facts of the case have to be exceptional in order for a costs order to be made (Power v Panasonic (UK) Ltd UKEAT/0439/04).
Conclusions
[70]In reaching my conclusions on the complaints of discrimination I have reminded myself of the burden of proof provisions, and of the fact that discrimination is rarely admitted to. I have considered whether the claimant has proved facts from which, in the absence of an alternative explanation by the respondent, I could conclude that discrimination has taken place.[71]The first complaint of discrimination made by the claimant is that the respondent failed to investigate his grievance, and that in so doing it treated him less favourably than a named comparator, Bashir Omar, because of race.[72]That claim is not made out on the facts. The evidence before the Tribunal indicates that the grievance raised by the claimant was investigated promptly. The very day he raised the grievance, 15 August, he was invited to a meeting to discuss it just six days later. He was accompanied by a colleague at the grievance meeting, an investigation into the issues raised by his grievance took place, and the claimant was provided with an outcome to his grievance in writing. I find that the respondent did not fail to investigate the claimant’s grievance.[73]The complaint raised by Mr Omar was also investigated. There were some differences in the investigations, which were carried out by different people, but there was no evidence before me to suggest that the differences were in any way because of race, nor was there any evidence from which I could draw an inference that the differences in the investigation were due to race. Rather I find that they were due to the fact that the complaints raised by Mr Omar and the claimant were different, and the fact that different people carried out the investigation.[74]The circumstances of Mr Omar and the claimant were such that Mr Omar was not an appropriate comparator for the purposes of the direct discrimination claim.[75]In the claimant’s investigation, Ms Gaunt failed to speak to Mr Omar, who the claimant accused of discriminating against him by accusing him of racism. I find this to be surprising, given that the claimant’s complaint, in essence, was that Mr Omar had accused him of racism, but not every failing in an investigation will amount to discrimination. Ms Gaunt took the claimant’s complaint seriously and dealt with it promptly. She reviewed the CCTV footage of the incident on 5 August and listened to the recordings of the meetings held in relation to Mr Omar’s grievance, during which Mr Omar set out his complaint against the claimant.[76]Ms Gaunt formed a view on the key question as to whether Mr Omar had accused the claimant of being a racist, and set out her findings clearly in an outcome letter. Ms Gaunt was, in my view, and based upon the evidence before her, entitled to come to the conclusions that she did. Faced with a complaint of possible racism by an employee the respondent had to investigate it, and the claimant appeared to accept that at the time. Complaints of discrimination are serious and should not be ignored by employers.[77]What the claimant was really upset about, in my view, was the fact that Mr Omar had suggested that the claimant’s behaviour may have been racially motivated. This is despite the fact that Mr Omar appeared, during the mediation meeting, to unconditionally accept the claimant’s apologies and to consider the matter resolved.[78]It is not, in my view, an act of race discrimination for an employee who perceives they may have been discriminated against to raise this as an issue. If it were, then employees would be deterred from raising issues of potential discrimination in the workplace by fear of being accused of discriminating themselves. The Equality Act, through its victimisation provisions, clearly establishes protections for employees who raise complaints of discrimination in good faith. It was not the intention of Parliament to expose those who make complaints of discrimination to retaliatory complaints of discrimination.[79]I find that the claimant was not treated less favourably than Mr Omar. The claimant’s grievance was investigated and the manner in which the investigation was carried out was not influenced by race. During the claimant’s grievance investigation meeting Ms Gaunt expressly told the claimant “I’m trying to find the act of racism from him to you exactly the same as we’ve tried to find the act of racism from you to him, and we haven’t found anything.”[80]The complaint of direct race discrimination is not well founded. The claimant has not discharged the first stage of the burden of proof. The complaint of direct race discrimination fails and is dismissed.[81]The complaint of harassment related to race relates to a one off incident – namely a comment made by Ms Gaunt during the grievance investigation meeting that “Mr Omar was a protected characteristic but the claimant is not”.[82]Ms Gaunt accepts that a comment to that effect was made, and I find that it was. The questions I have to consider therefore are: 1. Was the comment unwanted; 2. Was it related to race; and 3. Did it have the prescribed effect set out in section 26(1)(b) Equality Act 2010?[83]I accept, on balance that the conduct was unwanted by the claimant. He immediately challenged it by asking whether Ms Gaunt meant that he was not protected against racism because he is white.[84]I also find that the comment was related to race. It was in the context of a discussion about complaints of racism in the workplace, and Ms Gaunt accepted in her evidence that by referring to Mr Omar as having a protected characteristic she was referring to his race.[85]The key question therefore is whether Ms Gaunt’s conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.[86]The comment by Ms Gaunt was, as she admitted, clumsy, and it is understandable why the claimant questioned it. It was immediately followed up however with a reassurance that she was not saying that the claimant was not protected against racism because he was white. Ms Gaunt also sought to reassure the claimant that she was trying to treat him exactly the same as the respondent had treated Mr Omar when he made his complaint.[87]There was no evidence before me of any animosity or ill will towards the claimant on Ms Gaunt’s part. If anything, the contrary was true. The claimant’s wife had, until very shortly before the grievance meeting, worked in Ms Gaunt’s team, and the claimant had asked to hug Ms Gaunt when he handed the grievance in. A request with which she complied.[88]There was no evidence before me to suggest that in making the comment Ms Gaunt had the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, nor any evidence from which I could draw such an inference. Rather her purpose was to try and understand and investigate the claimant’s complaint of racism.[89]I have then considered whether it can be said that the comment had that effect on the claimant, even if it was unintended. The claimant has given no evidence to suggest that he was upset, humiliated or degraded by the comment. The meeting continued, and the claimant appeared to accept Ms Gaunt’s explanation for the comment when he questioned it. The comment was almost immediately explained and put in context.[90]Even if the comment did have the proscribed effect on the claimant, which I find that it did not, it would have been unreasonable for it to have had that effect, given the surrounding circumstances and the context in which the comment was made.[91]It was a one off, isolated event which did not in my view, meet the threshold of being a serious incident. Not every slip of the tongue will amount to harassment, and the comment was just that – a slip of the tongue or clumsily worded comment, which was corrected almost immediately by Ms Gaunt.[92]For the above reasons the complaint of harassment fails and is dismissed. Costs application[93]Ms Thomas applied for costs on the grounds, in summary, that: 1. The claimant’s case had no reasonable prospect of success; 2. It is clear from the findings of the Tribunal on the merits of the claim that it had no reasonable prospects of success; and 3. The respondent sent a costs warning letter to the claimant on 15 October 2025.[94]I find that the claim for direct race discrimination did not, on balance, have reasonable prospects of success because it was based upon an allegation (that the claimant’s grievance had not been investigated) that the claimant knew or ought reasonably to have known, was not correct. The claimant attended the grievance meeting on 21 August and did not deny receiving the outcome letter. That being said however, there were some failings in the way in which the respondent dealt with the grievance in that Mr Omar was not interviewed.[95]It cannot in my view be said that the claim of harassment related to race had no reasonable prospect of success. The comment about which the claimant complains was admitted by the respondent. I have found that it related to race and that it was unwanted conduct. Two of the three elements of the test for harassment were therefore made out.[96]The costs warning letter was sent very late in the day, just five days before the final hearing. The respondent has been legally represented throughout these proceedings. There was no evidence before me to suggest any earlier costs warning letters. There have been no applications for strike out and/ or a deposit order made by either set of the respondent’s representatives.[97]The claimant is a litigant in person. There is no evidence to suggest that he has had any advice on the merits of his claim. None of the normal steps that a represented respondent can take to seek to dissuade a claimant from pursuing a meritless claim or put him on notice of a costs application were taken in this case until five days before the final hearing. The claimant has limited his claim to two specific allegations, in contrast with many claimants who come before this Tribunal.[98]The claimant has pursued a claim that has failed. Pursuing a claim that has failed is not in itself unreasonable conduct. Costs do not follow the event in Employment Tribunals. Part of the claim, the harassment complaint, had at least a reasonable prospect of success. Moreover, it is difficult on the information before me to separate out the costs incurred in defending the allegation of race discrimination from those incurred in defending the claim of harassment.[99]As the Court of Appeal reiterated in Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA, costs in the Employment Tribunal are still the exception rather than the rule. Costs do not follow the event. It appears to me that this application for costs can most properly be categorised as an application for costs to follow the event.[100]The grounds for making a costs application are not made out in this case. The claim did not have no reasonable prospect of success, and the claimant has not acted unreasonably in either bringing it or in the way that the proceedings have been conducted.[101]The respondent’s application for costs is therefore refused.