Dr H Al-Mashhadanie v North East Scotland College: 8002573/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002573/2025Venue Aberdeen by Cloud Video PlatformHearing 10 March 2026
Between
Dr Haider Al-MashhadanieClaimantNorth East Scotland CollegeRespondent
Before
Employment Judge HendryMr R Pickard (instructed by Counsel) for respondentDate 19 March 2026
JUDGMENT
The claims for discrimination made by the claimant being out of time and the Tribunal finding that it was not just and equitable to extend the time limit to allow the claims to be heard late, the claims are dismissed.
REASONS
[1]The claimant in his ET1 sought findings that he had been discriminated against on the grounds of his race/religion. Other claims made in the ET1 were withdrawn.[2]The claimant works as a Lecturer in the Department of Mechanical Engineering School run by the respondent.[3]The respondent is an educational institution providing further and higher education in the North East of Scotland.[4]The case proceeded to a case management preliminary hearing on 4 February 2026. This was dealt with by Employment Judge Wiseman who, following the hearing, prepared a Note in which she recorded that the claimant was bringing claims of discrimination under sections 13 and 26 of the Equality Act 2010, that he was relying on his protected characteristics of race (the claimant is Iraqi and ethnically Arab) and on the grounds of his religion which is Islam. Judge Wiseman encapsulated the claims being made in her Note in paragraph 4 as follows: “4. The acts of less favourable treatment are:-• the extension of probation in June 2024 and November 2024. This decision was taken by Ms Michelle Sutherland and Mr Paul Balfour;• being singled out and spoken to aggressively and called unprofessional. The particular acts relied upon are -(i) In April 2024 when Ms Sutherland took on the role of Curriculum Manager, she criticised the claimant in front of 7/8 colleagues at a meeting when she said words to the effect that they should not let the claimant copy them in to emails before having checked the email.(ii) In or about May 2024, Ms Sutherland called the claimant unprofessional whilst he was in a corridor and in front of others and(iii) In or about May 2024 Ms Sutherland, whilst in the staff room, referred to the claimant as unprofessional.• not being provided with a mentor;• not having the 3 week/3 month/6 month reviews carried out;• being asked to take a full teaching timetable and covering sickness absence.”[5]The respondent’s position was that the claims were out of time and that a preliminary hearing should be arranged to determine the issue of time-bar. Accordingly, the case proceeded to a preliminary hearing on 10 March. Prior to the hearing the parties had lodged a Joint Bundle of Documents to which the Tribunal had reference. The claimant was advised that the Tribunal would consider whether or not to allow the claims late under section 123 of the Equality Act 2010.[6]At the outset of the hearing, I indicated that as the claimant was not legally represented I was prepared to ask the claimant questions about his claims and explore the background to their lodging. I told the claimant that Mr Pickard would then put questions to him in cross-examination. The claimant would then have an opportunity of considering his answers in crossexamination and make further comment. I would then hear legal submissions. I told the claimant that if he needed a short break at any point he should say or if he was unsure of any matter to ask me to explain.[7]There was no dispute in relation to the dates of the incidents relied on. I would note however, I gave Dr Al-Mashhadanie an opportunity of confirming, which he did that Judge Wiseman had correctly captured the complaints he was making. Indeed, at a later point in the hearing I was taken to a detailed grievance prepared by the claimant that had been lodged and to the summary of issues there (JB111) which reflected both his position today and the summary made by Judge Wiseman.
Background facts
[8]The claimant originally comes from Iraq. He obtained a degree in Civil Engineering from Baghdad University. Following this he obtained a Master’s Degree in Oil and Gas and latterly a PHD in mechanical engineering. He worked as an engineer. He has a teaching qualification that allows him to teach at Universities and Colleges. The claimant is an intelligent and highly educated professional. He is used to research and is able to use the internet. He worked for some years in the UK before furthering his educational qualifications and becoming an academic. He has lived in Scotland for many years with his wife and young family.[9]The claimant started work with the respondent as a Lecturer in the Mechanical Engineering school on the 21 December 2023. The claimant encountered difficulties particularly with his Line Manager, Michelle Sutherland. He found her aggressive and unwilling to listen to him.[10]When the claimant joined the respondent organisation he was put on a six month probationary period. On 19 June 2023 his probationary period was extended much to his disappointment. He believed that he was being “targeted” by Mrs Sutherland.[11]His probationary period was further extended to 1 November 2023. On or about 1 November following a complaint from a student received by the respondent, a meeting took place between the claimant and the Head of Sector, Mr Balfour. The upshot was that his probationary period was extended once more. The respondent’s position was that at this point Mrs Sutherland had indicated that the claimant’s work was ‘‘satisfactory’’.[12]The claimant felt that he had been treated unfairly. He felt that he had been given insufficient support and that no account had been taken of this or of other difficulties he had encountered. He was the only person from an ethnic minority background in the staff cohort. He felt isolated and believed he was being treated differently from his other white Scottish/British colleagues. As a consequence, the claimant wrote a detailed grievance to the respondent with accompanying supporting documentation. The claimant in his formal complaint document explained that the principal incident that had occurred on 16 April revolved around an email he had sent and which he had copied to others. He had written that on 16 April 2024, “I raised concerns about the health and safety implications of a room layout via email. This resulted in subsequent email exchanges. In one of Michelle’s replies said to me that I should inform her first as she is my line manager. I agreed explaining in my reply that, due to the prolonged absence of the Curriculum Manager and Michelle’s part-time role split between sports school and her department coordination had been challenging. At this point Mr Balfour had indicated that Mrs Sutherland was taking over the temporary role of Curriculum Manager.[13]The claimant wrote (JBp88-90): On 16th April 2024, I raised concerns about the health and safety implications of a room layout via email. This resulted in subsequent email exchanges. In one of Michelle’s replies, said to me that I should inform her first as she is my line manager. I agreed, explaining in my reply that, due to the prolonged absence of the Curriculum Manager and Michelle part-time role split between the Sport School and our department, coordination had been challenging. I followed up on the matter with a Teams call with Michelle, during which I politely and clearly explained the concerns regarding the staff room layout. I also stressed my apology for any confusion caused and clarified that both my intentions and those of the staff were entirely focused on health and safety considerations. I further explained that we were uncertain about her role with us—whether she was fully taking on the Curriculum Manager responsibilities or handling only specific tasks. We were also mindful not to overburden her with additional health and safety concerns, as she had only recently started in the role. The confusion stemmed from a sudden announcement during a meeting where Paul Balfour declared that Michelle would temporarily cover the Curriculum Manager role until Leann Tait returned. It was stated that Michelle's responsibilities would be divided between the School of Sport and the School of Engineering, with only certain days allocated to our department. Michelle appeared to understand my points during the Teams call, and the conversation ended positively, with everything seemingly resolved. However, on 24 April 2024, during a regular team meeting, Michelle asked those involved in the email discussion to remain behind after the meeting. The staff involved were Bruce Smith, Stewart Cardno, Maria Pantzali, Jon Procee, and William Pitt. At the start of her talk, Michelle shouted aggressively at everyone present, without providing clear justification for her behaviour. She stated that it was “very wrong to send that email”, adding that “you shouldn’t do that” and criticising our decision to contact Colin Beattie, the Health and Safety Manager. She claimed he was a “high figure” and implied we had overstepped our boundaries. The way she expressed herself left us feeling humiliated, as though she was indirectly saying “you staff are worth nothing and have no value.” That was precisely the atmosphere and perception she created during the meeting. I reiterated the points I had outlined in my email and the Teams call with her, explaining that I had consulted my colleagues before contacting the Health and Safety team, and we had collectively agreed to send that email. However, I did not explicitly mention to her during this discussion that the choice to contact Colin Beattie was based on our staff discussions. Jon Procee, a colleague with over ten years of experience at the College, had specifically suggested Colin Beattie as the right person to contact because we were unsure who was responsible for handling the room layout concerns……. At no point did he indicate that we should not have contacted him or that we had acted inappropriately. Despite this context, Michelle publicly insulted me in the meeting, stating: “If he sends an email, you should read it before he CC you in.” I found this remark degrading and disrespectful, particularly given that I had already communicated my rationale and sought input from my colleagues before sending the email. To address her comments directly, I said: “As we are all present in this meeting and involved in the email discussion, let me ask my colleagues directly. If anyone disagrees with the content of that email, please raise your hand and let us know.” None of my colleagues raised their hands, confirming that everyone supported the content of the email. ……..Michelle’s handling of the situation not only failed to resolve the concerns but also created a hostile environment’’[14]The claimant found Mrs Sutherland difficult. He felt that she treated him as if he was stupid or a child. She did not accord him any respect despite his qualifications. He did not think that the continuation of the probation was justified as there had been various difficulties caused by the respondent including a postponement of the class observations that had to be carried out.[15]The difficulties at work he had encountered had taken a toll on the claimant. He was also diagnosed with Covid. He began a period of sickness absence from work from November until March when he returned on a phased basis.[16]A grievance hearing took place on 11 February 2025. The respondent carried out an investigation. The claimant was given a grievance outcome letter on 30 April 2025. He was unhappy that his complaints were not upheld.[17]On 16 May 2025 the claimant appealed. The claimant was notified of the appeal outcome by letter dated 16 June 2025. His appeal was generally unsuccessful except in relation to the issue of probation. It was accepted that the continuation of his probation was not appropriate and the completion of his probation was backdated.[18]The claimant returned to work on a phased return from sickness but was still aggrieved both at what had happened when he had been at work in 2024 but also about the way in which the respondent had dealt with his grievance. He felt that the grievance had not been dealt with properly and that some witnesses had not been spoken to and that evidence had been ignored. He concluded that there had been a “cover up”.[19]The claimant spoke to a colleague, a William Pitt in June 2025. It was at that point he became aware that Michelle Sutherland had told Mr Pitt (in April 2024) that he should leave the College.[20]Since raising proceedings Mrs Sutherland has left the employment of the respondent as has Mr Balfour.[21]During the period latter half of 2024 the claimant’s wife was expecting a baby. The claimant needed to know about the end of his probation period in order to obtain a mortgage and move house. He was unable to do so. The continuation of his probation caused him considerable stress and anxiety.[22]On another occasion in front of colleagues in relation to the postponement of the probation Mrs Sutherland said to him “it’s unprofessional to discuss probation in the staff room”. She said this a number of times.[23]The claimant had concerns about the workload he was under as well as management. He did not believe that Mrs Sutherland’s behaviour was in accordance with the College’s Code of Conduct. He did not accept that Mr Balfour had carried out a proper investigation describing it as “enabling a culture of bullying and favouritism.”[24]The claimant’s appeal against the grievance outcome was detailed (JB.121- 153). The claimant received a letter on 16 June 2025 in relation to his appeal. The respondents refused to re-open the investigation and upheld the claimant’s grievance in relation to the problems with probation and the grievance procedures. The claimant had some assistance from his trade union. They had told him to await the outcome of the internal appeal before considering further action. After he told them that he was dissatisfied with the outcome of the appeal he was told that they would take legal advice about his position.[25]At the end of July 2025 the claimant was advised that the union would not support a claim to the Employment Tribunal. The claimant had not until this point researched his employment rights or had been aware of any time limits. His understanding was that he needed to exhaust the internal processes. He also wanted to gather evidence of what he regarded as discriminatory behaviour.[26]The claimant researched his legal position. He contacted ACAS on 15 August. The conciliation period ended on 26 September. He lodged his Employment Tribunal claim on 24 October 2025. Witness evidence[27]I found the claimant an articulate and intelligent witness and one who gave a detailed account of his position, which he held honestly, in a straightforward and clear manner. However, I found it difficult to find support for his belief that the motivation for the actions of Mrs Sutherland and Mr Balfour related to either his race or religion and he was unable to point to any particular factual matters, other than his perceived difference in treatment, that would indicate discrimination on either basis. Submissions[28]I invited the claimant to make submissions in relation to his application under section 123 to extend time. I had explained what was envisaged by the section. Given that the claimant was a party litigant I suggested that Mr Pickard gave his submissions first before the claimant responded.[29]Mr Pickard expressed that the Tribunal has a wide discretion but that granting an extension was still the exception rather than the rule. He made reference to a number of legal authorities. He pointed out that the claimant was highly educated and able and that there was really no good reason why after he had thought he had been discriminated against in April 2024 he had not researched his legal position and raised proceedings. The claimant in his evidence had said that he had hoped that the matter would (in accepting the Judge’s words) blow over but he also wanted evidence to show that discriminatory behaviour was taking place. The essential difficulty the claimant faced was his erroneous belief that he had to wait until the internal procedures had concluded before raising proceedings. He had not checked this belief was correct. The last complaints of discrimination relate to the extension of probation on the 11 November 2024. The claims were not finally raised until October 2025. There is a considerable period the claimant has to explain. Even accepting that he was unwell and returning to work on a phased return (24 March 2025) there was still ample time for him to raise proceedings.[30]It was also clear he suggested that from the identified complaints that the claims are weak. There is no indication that Mrs Sutherland or Mr Balfour were behaving in the way alleged because of race or religious discrimination. In other words, there was nothing to show causation. There were no comparators identified. Mr Pickard then made reference to the burden of proof. The position was that the “something more” required by the law was absent. I then considered prejudice owing to the fact that two essential witnesses had left the College’s employment. Dr Al-Mashhadanie vigorously tested this indicating that they could be cited as witnesses and would be required to attend. Nevertheless, Mr Pickard indicated that there was still a level of forensic difficulty that the respondents would face and that there was no guarantee that the witnesses would co-operative. Accordingly, there was some prejudice to the respondents through the statutory time limit of three months not being adhered to. In his view the fact that the claimant learned about another incident involving Mrs Sutherland in June 2025 did not assist him as it added nothing to the existing claims.[31]Dr Al-Mashhadanie indicated that he had done what he could to protect his position. He had submitted the proceedings following receipt of the final appeal outcome. He contacted ACAS in the appropriate way and raised proceedings. His position was that he did not know what the law was. He is a party litigant. It was understandable for him to wait until the proceedings were dealt with before recourse to the Employment Tribunal’s system. He made reference to stress and ill-health that he had suffered in late 2024 and early 2025. The respondent has detailed records of the grievance, investigation and outcome. Even if Mrs Sutherland and Mr Balfour have left they can be cited to attend as witnesses. Discussion and Decision[32]The time limits for claims under the Equality Act 2010 are set out in section 123 of the Equality Act 2010. Proceedings may not be brought after the end of(a) the period of three 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.[33]In Robertson v Bexley Community Centre t/as Leisure Link 2003 IRLR 434 the Court of Appeal in England stated that when employment tribunals consider exercising the discretion under section 123 (1)(b) of the Equality Act 2010 there is no presumption that they should do so unless they can justify failure to exercise the discretion. A tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. This does not mean that exceptional circumstances are required before the time limit can be extended on these grounds. In exercising the discretion to allow out of time claims to proceed the tribunal may also have regard to the checklist contained in section 33 of the Limitation Act 1980 (see British Coal Corporation v Keeble and Ors 1997 IRLR 336). Section 33 requires the court to consider the prejudice that each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case in particular the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the party sued has cooperated with any requests for information, the promptness with which the claimant acted once he or she knew of the facts giving rise the cause of action and the steps taken by the claimant to obtain advice once they knew of the possibility of taking action.[34]In Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 EWCA Civ 23 the Court of Appeal held it was not healthy for the keyboard factors to be taken as the starting point for tribunals approach to extensions. The best approach for a tribunal in exercising the discretion is to assess all the factors in the particular case that it considers relevant including in particular the length of and the reasons for the delay.[35]In Miller and others v The Ministry of Justice and Thompson v Ministry of Justice & Department for Communities and Local Government [2016] UKEAT 0003_15_1503 the Employment Appeal Tribunal considered whether it was just and equitable to extend the 3 month primary limitation period for the benefit of many part-time judicial office holders whose claims against the Ministry of Justice under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 were found to be out of time. Appeals against the findings on the primary limitation period had already been dismissed by the Court of Appeal.[36]Laing J in EAT reaffirmed the well-known passage in Robertson v Bexley Community Centre [2003] EWCA Civ 576 that whilst the discretion to extend time is a wide one (paras 23 and 24), time limits are to be observed strictly and there is no presumption that time will be extended: the exercise of the discretion is still the exception rather than the rule (para 25).[37]Laing J also reflected on the “balance of prejudice”, which is usually very relevant in an application to extend time. She rejected the contention that it was an error of law not to expressly balance the relative prejudice to the parties stating that it is for the ET to decide which potentially relevant factors are in fact relevant and that the prejudice to a respondent of losing a limitation defence is “customarily relevant” to the exercise of this discretion.[38]She went on, citing DCA v Jones [2007] EWCA Civ 894 that it was obvious that if there was forensic prejudice to a respondent, that will be “crucially relevant” in the exercise of the discretion and telling against an extension of time.[39]In the present case the claimant did not lodge proceedings in or around April 2024 for one principal reason namely he accepted in evidence that he hoped that the matter would ‘blow over’ and he that the relationships with Mrs Sutherland would improve. He also wanted to gather evidence to support his suspicion that there was something discriminatory in her behaviour towards him. When he resolved to lodge a grievance in November 2024 he thought that he would have to finish the internal process before raising legal proceedings and hoped that the investigation would uncover evidence of discrimination. This was an understanding that he had formed himself but which was reinforced by the advice he got from his trade union representative to complete the internal processes.[40]He finally took some time and researched his employment rights and how to raise proceedings after his trade union had told him that they were not supporting any claim to a Tribunal. As noted the claimant is highly educated and it is noteworthy that relatively quickly after this he was able to raise proceedings. By this time however the events between March and November 2025 are clearly out of time.[41]Mr Pickard argued that there would be some prejudice to the respondent as the two main protagonists Mr Balfour and Mrs Sutherland have left the respondent’s employment. He was not able to demonstrate any significant prejudice and led no evidence on the matter. I do not place much weight on this submission. The complaints made by the claimant were in writing and subject to a detailed investigation and a subsequent appeal. The respondent seems to have the necessary documentation and material to be able to respond to any allegations. Other than facing late claims I do not see any significant prejudice. As the claimant commented if either protagonists do not appear at the hearing voluntarily then they can be cited to attend. There is no hint that they have emigrated or are otherwise unavailable or indeed that they would not cooperate.[42]The claimant should, in my estimation, have taken steps earlier to understand his legal position and to protect it by raising proceedings much earlier than he did. He took a risk by waiting. The claims are considerably out of time even accepting, which is denied, that there was a course of conduct the claimant says that the last act of discrimination was the extension of his probation in November 2024.[43]In the case of Kumari v Greater Manchester Mental Health NHS Foundation Trust (2022) EAT 132 the EAT held that the tribunal may take into account its assessment of the merits of a claim when deciding whether or not to allow a ‘just and equitable’ extension. That case related to amendment but the principle must remain the same that when considering an application for a just and equitable extension the merits of the claim can be considered. It should be borne in mind that the case makes clear that the tribunal should not conduct a trial. In the present case the claimant is not advancing what looks to be a strong claim. His own narrative of the events around the email that he sent seems to suggest that Mrs Sutherland was berating all those involved and not just the claimant.[44]In considering the pleadings there are be assertions of race or religion being the motivation for the actions of Mrs Sutherland and Mr Balfour but as Mr Pickard pointed out the claimant’s own narrative involves other staff, at least at the beginning of the difficulties . There is little or no factual basis that would point in either the direction of race discrimination or religious discrimination other than what the claimant believes to be unreasonable behaviour by his employers in extending his probation. It is not unusual for a claimant to seek to overcome the requirement to show ‘‘something more’’ than to point to differences in treatment but it is well established that conduct which is unreasonable or unfair in itself is insufficient to do so ( Bahl v Law Society).[45]The strength of the claims being made is just one factor and considering the matter in the round the claimant has not demonstrated that it would be just and equitable to allow the claims to be heard late and in the absence of such an exercise in discretion the claims are out of time and must be dismissed.