Mrs DP HillMr PR TriggDr R Ibakakombo (instructed by Lay Representative) for claimantMr C Crow (instructed by Counsel) for respondentDate 6 March 2017
JUDGMENT
JUDGMENT having been sent to the parties on 7 March 2017 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claim. We do not propose to dwell on the background to the claim at this stage as this is set out in some detail in the explanatory note to the orders made by Employment Judge Camp at a Closed Preliminary Hearing (CPH) on 28 September 2016.[2]The issues. These are set out in the explanatory note to Judge Camp’s CPH order; a later order he made ex parte dated 10 November 2016 which was sent to the parties on 1 December 2016, and “Additional Information” dated 6 October 2016 from the claimant. The parties provided their own lists of issues; but they were not agreed. In short, the issues concerned multiple claims of direct race discrimination, and victimisation; and one claim of harassment related to race, contrary to the Equality Act 2010 (“EqA”).[3]The evidence. We received oral evidence from the following witnesses: The claimant Miss Kosiwoa Esinu Akogo And on behalf of the respondent: Mrs Nadine Webster Case Number 1302027/2016 2 Mrs Tina Thompson Miss Ramla Saleh Mr Mark Horgan We also received documents which we marked as exhibits as follows: C1 claimant’s chronology-not agreed C2 claimant’s list of issues-not agreed C3 claimant’s closing submissions R1 agreed bundle of documents (395 pages) R2 bundle of witness statements R3 respondent’s chronology-not agreed R4 respondent’s proposed trial timetable-agreed R5 respondent’s list of issues-not agreed R6 respondents cast list-agreed R7 respondent’s closing submissions[4]The law.4.1 Section 26 EqA: Harassment related to race. Rather than set out the wording of the EqA, this is the test to be applied arising from it:4.1.1 Did the respondent’s employee Ms Elena Manafikhi engage in unwanted conduct?4.1.2 Was the conduct related to the claimant’s protected characteristic of race?4.1.3 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?4.1.4 If not, did the conduct have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?4.1.5 In considering whether the conduct had that effect, the Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.4.2 Section 13: Direct discrimination because of race. The test arising here is this:4.2.1 Has the respondent subjected the claimant to treatment falling within section 39 EqA?4.2.2 Has the respondent treated the claimant as alleged less favourably than it treated or would have treated the comparator?4.2.3 If so, has the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic? Case Number 1302027/2016 34.2.4 If so, what is the respondent’s explanation? Does it prove a nondiscriminatory reason for any proven treatment?4.3 Section 27: Victimisation. Section 274.3.1 “A person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act.”4.3.2 Section 27(2) defines the following as constituting protected acts: “(a) bringing proceedings under the EqA; (b) giving evidence or information in connection with the proceedings under the EqA; (c) doing any other thing for the purposes of or in connection with the EqA; or (d) making an allegation (whether express or not) that the person alleged to have subjected the claimant to detriment or some other person has contravened the EqA.”4.3.3 Section 27(3) provides that giving false evidence or information, or making a false allegation is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.4.3.4 The starting point is that there must be a protected act. If the claimant cannot establish that she has in fact carried out a protected act as defined by subsection (2), her claim will not succeed unless the Employment Tribunal concludes that the person alleged to have victimised the claimant believed they had done so or may do so. It is necessary for that person to know of the protected act or suspect there has been a protected act.4.3.5 Case law has established that a mere assertion of discrimination without reference to a protected characteristic will not, without more, (for example relevant background information known to an employer) constitute a protected act. 4.3.5 If there has been a protected act, the Employment Tribunal must then consider whether the claimant was subjected to detriment because of it. The provisions of the EqA essentially operate with a 3-stage approach. In summary, to determine whether an employee who has made a protected act has been subjected to detrimental treatment, the Employment Tribunal must first consider whether the claimant has established that the act or omission occurred. If not, the claim will fail on the facts. If so, the Tribunal must decide whether the act or omission was detrimental. If so, the Tribunal must then determine whether the protected act influenced the detrimental treatment. Case Number 1302027/2016 4(1) states as follows:4.4 Section 136 of the EqA contains provisions regarding the burden of proof and, insofar as is material, states: “(1) This section applies to any proceedings relating to a contravention of this Act.4.4.1 The EqA, concerning the burden of proof, and when that burden reverses, is essentially the same as in the predecessor equalities legislation. However, in practice, few cases turn on the question of whether the burden has reversed. Either there is a prima facie case for the respondent to answer, or there is not.4.4.2 In cases where there is a real issue as to whether the burden has reversed, the existing authorities are likely to be relevant. The Court of Appeal in Igen v Wong and others [2005] IRLR 258, considered the question of the burden of proof in direct discrimination cases, and approved an amended version of the guidelines set out in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, which recommend a two-stage approach. The Court of Appeal clarified that although there is a two-stage process, this does not require tribunals to divide hearings into two parts, and that generally the tribunal would wish to hear all the evidence, including the respondent’s explanation, before deciding whether the requirements at the first stage are satisfied and, if so, whether the respondent has discharged the onus shifted to it. At the first stage the complainant is required to prove facts from which, in the absence of an adequate explanation from the respondent, discrimination could be concluded. At this stage the tribunal must assume there is no adequate explanation. It is for the complainant to prove facts from which discrimination could be inferred but these facts could come from any evidence before the tribunal, including evidence from the respondent. At the second stage, the respondent is required to prove that it did not commit, or is not to be treated as having committed, the unlawful act, if the complaint is not to be upheld. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of, in this case, race, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive. That requires the tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that the claimant’s protected status was not a ground for the treatment in question. The approach in Igen, as further clarified by the EAT, was confirmed by the Court of Appeal in Madarassay v Nomura International Plc [2007] IRLR 246 CA. Case Number 1302027/2016 54.4.3 Subsequent EAT judgments such as Laing v Manchester City Council [2006] IRLR 748 EAT and Network Rail Infrastructure Ltd -v- Griffiths-Henry [2006] IRLR 865 have made it clear that as regards direct discrimination there is a distinction between the explanation for treatment (which must be disregarded at stage 1) and facts which establish the treatment could not have been less favourable and/or could not have been on the grounds of the person’s protected status (which are relevant at stage 1, because they may demonstrate that the claimant has failed to reverse the burden). As regards direct discrimination, it is well established that unreasonable treatment plus a difference in protected characteristic does not, of itself, shift the burden to the employer to provide an explanation. Helpfully, the EAT has repeatedly made it clear that it will not be an error of law for the tribunal to assume the burden has shifted and to proceed to consider the stage 2 explanation, in line with the “reason why” approach suggested by Lord Nicholls in Shamoon v Chief Constable Royal Ulster Constabulary [2003] UKHL 11, although caution must be exercised as this could disadvantage the respondent. If the burden does shift and the respondent’s explanation is not forthcoming, is inadequate, or suggests that possession of a protected characteristic was an operative cause of the treatment, the statutory wording requires that a conclusion that there has been unlawful discrimination must follow.(2) If there are facts from which the court could conclude, 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.”4.5 Section123 EqA has this about time limits: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.4.5.1 The respondent took time points in defending the claims alleged to have taken place on 1 February 2016. In dealing with the issue of a continuing act, we had regard to the legacy case law which pre-dated the EqA, as it is still relevant. In the case of Calder –v- James Finlay Corporation Limited [1989] IRLR 55, which was approved by the House of Lords in Barclays Plc –v- Kapur and others [1991] IRLR 136, where it was held that an act extending over a period gave rise to continuing discrimination throughout employment when the claimant then was told that she was not “eligible” for a mortgage subsidy and alternatively this was subjecting her to a detriment whilst employment continued. A continuing act should be approached as being a rule or regulatory scheme which during its currency continues to have a discriminatory affect. The fact that a claimant continued to be paid less than a comparator was a consequence of the decision not to up-grade, not a continuing act of discrimination in the case of Sougrin -v- Haringey Health Authority [1991] IRLR 447. The matter was looked at again in the case of Cast -v- Croydon College [1998] IRLR 318. The Court of Appeal held, amongst other things, that the claimant’s complaint was of several decisions by the employer which indicated the existence of a discriminatory policy in her post and its application to her and that this constituted an “act extending over a period”. Later, the Court of Appeal considered the case in Hendricks –v- Commissioner of Police for the Metropolis [2003] IRLR 96. The question is whether the acts complained of by the claimant amounted to an “act extending over a period” as distinct to a succession of unconnected or isolated specific acts, for which time would begin to run from a date when each specific act was committed. The claimant had the opportunity of showing at a full hearing that the incidents were linked to one another and that they were evidence of a “continuing state of affairs”.4.5.2 In considering the exercise of our discretion over the three month time limit applying to the EqA, we have to consider whether it is “just and equitable” to let the case, or part of it, in after three months if the acts complained of are out of time and do not form part of an act extending over a period. The case of British Coal Corporation v Keeble [1997] IRLR 337 provides the guidance on how to exercise our discretion. This was considered later in the case of Chohan v Derby Law Centre [2004] IRLR 685 EAT. We also considered the matters mentioned in s.33 of the Limitation Act 1980. Although that refers to the broad discretion for the court to extend the limitation period of three years in cases of personal injury and death, it also requires the court to consider the prejudice which each party would suffer because of a decision to be made. We are required to have regard to all the circumstances of the case and amongst other things, to – (a) The length of and the reasons for the delay. (b) The extent to which the cogency of the evidence is likely to be affected by the delay. (c) The extent to which the respondent had co-operated with any request for information. Case Number 1302027/2016 7 (d) The promptness with which the claimant acted once she knew of the facts giving rise to the cause of action. (e) The steps taken by the claimant to obtain appropriate professional advice once she knew of the possibility of taking action.4.5.3 In the case of Robertson v Bexley Community Centre [2003] IRLR 434 the Court of Appeal confirmed that the Employment Tribunal had a wide discretion in determining whether or not it was just and equitable to extend the time. The tribunal is entitled to consider anything that it takes to be relevant. Nevertheless, the case re-asserts that time limits are exercised strictly in Employment Tribunal cases. When considering the discretion over a claim that is out of time, and whether the time should be extended on just and equitable grounds, the Court of Appeal said that there was no presumption that the tribunal should do so. The tribunal cannot hear a complaint, unless the claimant convinces it that it is just and equitable to extend the time. Thus, the exercise of the tribunal's discretion is the exception rather than the rule.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Case Number 1302027/2016 6[5]Findings of fact. We make our findings of fact based on the material before us taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. We have resolved such conflicts of evidence as arose on the balance of probabilities. We have considered our assessment of the credibility of witnesses and the consistency of their evidence with the surrounding facts. We have made our findings of primary fact. We have considered what inferences we should draw from them for the purpose of making further findings of fact.[6]The claimant worked at premises of the respondent called “Abbey Park” which is an 84-bedded nursing, nursing dementia, residential and residential dementia care home in Coventry. The Home is split into 5 units across 3 floors. Greyfriars unit is located on the ground floor and offers dementia nursing care for up to 15 residents. Arden unit is located on the first floor and offers nursing care for up to 15 residents. Avon unit is located on the first floor and offers nursing care for up to 15 residents. The Meadows is located on the ground floor and offers dementia residential care for up to 15 residents. Sherbourne Suite is located across the basement, ground and first floor and offers residential and private nursing care for up to 24 residents. The Home Manager is Mrs Tina Thompson, and her Deputy is Mrs Nadine Webster. At the time of the allegations there were 15 residents being cared for on Avon unit where the claimant was working on an 8pm to 8am shift, otherwise known as a working night shift.[7]In Great Britain, the respondent employs some 6,800 people and there were about 120 where the claimant worked. The respondent is a company limited by guarantee. It is a registered charity. At Abbey Park 51% of the workforce were Black, Asian or from other minority ethnic groups and 49% were White British. There is quite a spectrum of ethnicity here, some of which were: Romanian, Belgian, Black African, Black British, Black African French, Black African Togolese, and Black African Dutch. Case Number 1302027/2016 8[8]The claimant was born on 11 November 1972 and is now 44 years of age. She has 4 children whose current ages are: 16, 7, 6 and 4. She was born in Liberia. Her first language is English. She graduated from High School at the age of 21, her period of study being extended by war in Liberia. She had vocational training and qualified as a seamstress. Her partner was in Belgium for a time; and in 2006 he called for her to join him. They had one child then and she went to Belgium with her child. She had training as a care assistant in Belgium from 2006 to 2008; and in 2008 starting working in a care home. Because of her partner she took Belgian nationality. In 2014 unfortunately the relationship with her partner broke down and she decided to move to the UK. One of the main reasons for coming to the UK was that her children spoke Dutch in their Belgian school; she did not speak this language and therefore communications between her and the children were difficult; and she wanted to educate them in English in English schools, which she had a high regard for. Once she came to the UK she signed up with an agency and did a variety of placements including, for example, packing flowers. She then saw that the respondent was advertising vacancies on the internet; and she applied to it directly, was interviewed and obtained her job as a care assistant. The claimant’s gross weekly pay was £253.80 per week for a 36- hour week. The claimant had a written contract and there were numerous policies and other ancillary contractual documents that she had received, including: the respondent’s Disciplinary Code and its Standard of Care for Night Staff. The terms of her contract were well documented and we could see them in the bundle; and the claimant accepted that she had received them. The claimant commenced work with the respondent on 18 August 2014 and for our purposes the claimant’s employment with the respondent was uneventful until the weekend of 29 January 2016.[9]During December 2015, in the period between Christmas and the New Year, a photograph of the claimant in which she appeared to be asleep was delivered anonymously to Mrs Webster (page 120A). It was pushed under her door together with two other photographs, of two other carers who also appeared to be asleep. There was nothing with the photographs to indicate when they had been taken in terms of the date or the time or by whom. The photograph of the claimant appeared to show her asleep in a chair in the Sherbourne main lounge area. She passed the photographs on to Mrs Thompson who first saw them on 6 January 2016; and she said she would speak to HR about what to do with them. They were both unsure as to how to manage this situation.[10]Towards the end of January Mrs Webster was told that HR had advised that they speak to the individuals in the photographs to find out whether they were clear about the non-sleeping policy adopted by the respondent, their comments on whether they had ever been asleep whilst on night duty and their views generally on the photographs. It was plain in the documentation before us that it was not permissible to sleep on night duty; and this was for obvious health and care reasons, since the respondent catered for vulnerable residents. Case Number 1302027/2016 9[11]Before Mrs Webster could arrange these meetings, on the morning of Saturday 30 January 2016 at 8am, whilst she was still in bed at home, and off duty, she received a telephone from one of the claimant’s colleagues, Ms Elena Manafikhi, who was a Registered Nurse, and in effect the Line Manager to the claimant. She was tearful over the telephone and explained to Mrs Webster that she had concerns about the claimant’s conduct and behaviour during the night shift over the night of 29 to 30 January. Ms Manafikhi explained to Mrs Webster her two main concerns:a. firstly that she was concerned that the claimant was sleeping on duty that night as she had seen the claimant in the TV room with her eyes shut breathing heavily; andb. she was upset with the claimant’s behaviour towards her. She explained to Mrs Webster that the claimant shouted at her and accused her of being unwilling to help colleagues with the work on the unit.[12]When Mrs Webster attended at the Home on Monday 1 February she was almost immediately approached by the claimant (who was not supposed to be on duty that day but came in anyway); and she explained to Mrs Webster that she had a complaint against Ms Manafikhi, who the claimant said shouted at her during the shift on 29 January 2016. Mrs Webster explained to the claimant that she was already aware of an incident and that she would be asking her to come back to the Home later when she had arranged a minute taker as she had been advised by Mrs Thompson to take a statement from both the claimant and Ms Manafikhi and everyone else involved in the incident.[13]Mrs Thompson had contacted the Area Manager and the HR Department at this stage for advice on how to proceed. She was informed of what to do, and told Mrs Webster that she should continue with the previously agreed steps in relation to the photographs that they had received; and that she should discuss the photo with the claimant whilst discussing the incident of 29 January 2016. As Ms Manafikihi was not on duty until 2 February Mrs Webster decided to start her investigations by speaking to the claimant about her concerns relating to 29 January. We were able to see a copy of the notes taken during this interview (87-94) and they had been signed at the time. Copies of these were presented to the claimant who had an opportunity to amend them. The claimant signed and dated every page. During the interview Mrs Webster asked the claimant some general questions about the night shift on 29 January. During this conversation, the claimant indicated to Mrs Webster that whilst on duty that night she supported two residents in particular, JA and GM. She explained to Mrs Webster that she had assisted both in re-positioning them on her own on one occasion each that night (88). Both residents had been risk assessed and required two people to reposition them (121-122). The way the claimant described how she had repositioned the two that night concerned Mrs Webster, as it appeared to be in breach of the correct moving and handling procedures and safe systems of work. We could see the policy and the residents’ information in the bundle. During the interview Mrs Webster showed the claimant the photograph that was previously put under her door showing the claimant allegedly asleep on the Case Number 1302027/2016 10 night shift. The claimant’s response to the photograph was that she thought the photograph was taken on Friday 29 January (92). Mrs Webster noted that this was the night that Ms Manafikhi alleged to her that the claimant had been sleeping whilst on duty. This was a concern to Mrs Webster and flagged up to her that Ms Manafikhi’s concern about the same event may have been correct.[14]Mrs Webster explained to the claimant that the photograph was in fact provided to her during the Christmas period. In response to this, the claimant accepted that she did work 3 nights in a row during the Christmas period and further accepted that she remembered going to sleep at that time whilst on duty. In fact, the claimant confirmed that she was asleep and that she woke herself up when she heard a call bell ringing from one of the residents’ rooms (92). The claimant accepted that she should not have been asleep whilst on duty and accepted that the photograph showed that she was sleeping (92).[15]In relation to the alleged altercation between the claimant and Ms Manafikhi, the claimant explained that she had been asked to assist the staff on another unit; but said that she did not attend as she thought someone would come and get her when required; but no one came. She confirmed that there was a disagreement about this issue. The claimant implied that she had not had sufficient support on the unit she was at; and that Ms Manafikhi provided no assistance.[16]Julie Green typed up the notes of the meeting; the claimant signed them and these signified that the claimant was asleep in the lounge, after an amendment, and not in the resident’s bedroom.[17]Mrs Webster then sought advice from Mrs Thompson about what the next steps should be. Mrs Thompson made the decision and advised her to suspend the claimant from duty with pay with effect from 1 February 2016, pending an investigation into the allegations made against the claimant. Mrs Webster’s personal concern primarily was about two things; which if proven would place the respondent’s residents, most of whom are vulnerable and unable to voice any concerns about the care they receive, at significant danger; and would be regarded as gross misconduct, namely:(i) sleeping on duty; and(ii) manually handling two residents in breach or the respondent’s health and safety practices. The decision to suspend the claimant was made by Mrs Thompson and not by Mrs Webster. This was not a disciplinary sanction; but was a neutral act and did not imply any guilt. The suspension was to enable Mrs Webster to carry out the investigation into the alleged conduct and also protect the residents in the light of the serious allegations against the claimant, in case they were found to be proven. The respondent and the Home are Care Quality Commission regulated and governed by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. These require the respondent and the Registered Home Manager to ensure that the services that they operate are always safe; that any complaints are properly investigated, and service users protected from any further risk complained of. Mrs Webster therefore felt that the decision to suspend was appropriate; having been told to carry it out by Mrs Thompson, and necessary, Case Number 1302027/2016 11 in the light of the regulatory obligations. The decision to suspend was confirmed to the claimant by letter on 1 February 2016 (76-77).[18]Ms Manafikhi was not suspended, the reason being that she did not face allegations of sleeping on duty and breach of the manual handling rules and policy. The two other Black people in the photographs were also under investigation for sleeping. The outcome for them was that they were given final written warnings. Unlike the claimant, they did not accept having slept on duty. We point to the fact that the claimant made admissions of sleeping to Mrs Webster.[19]Having reflected on the matters discussed with the claimant and considering the conversation that she had with Ms Manafikhi on 30 January, Mrs Webster decided that the key matters that she needed to investigate were four things:a. The claimant allegedly sleeping on duty during the Christmas period.b. The claimant allegedly sleeping on duty on 29 January.c. The claimant’s moving and handling technique used on 29 January in relation to residents JA and GM; andd. The request for assistance at the Meadows and subsequent altercation between staff on 29 January involving the claimant, Ms Manafikhi (White Romanian), Jane Palmer, a Senior Care Assistant (White British), and Saleh Mangwiro, a Nurse (Black African, non- British).[20]Mrs Webster set about her investigation, interviewing all the relevant people: Jane Palmer, Ms Manafikhi (who was also a Registered Nurse), Ms Mangwiro and a registered Clinical Lead Nurse Ommie Tshuma (Black African, non-British).[21]The claimant then submitted a letter of resignation on 8 February 2016 (78), although it is dated 4 February; and it states as follows: “Dear Nadine, I came to your office 1st February 2016 to complain Helena seeking justice but unfortunately justice was deny and I was awarded suspension on allegation of gross misconduct instead. When I talk to you on Monday morning 1st February 2016, I could see in your face a sense of human but to my surprise after I left you and went home you call me two hours later to give me a suspension letter. I am deeply disappointed that I am a victim of racism. My question is have I been victimized because of the colour of my skin. I though Helena and I would have been treated equally and fairly but instead she walk away freely because she is white and I am black. I Case Number 1302027/2016 12 though the British people has done with racism especially at the work place. Secondly concerning the photo that you show me indicating that I was asleep, I have never slept on duty and never will. That photo is a scam and I do believe that my image was change in such position. Black people has been targeted in this scam at Abby Park, is there a ready why? What have we people of colour done to deserve such a treatment. Why must you allow someone to fake people on the internet or gsm. Is MHA allowing people to use gsm at the work place to take people photo? Is this ethical? Why not use a camera if that is the case, and why is this targeted on black people alone. I thought that the British people were done with racism especially in the work place. I have been victimized by racism in this regard and in view of the aforesaid, I request that you consider this letter as my resignation.”[22]We would say briefly at this stage that on the face of it, this is a protected act.[23]In light of the resignation letter received from the claimant; and after seeking advice from HR, Mrs Webster wrote to the claimant on 9 February 2016 to give the claimant the opportunity to reconsider her resignation (80- 81). She confirmed in the letter that she was concerned about the allegations that the claimant was now making; wanted to meet with her again to understand her concerns and consider them as part of her investigation process. She invited the claimant to meet with her again on 15 February to better understand her views, and thus be able to conduct the investigation thoroughly and fairly. The meeting took place earlier on 12 February at the claimant’s request.[24]In the meantime, Mrs Webster interviewed: Natasha Powell, a Senior Care Assistant (White British) on 8 February; then Sarah Ingram, Care Assistant (White British) on 9 February (she had observed the altercation), Lauren Chapman, Care Assistant (White British) on 9 February, and Victoria Okunrinboye, Care Assistant (Black African/British) also on 9 February.[25]The claimant’s interview with Mrs Webster on 12 February is noted in the bundle (112-120). The claimant signed and dated each page after amendment. She withdrew her resignation and this was accepted.[26]In the meeting Mrs Webster referred the claimant to the part of her letter which suggested that Black people had been targeted at the Home. She asked the claimant why she had said that. Her response was: “I just wrote it”. She therefore queried with the claimant whether she meant anything by it; and the claimant’s response was to say: “No”. Towards the end of the interview, Mrs Webster again queried with the claimant the allegations that she had made in relation to racism. She explained that in the letter the claimant suggested she felt to be a victim of racism and Mrs Webster queried whether Case Number 1302027/2016 13 she still felt the same way. She confirmed: “No”. Mrs Webster explained that in the claimant’s letter she suggested that Black people were victims of a “scam” at the Home and that was a reference to the photograph. The claimant said: “I wanted to be heard. It was what came to my mind, sometimes you say or write things at that point in your mind, that’s what came to mine to make me be heard” (119). This indicated to Mrs Webster that the claimant did not actually mean what she wrote; and simply wrote it because, as she said, she wanted to be heard. To be sure on this point, Mrs Webster asked the question again, if the claimant felt there was any scam she needed to know about it; and the claimant confirmed: “No”. The claimant had responded twice to her in that way and Mrs Webster felt it was clear now that the claimant did not wish to pursue any further the allegations of discrimination that she had raised in her resignation letter; and in fact, the claimant was now saying that any such allegations were without merit. These were reasonable conclusions to come to on the exchange that they had.[27]In fact, the claimant amended the notes at 119, when discussing being the victim of racism; and in the claimant’s handwriting she stated: “No. Not at this time”. The two discussed a range of issues including the sleeping. Mrs Webster gathered information about the two residents, the claimant’s training records, revisited the disciplinary policy, the code of conduct (and as we said before we could see these in the bundle). Mrs Webster put together a report dated 29 February 2016; and we saw that at pages 83-123 with various attachments.[28]As a consequence of the investigation Mrs Webster thought the following allegations were made out against the claimant: 1. During December 2015 slept whilst on wakeful duty. 2. On 29 January 2016 slept whilst on wakeful duty. 3. On 30 January 2016 was insubordinate to her line manager Ms Manafikhi. 4. On 30 January 2016 was insubordinate to her line manager Ms Mangwiro. 5. On 29 January 2016 failed to follow correct Moving and Handling procedures in respect of resident JA. 6. On 29 January 2016 failed to follow correct Moving and Handling procedures in respect of resident GM (see page 83).[29]This report was sent to Mrs Thompson by Mrs Webster and she copied it to HR. Mrs Thompson works as a Home Manager for the respondent and has been employed by it for 15 years. She has been the Home Manager at Abbey Park for 4 years. As the Home Manager, she is responsible for the support and management of the Home and its compliance with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which as we noted before, make the respondent and the Home Manager responsible to ensure that the services that they operate are always safe, that any complaints are properly investigated, and the service users protected from any further risk complained of. Case Number 1302027/2016 14[30]Mrs Thompson wrote to the claimant on 29 February 2016 inviting her to a disciplinary hearing for the six matters identified (124-125). The relevant documents were sent to the claimant in this letter; and the meeting took place between them on 11 March 2016 starting at 9.30am. The claimant was accompanied by Miss Akogo. It ended at 11.10am. There was a note taker present. Mrs Webster presented the case. We were able to see the minutes of the meeting (129-144).[31]There were no questions from Mrs Thompson or the claimant for Mrs Webster. The claimant answered questions put to her and was able to put her own case; including, for example, the allegation that the photographs were fabricated. During the hearing Mrs Thompson asked the claimant about her allegations of discrimination; and sought confirmation of her understanding that these were withdrawn. The claimant confirmed that this was the case; and again, said that she made the allegations as: “I wanted attention and to be heard; there is nothing in particular that I have seen” (140).[32]After the meeting Mrs Thompson carried out a thorough analysis of the facts and on 22 March 2016 wrote to the claimant (145-150) with the outcome of the disciplinary process; setting out her full reasons why the claimant was summarily dismissed. We refer to the outcomes briefly:a. Sleeping in December 2015 on wakeful duty, this was found proven.b. Sleeping on 29 December 2016 on wakeful duty, again proven.c. Insubordination to Ms Manafikhi, not proven.d. Insubordinate to Ms Mangwiro, not proven.e. Failure to follow the correct Moving and Handling procedures over JA – proven.f. The same allegation over GM – proven.[33]The analysis given to the claimant was comprehensive, well-structured and clear. Its conclusions were entirely reasonable on the information available. The claimant was informed of her right of appeal and she exercised it. The claimant was sent the notes of the disciplinary meeting after the decision was sent out to her. This was an administrative error as Mrs Thompson had wanted them to go out at the same time as the decision. The timing of sending them out has no particular formula in practice. The claimant and her representative took no notes at any stage of the proceedings.[34]Miss Saleh, who is Black African/Dutch, was appointed as the appeal officer. She works as an Area Support Manager for the respondent; and she has been employed since 26 February 2010. As part of her role she has an overall responsibility for overseeing the management of five homes run by the respondent, including Abbey Park. She does not directly line manage either Mrs Thompson or Mrs Webster. They are line managed by her line manager Ms Helen Nairn, who is an Area Manager. We found that Miss Saleh brought an independent and impartial mind to the appeal proceedings. She is a qualified nurse; has been working in the Social Care sector since 2007, and Case Number 1302027/2016 15 therefore understands extremely well the sector, and the standard that is expected of staff employed by the respondent.[35]The claimant appealed by an email dated 25 March 2016 (151) which stated as follows: “Dear Ms Nairn, I am responding to a letter dated 22nd March from Tina Thompson Home Manger at Abbey Park. Firstly I have take legal advice in this matter and it appears there is sufficient grounds to lodge an Appeal on Racial Discrimination. Secondly there appears to be some legality of unsolicited photographic evidence being used and as the person that took the photograph was not stated in any of the evidence. I am also aware that some of my other colleagues have had their photographs taken whilst on Duty under similar circumstances however they were not subject to a “Gross Misconduct Hearing”. Up until this point as stated in the letter I have a good work record and not had any previous issues. However I suspect that my period of sickness whilst undergoing an investigation persuaded Tina Thompson to dismiss me. I am mindful of the fact that Abbey Park Care Home comes under the CQC and in view of the way I have been treated I also reserve the right to inform them of my concerns. Presently I am abroad currently abroad dealing with a family trauma and therefore request a further 28 days to make a more detailed statement.”[36]Mr Horgan of HR replied on 31 March 2016 (152) giving the claimant until 29 April 2016 to give her full grounds of appeal. The details were not given by the claimant until 14 May 2016 (160-166). Obviously, this was out of time by some two weeks. Ironically, the claimant accused the respondent of delay amounting to discrimination when in fact the delay was down to the claimant to a large extent. The respondent reasonably allowed the claimant to continue in spite of the out of time point; and that was a sensible, reasonable and fair decision to make.[37]On 15 June 2016, the appeal hearing took place. The claimant was accompanied at the appeal by Miss Akogo. In attendance at the meeting was Mr Horgan, as a note taker and to give HR support to Miss Saleh. The minutes of the appeal meeting were at 190-202. The claimant had every opportunity to state her case at the appeal. The meeting started at 11am but we could not see the time for it ending. We assume that it lasted a couple of hours given the length of the notes. The claimant gave a detailed account of Case Number 1302027/2016 16 her actions to Miss Saleh. The meeting covered all the issues raised by the claimant. Miss Saleh adjourned the meeting to consider the evidence and she decided then to gather further information and clarification. This was an entirely reasonable thing to do. This task included interviewing the “Turn Charts” for the two residents. She interviewed Julie Rogers, who was the note taker for the investigation and the disciplinary processes; and questioned her about the notes and what happened in the meetings.[38]Miss Saleh met with Victoria Okunriboye, a Care Assistant (Black African British) who had been interviewed as part of the investigation process; and who the claimant said would be able to confirm that Ms Elena Manafikhi was racist towards the claimant following the argument on 29 January. The minutes of this meeting are at 209-212. Miss Okunriboye signed these minutes to confirm they were an accurate account of the conversation; and they indicated the following:a. Miss Okunriboye confirmed that she had no issues about Elena and the way she spoke to people (209).b. When Miss Saleh asked her if anything racist had been said to the claimant during the conversation with Elena on 30 January she replied by saying “I don’t think so” (210).c. Miss Okunriboye confirmed that she had not seen the claimant asleep on duty. She clarified however that the claimant was sitting on the sofa facing the TV. As she was in the dining area and the claimant was not facing her, she could not see if the claimant was sleeping or not.d. In relation to moving residents, she confirmed that when checks and turns were completed the turn chart was usually initialled by one person with both persons’ initials. She confirmed that the turn charts from 29 January had been signed by the claimant putting down her own and Miss Okunriboye’s initials. This point confirmed the claimant’s admission that she turned the residents on her own.[39]Miss Saleh interviewed Mrs Thompson; and then Ms Manafikhi. The latter denied calling the claimant a “Black woman”. She confirmed that she had reported that the claimant had been sleeping on duty and explained to Miss Saleh that when she saw the claimant sleeping she had to call her name twice before she woke up (222). She also interviewed Mrs Webster. She took minutes of all the meetings and these were signed by the witnesses.[40]Having considered the matter further, the appeal was rejected. Miss Saleh wrote to the claimant on 8 July 2016 with the outcome (237-249). We find that Miss Saleh carried out what we would describe as a forensic analysis of every point, explaining her reasoning for rejection of the points at issue in the appeal. Her approach was plain to follow. Not only did she reject the appeal against the dismissal; she also found the claimant’s allegations of race discrimination unfounded.[41]These are the essential basic facts and chronology of events at this stage. Case Number 1302027/2016 17[42]The submissions. Mr Crow went first. He spoke to his written submissions and there is no need for us to repeat everything here that is set out in them. Unfortunately, it became apparent that he had not seen the ex parte order of Judge Camp made on 10 November 2016, concerning the claimant’s application to amend the claim and the outcome of it; and it was not in the bundle. Both representatives agreed that there was a discrete harassment claim against Ms Manafikhi; it was an alternative pleading to an allegation of direct discrimination over the same incident which was said by the claimant and Dr Ibakakombo to have occurred on 1 February 2016. There was a time point arising out of this issue; and the parties recognised that the claimant would have to be called back to give further evidence on the subject, as it was not dealt with when she gave her evidence to us. Mr Crow then went on to spend some time rebutting Dr Ibakakombo’s submissions and correcting factual inaccuracies in them. He pointed out that the claimant was attempting to bring in a freestanding Working Time Regulations claim over the issue of breaks; but this was not pleaded. Mr Crow explained that the credibility of the witnesses was fundamental in this case and that the claimant had “flung around” serious allegations doing genuine claims of discrimination a great disservice; and in doing so, this conduct devalued legitimate claims. The whole claim was misconceived.[43]We then heard from Dr Ibakakombo with his oral submissions, when he took us through his written submissions, and again there is no need to recite everything that was put in writing here. Although the issue of the claimant being Belgian had not particularly featured much in the evidence, Dr Ibakakombo confirmed that it was not withdrawn and was still part of the claim. Mr Crow accepted that it fell into the definition of race; but pointed out that it was not an issue identified by Judge Camp. It is in the matters referred to in the claim form.[44]Dr Ibakakombo emphasised that we should draw inferences in the claimant’s favour; that we should have regard to all the evidence put before us. We discussed the comparator, as Dr Ibakakombo’s definition was inadequate. Dr Ibakakombo agreed to adopt that set out by Mr Crow in his submissions; and we recite it and adopt it. It is this: “The comparator must be someone whose relevant circumstances are the same or not materially different from the claimant’s (see Shamoon, s.23(1) EqA). This must include at least a White and/or British employee who has: 1. Been photographed seemingly sleeping in the workplace; 2. Had a further allegation of sleeping during a waking night duty (on a separate occasion) levelled against them by the Registered Nurse on duty; 3. Had failed to attend (or send a co-worker) to another unit within the home to act as cover, despite a request from the Registered Nurse (Sihle) and/or a Senior Care Assistant (Jane Palmer); Case Number 1302027/2016 18 4. Had alleged that her own Registered Nurse (Ms Manafikhi) does not help or assist; 5. Had shouted at her seniors in relation to the aforementioned ‘cover’ issue; and further 6. Admitted, pre-suspension the original sleeping allegation, and further admitted to moving/handling two residents without assistance, contrary to their care plans.”[45]We point out that Dr Ibakakombo’s written submissions were not always helpful. There was an element of cutting and pasting; but unfortunately this caused almost two pages of information to be included in relation to two other tribunal cases (pages 8 and 9 of the submissions); and where the number of documents referred to were in a far larger bundle. These matters appear to relate to cases 1300517/2015 and 1303059/2015.[46]As agreed, we then called the claimant back to give further evidence to us on the time point. This was followed by further submissions from both sides on this issue. Mr Crow went first. He submitted that the first reference to harassment by the claimant was made on 6 October 2016; and it was not in the claim form. Although a new “label” was allowed by Judge Camp on 10 November 2016, it was still out of time and this preliminary point had to be determined. It was a discrete matter. The pleaded case is that the events complained of took place on 1 February 2016. The documents show that neither party was in work (75(a) and (b)). This was not a continuing act; it was a one-off event. It was not just and equitable to extend the time; because of the claimant’s conduct and that of her representative, in misleading the tribunal during the explanation for the delay. The claimant had denied on oath that Dr Ibakakombo was involved and yet he contradicted her evidence in his submissions. Pursuant to Bexley principles, the claimant had not demonstrated that she should be allowed to continue with the claim out of time. She was simply dishonest; she was not mistaken. Mr Crow drew our attention to page 151, where the claimant had said that she had had legal advice by 25 March 2016, long before the three-month time limit expired. The claimant chose not to make inquiries herself by going onto the internet, going to a library or seeking advice from the CAB, and although she had attended there she did not get advice, she left without it. If the claimant was ignorant of the law, then this was no justification for the delay; and the application should be refused. The claimant would not be helped by considerations arising out of s.33 of the Limitation Act 1980.[47]We then heard from Dr Ibakakombo with his submissions. He submitted the claimant had had no advice, she was off work sick and this could have had an impact on her ability to take action at that time. He stated he saw the claimant for the first time on 10 May 2016; and had helped draft the appeal for her. This submission was entirely opposite to the claimant’s oral evidence on oath. He submitted the claimant was unsure of the time limit. Ms Manafikhi acted in breach of the respondent’s policies, as did Mrs Thompson, Mrs Webster and Mr Horgan; and therefore, the claim should be allowed to proceed. All events were linked to one another; connected in time, and Case Number 1302027/2016 19 therefore we did not have to go on to consider just and equitable reasons to extend the time.[48]Mr Crow then spoke briefly in rebuttal to say that the claimant was fit enough to go to the CAB; attend meetings in February with the respondent, and go through the investigatory and disciplinary procedures. There was nothing to stop the claimant seeking advice from ACAS and issuing the proceedings sooner.[49]Our conclusions and reasons. We apply the law to the facts. We start by dealing with the allegations against Ms Manafikhi on 1 February 2016, namely harassment and the alternative of direct discrimination. We particularly had regard to the case of Hendricks cited by Dr Ibakakombo to us. We find and conclude that this event is not part of an act extending over a period of time; it an isolated, specific act, by one person, who does not feature in the other allegations. Therefore, on the face of it, the claim is out of time as the last date for any act to be in time was 20 February 2016. Thus, we must consider our discretion, which is a very wide one; but which should be judicially exercised. Do we let it in on just and equitable grounds? The claimant waited until 22 July 2016 to issue the proceedings. We examined the reason for the delay. The claimant asserted various things caused it, including ignorance of the law and reliance upon a “friend” to issue the proceedings for her. The claimant’s evidence here was baffling for us to follow. We find that the claimant had obtained legal advice, at the latest by 25 March 2016 (151), and probably knew of the three-month time limit at that point. It is highly unlikely that anyone giving advice in this area of the law will fail to state the short time limit for bringing proceedings. It was her inaction, without any reasonable or acceptable explanation, which caused the delay. She undertook no personal research into the law and time limits. The claimant denied seeing Dr Ibakakombo in May 2016. The cogency of the evidence is likely to be affected because of the claimant’s lack of certainty over events. This included a denial that Dr Ibakakombo had helped her in lodging her claim form, notwithstanding the fact of his name and signature appearing on it (26). The respondent had cooperated throughout, including encouraging the claimant to withdraw her resignation, which she did. The claimant did not act promptly on or after 1 February 2016. On her own account of things, she knew all the relevant alleged facts, and she took advice, as she confirmed in writing; but did nothing. At the time, the claimant was capable of action. She was involved in the investigation, and disciplinary processes, including attending at lengthy meetings. The claimant took steps to take advice; but did nothing until 22 July when issuing the proceedings. When she issued the proceedings, she had been in touch with ACAS on 19 May 2016. This was already after the limitation period for this event had expired. Thus, when approaching ACAS and then presenting the claim form this part of the claim was out of time.[50]Under Bexley principles the claimant has failed to convince us that it is just and equitable to extend the time. Therefore, the tribunal does not extend the time. Accordingly, we have no jurisdiction to hear the claim of direct Case Number 1302027/2016 20 discrimination and the alternative claim of harassment alleged against Ms Manafikhi on 1 February 2016, and both claims are dismissed.[51]We go on to say this, having heard all the evidence in any event, that if we were wrong about the time issue we would have found and concluded that the claimant would have failed to establish such facts to reverse the burden of proof at the first stage of Igen. The claimant and Ms Manafikhi were not rostered to work on 1 February 2016 (we have already referred to 75(a) and (b)). The claimant alleged fraud and forgery about these documents; with no supporting evidence whatsoever. The claim would have failed here. The claimant attended work informally to lodge a complaint that day; but she did not meet Ms Manafikhi who was not present and not due to be present on the rota. The claimant had the opportunity on several occasions to change the date of this event; but she did not do that.[52]There was an issue, arising out of the background fact of the photograph, and we now turn to that before the rest of the issues which we must make a judgment upon. The respondent has no CCTV. It relies upon employees and others to draw to its attention any act or omission which may have an adverse effect on the wellbeing and safeguarding of its residents. There is a camera on site specifically for resident care, for use as appropriate. There is no need for us to go into the detail of that because it is obvious. There was insufficient evidence before us to show specifically that it was either a camera or a mobile telephone which was used for the taking of the photograph. It was produced to the respondent on a plain photocopy sheet of paper. We conclude that this was taken anonymously by someone who was, in effect, whistleblowing; and having the interests of the residents and the respondent at heart; knowing of its monitoring by the CQC and the requirement to investigate. The claimant’s objection to being photographed was entirely misplaced; especially as she agreed she was sleeping; this being against the respondent’s policy; and not in the best interests of the residents or the respondent and its reputation.[53]We now turn to the allegations of direct race discrimination. Firstly, those by Mrs Webster; and the suspension. These were serious, potentially gross misconduct issues, raised against the claimant; and we saw the respondent’s Code of Conduct (284-286). The claimant was suspended. This would amount to a detriment to the claimant. Was there less favourable treatment than the comparator? We conclude that no, there was not. Mrs Webster would have acted in the same way with the comparator. This treatment was entirely justified. The claimant failed to establish any less favourable treatment; therefore, the claimant fails at the first stage test in Igen and this part of the claim is dismissed. We go on to say that if we were wrong at that point and the burden of proof had reversed, the respondent would have established that in no sense whatsoever was the suspension tainted by race discrimination, whether by skin colour or nationality.[54]The second issue against Mrs Webster was her failure to investigate Ms Manafikhi’s conduct on 1 February 2016. This allegation simply does not get off the ground. The claimant failed to establish such facts that there was an Case Number 1302027/2016 21 argument on that day; and we have explained our reasoning for that already. This claim fails at the first stage of Igen and is dismissed. We raised the problem with the date of this issue with the claimant and Dr Ibakakombo; and even in his submissions he maintained orally and in writing (at paragraph 5 of C3) the correct date was on 1 February.[55]Mrs Webster initiating disciplinary proceedings is the third direct discrimination claim against her. We conclude that the facts show Mrs Webster acted in accordance with the respondent’s policy; and acted fairly having regard to the evidence she had accumulated in her investigation. These included admissions by the claimant. The disciplinary process was a detriment. However, we conclude that the comparator would have been treated in the same way. This allegation therefore fails at stage 1 of Igen and is dismissed. We go on to say if we were wrong at this point; and the burden of proof had reversed, we would have found the respondent had satisfied the burden of proof on it, and demonstrated that this act was not tainted by discrimination.[56]The fourth item against Mrs Webster arises out of four things which she found in her investigation report and are described as “accusations” by Dr Ibakakombo in his list of issues. These were: the insubordination on two occasions and the breach of Manual Handling and Moving procedures on two occasions. It is a fact that these are four of the six potential matters for discipline at the end of the investigation. This could amount to a detriment. Would the comparator have been treated more favourably? The answer to that is no. Mrs Webster conducted a thorough, fair, balanced and entirely proportionate investigation. Her conclusions and adopting for clarity Dr Ibakakombo’s word “accusations” were entirely justified on the evidence before her. The comparator would have been treated in entirely the same way. Therefore, the claimant has failed to establish such facts to reverse the burden of proof and once again this part of the claim fails at the first stage in Igen and is dismissed. Following the process we adopted earlier; we did go on to consider what would we have done if the burden had reversed. We are satisfied that the respondent would have established the conduct complained of was in no sense whatsoever tainted by race discrimination. We would say at this stage that the claimant’s comparators at page 66 and 67 were entirely inappropriate; and Dr Ibakakombo adopted that proposed by Mr Crow in any event.[57]Then, moving to Mrs Thompson, and the allegations against her in relation to direct discrimination. Firstly, the disciplinary meeting. There were a number of issues over this; and the first we look at is the presence of Mrs Webster. We find that this was policy, for as the investigator Mrs Webster was required to attend; and it is good practice indeed to do so. The inappropriateness of the questioning was another issue. There was no objection to the claimant being accompanied, although the claimant said that this was an issue. There was some delay; but this was entirely understandable, which came about over a change of room, where there was more space and there could be less formality. There was a complaint of shouting by Mrs Thompson; and interrupting and speaking over the claimant. Case Number 1302027/2016 22 We have looked at all of these matters and we do not find that the claimant has established such facts, on the balance of probabilities, to reverse the burden of proof. We preferred the evidence of the respondent’s witnesses on these matters for reasons which we will explain later. Thus, the claimant has failed to establish a detriment. This was another complaint about a meeting which was very well documented; and which was undertaken in a fair and proportionate way. Thus, this part of the claim fails at the first stage of Igen and is dismissed. Again, if we were wrong and there was a detriment, we find that the comparator would have been treated in the same way. The claimant would not have established less favourable treatment; and the claim would have been dismissed here. If we were wrong about that, and the burden switched, we would have been satisfied by the respondent that it had discharged the burden of proof on it; and shown these matters were not tainted by race.[58]There was a further direct discrimination claim against Mrs Thompson over the decision to dismiss. The detriment of dismissal is established. However, there is no less favourable treatment than the comparator, who would also have been dismissed on the same facts. Therefore, the claim fails at the first stage of Igen and it is dismissed. If we were wrong and the burden shifted to the respondent, it would have established and shown that there was no taint in the decision caused by the claimant’s race. There was overwhelming evidence of gross misconduct by the claimant who let down the residents and the respondent by her conduct.[59]Mrs Thompson’s alleged failure to provide notes of the disciplinary meeting was the subject of a claim for direct race discrimination. On the facts, we find there was no detriment. “As soon as possible” had been the agreement between the claimant and Mrs Thompson. By an administrative error the notes had gone later, rather than with the decision. This was entirely explained; and it had nothing to do with race. It would have been odd, as the claimant said was agreed, to have received the notes of the meeting before the decision was made and sent to her. The claim fails here. If it was a detriment, the comparator would have been treated in the same way. The claim fails at the first stage in Igen. If the burden had reversed the respondent would have shown that the timing of sending the notes was not tainted by race discrimination.[60]We then turn to the claim for direct discrimination against Miss Saleh. This was by reference to not allowing the appeal to succeed. We examined the process very carefully. It was conducted in a manner which was just, fair and proportionate in its entirely. Again, it was thorough and well documented. The decision was made objectively, based entirely on the overwhelming evidence, including the claimant’s admissions. We accept the detriment relied upon by the claimant lies in the rejection of the appeal. However, we find the claimant failed to establish less favourable treatment with the comparator. We are satisfied that Miss Saleh would have treated the comparator in exactly the same way. Therefore, this part of the claim fails at the first stage in Igen and is dismissed. Once again, if we were wrong at that point, and the burden of Case Number 1302027/2016 23 proof shifted to the respondent, it demonstrated on the balance of probabilities that in no sense whatsoever was the decision tainted by race discrimination.[61]We then turn to Mr Horgan and the allegations of direct race discrimination against him by the removal of questions, answers and concerns from the meeting notes he took. This concerned the appeal notes. We find and conclude that the claimant has failed to establish a detriment. The notes were taken by Mr Horgan and as he quite rightly stated they were not verbatim, he never said that they were. They were accurate in that they conveyed most of what was said. They captured the key points. He accepted that he misattributed some of the lines within them; but there was no detriment, given their purpose. It was not done deliberately. Mr Horgan readily conceded his mistake. The claim fails here at the first stage of Igen as the claimant has not established such facts to reverse the burden of proof. However, if we were wrong would we have found less favourable treatment? No, we would not. The comparator would have been treated in exactly the same way. Again, the first stage in Igen would not have been met. We have dealt with all of the claims against Mr Horgan in a compendious way. All of the direct discrimination claims have failed and been dismissed.[62]We then turn to the claims for victimisation; and firstly, look at the claims against Mrs Webster. The protected acts asserted by the claimant are these. Firstly, on 1 February 2016 the claimant complained orally of being shouted at by Ms Manafikhi to Mrs Webster. However, our analysis here is that there is no protected act within the definition in section 27. Later that day there was another meeting (notes of which were put into writing at pages 87-94, signed and dated by the claimant on the same date). There is nothing in these about race and nothing which would comply with section 27. Then we move on to another date, 4 February 2016 (page 78), the claimant’s resignation letter. We find this includes a complaint of victimisation because of the colour of skin, racism, targeting Black people and victimisation by race. Whilst we find the first two things are not a protected act, this is, at section 28(2)(c) and (d). However, was it made in bad faith? We agree with the respondent’s assertion about this, and we examined it very carefully. We find and conclude that it was made in bad faith. The claimant had the opportunity twice on 1 February 2016 to tell Mrs Webster that this was a complaint about race; but did not do so. It was only after she was suspended on 1 February 2016 by Mrs Webster that the claimant made this allegation. We saw here that there was a pattern of behaviour by the claimant. We compared this with how she attended at work on 1 February 2016 in the morning to lodge a complaint against Ms Manafikhi first; but she had been beaten to the post by Ms Manafikhi who had complained directly to Mrs Webster on 30 January 2016. There are other reasons for our conclusion, which we will come back to later when we discuss credibility. Therefore, we find and conclude that the detriments all fall away against Mrs Webster and all the claims for victimisation against her are dismissed. We noted, however, that in any event the act of suspension as an act of victimisation pre-dates the second alleged protected act and this would have failed anyway. Therefore, all the claims of victimisation against Mrs Webster fail at the first stage of the test in Igen. There were no protected acts and all those claims are dismissed. Case Number 1302027/2016 24[63]We then move to the protected acts in relation to the allegation that Mrs Thompson victimised the claimant. Firstly, the claimant relies upon the resignation letter of 4 February 2016; but we have already made our findings here. It was not a protected act, because it was made in bad faith and that part of the claim fails and is dismissed. The second part is in an assertion of the renewal of the race complaints made during the disciplinary meeting. We noted that this item no longer appeared as an issue in the claimant’s document C2, which is the claimant’s list of issues. This seems sensible because it does not fall within the definition in section 27. If that was a mistake by Dr Ibakakombo and it remained an issue, we would not have found it to be a protected act. Item 3 as a protected act is the claimant’s complaints in the 11 March 2016 meeting; and we saw this exchange recorded at page 140:- TT – “I also just want to clarify. You said that black people are the target of a scam; then when asked about this you said you didn’t mean anything by it. Do you stand by that? EH - “Yes. I used that to be heard. I wanted attention and to be heard; there is nothing in particular that I have seen.”[64]We find and conclude that the requirements of section 27 are not established, this is not a protected act. Thus, since there are no protected acts the three complaints of detrimental action against Mrs Thompson also fall away. The claims against Mrs Thompson all fail at the first stage test in Igen and they are dismissed; because there are no such facts to reverse the burden of proof. We find and conclude that the disciplinary process overall was just, fair and proportionate. The notes were provided. Had the claimant sustained 2 years’ continuous service, and this had been an unfair dismissal claim we would have found that the dismissal had been fair and dismissed a claim for unfair dismissal. We do not have to make a judgment; but we make it a finding as a background fact.[65]We then turn to the victimisation claim against Miss Saleh and deal with the protected acts. Firstly, the resignation letter at page 78. Once again, we have already found that this was made in bad faith and falls away. The second protected act is the appeal letter of 14 May 2016. The contents of this are sufficient to comply with section 27(2) probably (c) and (d). However, we conclude that this also was made in bad faith for reasons we will expand on later. The third item is the assertion about things said in the 15 June 2016 appeal meeting; and we saw the notes at pages 190-202. Here, the claimant complains about racist matters. She describes some on page 193 as a “misunderstanding”. There are other comments on page 194 and 195; they do satisfy Section 27(2), probably both (c) and (d). However, we are satisfied that these complaints were made in bad faith; and again we will expand on the reasons later when analysing credibility. Therefore, we find and conclude that there are no protected acts and there can be no detriment or act of victimisation in rejecting the appeal. This claim fails at the first stage test of Igen and is dismissed. If we had found no bad faith on the claimant’s part, we Case Number 1302027/2016 25 go on to state the rejection of the appeal was not “because” of the protected act. There was overwhelming evidence of the claimant’s gross misconduct which led to the finding by Miss Saleh that the appeal should be dismissed.[66]We then turn to Mr Horgan. He faced the same three alleged protected acts as Miss Saleh. They were not protected acts for the reasons we have already explained. Therefore, the claims fail here at the first stage test of Igen. If there were protected acts as described, we would have reject the claims for victimisation (4.2 (a) and (b) in the claimant’s list in the claim form), for the same reasoning we rejected the same matters as items of direct discrimination against Mr Horgan.[67]Finally, the claimant relied upon what we would call a “global” list of essentially 4 detriments: the suspension, dismissal, the handling of the investigation and disciplinary processes and rejection of the appeal. These claims all fail because the claimant did not carry out any protected act which was made in good faith. The suspension, dismissal, the process and the appeal were all just, fair and proportionate. As we have said before, had the claimant had 2 years’ service we have no doubt that this would have been a fair dismissal under section 98 of the Employment Rights Act 1996. Furthermore, if there had been any procedural failure we would have reduced any compensation by 100% under Polkey principles. Furthermore, by the claimant’s own conduct she would have had a 100% reduction in any compensation over the fact that she caused or contributed to her own dismissal by the matters that she admitted to doing, that is sleeping on duty and being in breach of the Moving and Handling policies. When we ask ourselves the “why” question, we conclude the claimant was treated as she was because she had acted in ways which the respondent reasonably and fairly believed amounted to gross misconduct.[68]In coming to our decisions, we had regard to how the witnesses presented to us. We deal with the respondent’s witnesses first. We say this about them individually and collectively. They were all entirely open, honest, transparent and credible. However, we know that credibility is not the end of the matter because credible witnesses can be mistaken. We considered that point very carefully; but we concluded that they were not mistaken. This is because so much of what they said was supported by the contemporaneous documents. The data trail and procedures adopted were exemplary; as was the conduct of the respondent’s witnesses throughout. They remained professional and balanced in spite of the claimant’s provocative conduct. Mrs Webster and Mrs Thompson were visibly moved by this hearing and were turned to tears in the face of very serious, but unfounded, allegations made against them. The other two witnesses were more geographically removed from the events and were not affected to the same extent. These were serious allegations raised by the claimant, they brought reputational harm to the witnesses which was entirely unjustified. We noted, for example Mrs Thompson and Mr Horgan could see another view of things. Mrs Thompson did not find all the allegations proved; and Mr Horgan admitted errors in his note compilation. This reflected the open mindedness of the respondent’s witnesses. Case Number 1302027/2016 26[69]We then turn to Miss Akogo. She was not independent and impartial; she had an axe to grind in these proceedings in that she has a grudge against the respondent; as says that she is going to bring proceedings against it. She was entirely disgruntled in her evidence. She was needlessly aggressive and argumentative; frequently went off at a tangent; waffled in the face of simple questions, and failed to answer direct questions. She focused on irrelevant matters; made a wide sweeping allegation of institutional racism against the respondent without a shred of evidence to support it. We found that she was not open and honest, she was not a witness of truth and she was simply not credible at all. She did nothing to help us to understand the case.[70]Finally, we turn to the claimant. She presented to us as someone who was stubborn, fixed in her views, entirely blinkered and unable to see another view of things. She was not open, not honest, not credible and was not a witness of truth; very far from it. She lied to us frequently and without hesitation whilst she was under oath. She had no thought of the consequences of her lying. She behaved in the same way throughout the process at the respondent, as she did here. For example, over Dr Ibakakombo’s involvement in the case. She also made several potentially racist comments about White people. For example, saying “Elena is the colour of British, she has a White face and treats herself as British”. In an exchange in the hearing, she was asked: “Do you say that Black British are treated in a different way to Black non-British at the organisation?” She replied: “Black British do what they [the respondent] want them to do. You are treated ok. Non-British you don’t have a voice. If you are Black non-British in the company you are subject to racism”. In relation to the appeal outcome letter, it was pointed out in questioning that it was full of reasoning why the dismissal was upheld; and it was pointed out that Miss Saleh was Black African non-British. In response, the claimant said: “Miss Saleh is Black British and she worked for the company. She is under the influence of the company. She did not write it with her own mind.” The claimant made stereotypical assumptions about the ethnicity of Miss Saleh and the way she behaved. The claimant proved to be a completely unreliable witness. Her evidence was constantly changing, notably in relation to the issue of sleeping on duty; with both admissions and denials.[71]We agree with Mr Crow’s submission that the claimant does genuine claimants a great disservice and she devalues the purpose of the EqA. This is an experienced tribunal, used to dealing with complex discrimination claims. In our collective experience this has been one of the worst cases where a party has fabricated a story for vindictive reasons to get at people who have carried out their jobs honestly and reasonably. They made decisions arising out of the claimant’s own gross misconduct. The claimant was evasive, inconsistent and deceitful in her evidence. The claimant was not helped by Dr Ibakakombo, whose presentation of the claim left much to be desired. Some of the points he raised were patently and positively unhelpful. He introduced at paragraph 6.1 of his submissions an invitation for the tribunal to draw an inference from the statistics of the higher dismissal and/or resignation rate of Black employees compared with their White colleagues. He provided the Case Number 1302027/2016 27 names of four Black employees; but did not give any information about White colleagues. There were no statistics put in evidence for us to draw inferences from. Thus, when we stood back and looked at the way in which the witnesses presented to us and the way in which the case was presented, we concluded that wherever there was conflict on a material fact we preferred the evidence of the respondent’s witnesses. This was important in how we came to our conclusion that the claimant acted in bad faith in her alleged protected acts for the claims of victimisation.[72]After we had given our oral reasons and judgement Dr Ibakakombo made an application for written reasons to be supplied; and we said these would be provided as soon as conveniently possible. The respondent then made an application for costs against the claimant. However, by this time it was after 5pm on the final day of the hearing, and we ran out of time to deal with the application. Accordingly, we gave some directions to deal with that application and agreed to fix the date for the hearing of it later. Signed by _____________________ on 22 March 2017 Employment Judge Dimbylow Reasons sent to Parties on 24 March 2017 ______________________ BETWEEN Claimant Respondent Miss E Hinneh AND Methodist Homes[1]The claims for direct race discrimination and harassment contrary to the Equality Act 2010 (“EqA”) which were alleged to have taken place on 1 February 2016 were presented out of time. They did not form part of a continuing act to render them in time. It was not just and equitable to extend the time. Therefore, the tribunal has no jurisdiction to hear these claims and they are dismissed.[2]The claims for direct race discrimination and victimisation contrary to the EqA which were in time were not well-founded, fail and are dismissed. Signed by _______________________ on 6 March 2017 Employment Judge Dimbylow Case Number 1302027/2016 2 Note: Reasons for the judgement were given orally at the hearing. Written reasons will be provided as soon as conveniently possible as a request was made by the claimant for them. Judgment and order sent to Parties on 7 March 2017