Mrs S Vales and Others v Serco Ltd: 1400580/2024 and Others
REASONS
[2]The parties having consented to Judicial Assessment, we have undertaken a preliminary consideration of the Claimants’ claims for unfair dismissal, wrongful dismissal and direct race discrimination.[3]References in square brackets (e.g. [25]) are references to paragraph numbers from the Bundle. References to witness statements are indicated “XX-pY” where ‘XX’ are the witness’s initials and ‘pY’ indicates the paragraph number.[4]Our conclusions are based on the witness statements and the documents presented to us. We have not heard evidence from any of the witnesses. We have made our decision on the basis of what we believe the statements and the documents show on the balance of probabilities (that means that we believe ‘that it is more likely than not’ to have occurred.)[5]We first consider the factual background before we address each of the claims.The factual background
[6]The Respondent is a company which provides cleaning and maintenance services to the Great Western Hospital in Swindon (‘The Hospital’). The Claimants were each employed as cleaners by the Respondent and worked at Hospital. The Water Monitoring System[7]The Hospital’s water systems are regularly tested for Legionella bacteria. The bacteria thrive in bodies of water which are not moving and which are at a certain temperature. The water systems of the Hospital and other domestic buildings are a perfect environment for the bacteria to grow. If the bacteria are present in the water systems, they can be passed by water born droplets to patients when taps are run. If a patient contracts Legionella it can cause them serious illness and even death. As a result, the Hospital regularly tested its water for Legionella and other bacteria.[8]Part of the domestic cleaners’ duties was to ‘flush’ the water system regularly, by turning the taps and showers on and allowing them to run for two minutes. This prevented the build up of Legionella and other bacteria in the system. Once the ‘flush’ had been done, the cleaner was required to sign a sheet to record that they had done so. The importance of that task was explained by the Respondent to the cleaners during training sessions called ‘Tool Box Talks.’ The Respondent kept records of the Tool Box talks, which showed the Claimants had attended. It was also repeated at the top of the record produced by the cleaners of the flushes they had conduct on their shifts, where are called ‘Legionella Prevention Records.’ At the top of that document the following was written, “This is a record sheet for the evidence of completion of Legionella Flushing on all low use outlets within the noted area. Each tap should be fully opened for at least one minute twice a week”[9]The Respondent uses the record to find areas of its water systems which need Legionella testing; those are areas where flushing does not occur as much as in other areas.[10]In 2023 the Hospital’s tests of its water systems showed an increasing amount of Legionella. Mr Ian Marsh, the Respondent’s Mechanical & Water Supervisor, was responsible for the Respondent’s system of monitoring its water. As a result of the increasing number of positive Legionella test results, he bought and installed two water temperature monitors (‘The Monitors’).[11]The Monitors were attached to water pipes that carried water to taps and showers and they showed the temperature of the water that passed by the monitors. Mr Marsh used the Monitors to help him find areas of the Respondent’s water systems where Legionella and other bacteria might be; that is because that bacteria grow quickly in water temperatures of between 20 and 45 degrees. The Monitors also showed when a tap or shower had been turned on because when a hot tap was turned on the water temperature in the pipes close to the tap or shower increased, when the cold tap was turned on the temperature would drop. The Respondent’s computer systems were able to record the day on which the flush happened, when it happened and how long the tap was run for.[12]Mr Marsh did not realise that the Monitors would be able to show or record information about flushes when he bought them and put them in place. He bought them, as we have said, to find areas where the water temperature was between 20 and 45 degrees. Mr Marsh first realised that the Monitors could record flushing information when he looked at the Respondent’s computer records from the Monitors in September 2023.[13]Mr Marsh put the Monitors in areas of the Hospital which he knew did not use the water system very much (and which were therefore more likely to have Legionella in them). In early September 2023 he placed Monitors in the Intensive Care Unit in room 1.16.2004 (‘ICU’) and in another room in the Betjeman Ward (‘the Ward.’)[14]Each of the Claimants was responsible for flushing the taps or showers in one or both of the ICU and the Ward in September and October 2023. The disciplinary investigation[15]At the end of September 2023 Mr Marsh looked at the computer records for the Monitors and saw that there were no changes in the water temperature which suggested that the taps and showers in the ICU and the Ward had not been flushed. The Respondent produced those records for the Tribunal ([204-206]).[16]He believed that the Monitors were not working, and so on 28 September 2023 he tested them by flushing the taps and showers himself, but he saw that those flushes were shown on the computer records. Again, the Respondent provided copies of the records which showed the flushes that Mr Marsh made ([205, 206, 254-256, 309-311]).[17]Mr Marsh then believed that the cleaners could not have flushed the water system in either the ICU or the Ward as they were meant to have done, and so on 2 October 2023 reported that concern to Mrs Liliana Lopes, the Soft Services Manager, who managed the cleaners and the Claimants. That was the first day that Mrs Lopes knew that the Respondent was using Monitors on its water system. She had no knowledge of their use before that.[18]Mrs Lopes looked at the forms the cleaners had signed to record that they had flushed the taps (the Legionella Prevention Records) and identified that the laimants and two other employees, Lucy Ball (a white Caucasian) and Maria Miranda, were meant to have flushed the taps when the computer records showed they had not been flushed. She suspended all six of them while a disciplinary investigation was carried out. The Respondent produced the Legionella Prevention Records which had been completed by the Claimants for the Tribunal.[19]Ms Miranda resigned after she was suspended.[20]Mr Dane Chambers, the Assistant Soft Services Manager, carried out the investigation. He spoke to Mr Marsh, who told him how the Respondent’s water system and the Monitors worked and gave him the computer records which showed that the flushes had not been done.[21]Mr Chambers also tested the Monitors by flushing the taps himself. Those tests showed that the Monitors recorded when the taps were flushed as Mr Marsh had said. The Respondent produced the records of Mr Chambers’ tests ([207, 253 and 349]).[22]Mr Chambers spoke to each of the six suspended employees, including each of the Claimants, about what had happened. He showed them the computer records for each of the days that flushes had not occurred and on which they were meant to have done them.[23]The Claimants told Mr Chambers the following about what they had done:23.1 Mrs D’Sa. She had been working on 19, 20, 22, 27, 28, 29, 30 September 23.1.1 She said that she knew the water system had to be flushed every day for two minutes in the ICU. She said that she had flushed it on each of the days. She said that she knew that she had to record the flushing on the Legionella Prevention Record. She said she knew how important it was to flush the taps and that the Legionella Prevention Record was a legal document.23.2 Mr Falcao. He had been working on 18 and 25 September 2023 and was meant to have flushed the taps on each of those days. 23.2.1 He said that that in the Ward the water had to be flushed twice a week for 2 minutes, and that he had to record that on the Legionella Prevention Record. He said that he had done that on each of the 18 and 25 September before signing the record. He said that he knew how important it was to flush the taps.23.3 Mrs Vales: She had been working on 21, 23, 24, 25 and 26 September 23.3.1 She said that she knew that the taps in the ICU had to be flushed everyday, and that she had to sign the Legionella Prevention Record. She said that she always flushed the taps. She said that she understood that Legionella could kill.23.4 Mrs Fernandes: She had been working on 8 October 2023 and was meant to have flushed the taps on that day. 23.4.1 She said that she knew that the taps in the ICU had to be flushed daily for two minutes. She said that she had done so but said she had definitely done it on Monday but might have missed the room by accident on Sunday, which was the 8th. She did not answer questions about her knowledge of the importance of signing the Legionella Prevention Record.[24]Mr Chambers produced a report which recommended that each of the Claimants should have their actions considered at a disciplinary hearing. His report included the computer records (for the Claimants, Mr Marsh and Mr Chambers), the Legionella Prevention Records and the minutes of his investigation interviews with the Claimants. The interview records had been sent to the Claimants for them to comment on.[25]Mr Chambers also interviewed Lucy Ball as part of the disciplinary investigation. He recommended that her case should also be considered at a disciplinary hearing. The disciplinary hearings[26]Mrs Lopez conducted the disciplinary hearings. She wrote to the Claimants and Mrs Ball and Mrs Miranda telling them that the disciplinary allegations they had to respond to were the following:26.1 Gross Misconduct for breach of company reporting and operating procedures – this was because they had failed to flush the system but had signed the Legionella Prevention Record to say that they had;26.2 Serious Infringement of health and safety breach & bringing the Company into disrepute – this was because they had failed to flush the system and had therefore exposed Hospital users to a health risk, damaging the Respondent’s reputation.26.3 A breach of mutual trust and confidence – this was because they had signed the Legionella Prevention Record when they had not flushed the system and the Respondent could not therefore trust them.[27]Her letter to the Claimants warned them that if those allegations were proved they could be considered as gross misconduct and the Claimants could be dismissed without notice. She also advised them of their right to bring someone to support them to the disciplinary hearing. The letter included copies of the investigation report which had prepared by Mr Marsh and the Respondent’s disciplinary policy. The disciplinary policy[28]The Respondent produced a copy of the Disciplinary Policy for the Tribunal (The Policy’). The Policy lists conduct which the Respondent regards as potentially being gross misconduct; it warns the Respondent’s employees that they will be at risk of immediate dismissal without notice pay if they act in any of the ways detailed in the Policy. Among the conduct described as gross misconduct in the Policy are the following:28.1 Falsification of reports… or any company document28.2 Serious infringement of health and safety rules.[29]Mrs Lopes conducted disciplinary hearings with the Claimants on 23 October 2023. During the hearings the Claimants said the following about the allegations:29.1 Mrs D’Sa. She had been working on 19, 20, 22, 27, 28, 29, 30 September 29.1.1 Initially she said that the investigation report related to Mr Falcao and not her, but Mrs Lopes confirmed that was just an error in the name and she would correct it. Mrs D’sa said that she knew the water system had to be flushed every day for two minutes in the ICU. She said that she was sure that she had flushed the taps on the days in question as she had done so for 9 years; she suggested that perhaps she had not turned the taps on enough to be shown by the monitors. She said that all staff knew the importance of flushing and had been reminded of it by the Patient Ambassador.29.2 Mr Falcao. He had been working on 18 and 25 September 2023 and was meant to have flushed the taps on each of those days.29.2.1 He said that in the Ward he had flushed the sink and the shower and knew that he had to flush both. He said that he was not sure whether he was meant to flush hot or cold but had flushed one or the other. He said that he forgot to sign the Legionella Prevention Report but that ‘Lucy’ [Ball] had signed it for him. He later said that he did not always complete his jobs in order but he may not have flushed the tap [274] and that he signed the Legionella Prevention Record at the end of the shift. He said that he would now sign the Record after flushing the taps rather than at the end of the day.29.2.2 Mrs Lopes said “You don’t get in trouble if you haven’t signed the paper if you have missed the flushing or not completed the flushing. It’s a problem when you’re signing to say you have completed the flush but it’s not been carried out. As this is a contractual agreement that we have with the Trust that we carry out flushing of out.[sic]”29.3 Mrs Vales: She had been working on 21, 23, 24, 25 and 26 September 29.3.1 She said that the Estates team had flushed the system and that they had started at 7am which was before she started at 7.30am. She said that she was certain that she had flushed the taps in the ICU for 2 minutes. She again said that she understood how serious the issue was for patients. She asked whether the monitoring system had been checked but could not explain why it showed she had not flushed the taps.29.4 Mrs Fernandes: She had been working on 8 October 2023 and was meant to have flushed the taps on that day. 29.4.1 She said that she had opened and closed the taps in ICU before being called away, she said that she had signed the record at the end of her shift [357]. Her representative said that she had not worked in the ICU before the 8 October and that the Respondent needed to train its staff on the importance of completing the Legionella Prevention Record.[30]Mrs Lopes wrote to each of the Claimants on 24 October 2023, telling them of her decision to dismiss them without notice on the ground that each of the allegations was proved. In particular, she wrote that the Claimants’ actions in signing the Legionella Prevention Records to say they had flushed the system when the computer records from the monitoring system showed that they had not, had destroyed the Respondent’s trust in them.[31]The Claimants each exercised their right to appeal against that decision. Their letters of appeal and the appeal minutes show the following new accounts that were provided by the Claimants:31.1 Mr Falcao suggested that his supervisor Evle had asked him to sign the Legionella Prevention Record on 23 September; Lucy (Ball) had only put the date on that record on 18 September 2023 but had not signed for him as he had suggested in the disciplinary hearing. He objected to what he described as the ‘surveillance’ of staff by using the Monitors. He suggested that the Monitors had been used to target staff that the Respondent wanted to dismiss to reduce the staff numbers by 15 without having to pay redundancy pay [280-1] and [282f].31.2 In his appeal his representative suggested the dismissal without notice for a first offence was very harsh and that there were other disciplinary outcomes that could have been taken.31.3 Mrs Vales and Mrs Dsa made similar points about surveillance in statements they submitted in relation to Mr Falcao’s appeal [286-287] and [288-289] respectively.31.4 Additionally, Mrs Vales suggested in her appeal hearing that she and the other Claimants had been racially targeted [334]. She said that she had occasionally asked other staff to flush the taps if she could not access the room because there was patient in it [336] but then said that the room which was the subject of the disciplinary charges was not a patient room so that explanation did not apply [336].31.5 Mrs D’sa: Insisted that she had flushed the taps [239]; she suggested that the monitors were not working accurately [239].31.6 Mrs Fernandes: said in her appeal that she should have received a warning as it was her first offence [362]. She said that she had flushed the tap, but a nurse had asked her for hand gel [366].[32]The Claimants’ appeals were considered but rejected by Mrs Foster on the grounds that the Claimants had been shown to have falsified the Legionella Prevention Records by signing them when the Monitors showed that they had not flushed the system and that the result was that the employer could no longer trust them.[33]When the Tribunal stood back and considered the Claimant’s explanations during the investigation and the disciplinary and the appeal processes, all the Claimants had insisted, repeatedly, that they had in fact flushed the taps on the days that the Monitors showed they had not been flushed. Only Mrs Fernandes had suggested that she might have forgotten to do so in error, because she had not worked in the ICU before, but she had abandoned that account in her appeal, saying that she had flushed it.[34]None of the Claimants therefore accepted that they had signed the Legionella Prevention Record when they had not flushed the taps; none showed any remorse for that or suggested or said anything to the Respondent that demonstrated that they would never act in that way again. The Issues for determination (1) Unfair dismissal What was the reason for dismissal?[35]The first question for us is whether the Respondent has produced evidence to show on the balance of probabilities that the reason it dismissed the Claimants was for misconduct, which is a potential fair reason for dismissal. The Claimants argue that the true reason was not their conduct but was either of the following:35.1 Their status as Goan Indians (i.e. their race or nationality)35.2 The Respondent’s desire to reduce its cleaning staff by fifteen employees; and35.3 The Respondent’s desire to avoid paying redundancy pay to any staff dismissed to reduce the headcount by fifteen.[36]We have concluded that the evidence will show that the reason was misconduct and that the Claimants have no reasonable prospect of showing any of the reasons they argue.[37]That is because we found Mr Marsh’s statement very compelling in its description of the circumstances which led him to buy and then to install the Monitors and his evidence as to how the use of the Monitors showed that the cleaning staff were not flushing the taps as required.[38]The buying and installation of the Monitors are not matters about which the Claimants had any knowledge, and they have not tried to suggest in their statements that the Monitors were not installed for the reasons that Mr Marsh has suggested in his statement. Similarly, and of critical importance, the Claimants have not identified any grounds on which they could reasonably suggest that the readings produced by the Monitors (which were relied upon by the Respondent) are inaccurate or could not reasonably have been relied upon. We found it very compelling that both Mr Marsh and Mr Chambers independently tested the Monitors to ensure that the readings from them were accurate and did show when taps and showers had been flushed.[39]We think that the Claimants have no reasonable prospects of showing that the monitors were bought or installed to single out or target Goan cleaners or to allow the Respondent to dismiss 15 cleaners for the following reasons:39.1 We think a Tribunal will inevitably accept Mr Marsh’s evidence as to:39.1.1 The reasons for buying and installing the Monitors, namely to monitor the water temperature in the water system to identify areas to test because their temperatures were likely to allow Legionella to grow.39.1.2 His later discovery that the Monitors could be used to show when the taps had been flushed – but that was not the purpose for which they were initially bought39.2 Secondly, the Claimants have no reasonable prospect of showing that Mr Marsh had any knowledge of which cleaning staff were responsible for cleaning any specific rooms and/or when they were rostered to do so. He could not therefore have installed the Monitors to target Goan staff. Indeed, one of the cleaners who was ‘caught’ was Lucy Ball, who was not Goan. Further, a Goan cleaner Clacy Aruajo was investigated because the Monitor showed they had not flushed a tap on a day they were scheduled to do so, but the disciplinary action against them was discontinued because they had not signed the Legionella Prevention Record to show that they had flushed the tap in question. If the Respondent’s intention was to target Goan’s and dismiss them we concluded that it would have given Clacy a warning at least.39.3 Thirdly, if the cleaners had flushed the taps, the Monitors would record that fact. As a result, the use of the Monitors could only be used to target staff for dismissal if Mr Marsh knew that certain of cleaning staff were not flushing the taps. The only evidence he had was the Legionella Prevention Records which all the staff signed. Those records could not of themselves allow him to know which cleaners were not flushing taps and which were.39.4 Lastly, the Claimants have not identified any evidence in their statements to support their arguments on this point. They have not described any process or evidence relating to the allegation that the Respondent needed to reduce its cleaning staff numbers by fifteen. Did the Respondent have a genuine belief in misconduct?[40]We have concluded that the Claimants have no reasonable prospect of showing that the Respondent did not have a genuine belief in misconduct. The Respondent’s evidence on this point is overwhelming, it can rely upon:40.1 The evidence of Mr Marsh as to the testing and operation of the Monitors40.2 The computer records produced by the Monitors which show that when Mr Marsh and Mr Chambers flushed the taps the Monitors accurately recorded that, and that they showed no flushes on the days the Claimants were scheduled to flush them40.3 The Legionella Prevention Records which show that all the Claimants signed them for each day they were supposed to have flushed the system indicating that they had done so40.4 The training and Tool Box training records showing that the Claimants were told of the importance of completing those records and the reasons for them.40.5 The Claimants’ account during the investigation and disciplinary hearings during which they insisted that they had flushed the taps, when the Monitors showed they had not40.6 The Disciplinary Policy which warned staff that falsification of reports… or any company document and serious infringement of health and safety rules could be treated as gross misconduct40.7 The evidence of Mr Marsh, Mr Chambers, Mrs Lopes and the Claimants that the presence of Legionella presented a very serious risk to patient and staff safety.[41]The Claimants’ statements do not identify any grounds to suggest that the Respondent could not and did not think that the Claimants’ actions amounted to misconduct. Did the Respondent have reasonable grounds for that belief?[42]We have concluded that the Claimants have no reasonable prospect of showing that the Respondent did not have reasonable grounds for believing that the Claimants had committed misconduct for the reasons we have detailed at paragraphs 40 and 41 above. Had the Respondent carried out as reasonable an investigation in the circumstances?[43]Again, we have concluded that the Claimants have no reasonable prospect of showing that the Respondent’s investigation was not a reasonable one and was not within the range of reasonable investigations which might have been carried out by a reasonable employer.[44]That is because the Respondent’s investigation had:44.1 Produced the records from the Monitors showing that taps had not been flushed;44.2 Tested that there was no error with the Monitors independently on two occasions and produced the records to show that44.3 Produced the Legionella Prevention Records which showed that the Claimants had been scheduled to work on the occasions when the taps were not flushed, and had signed to say that they had flushed them on those occasions.44.4 Provided those records to the Claimants and asked them to explain what they did, allowing them to be supported at the disciplinary hearing if they wished. Was dismissal for gross misconduct within a range of reasonable responses open to a reasonable employer?[45]We have concluded that the Claimants have no reasonable prospect of showing that dismissal was not within a range of reasonable responses open to a reasonable employer when faced with the conduct of the Claimants.[46]We have reached that conclusion for the following reasons:46.1 First the conduct, namely “falsification of reports… or any company document and serious infringement of health and safety rules” are identified as potential gross misconduct in the disciplinary policy.46.2 Secondly, the main reason for the Claimants’ dismissals was not the fact that they had not flushed the taps, but rather that they had signed the Legionella Prevention Reports to say that they had when they had not. As Mrs Lopes said “You don’t get in trouble if you haven’t signed the paper if you have missed the flushing or not completed the flushing. It’s a problem when you’re signing to say you have completed the flush but it’s not been carried out.” We concluded from that that the act of failing to flush was likely to be treated as misconduct rather than gross misconduct by the Respondent, but the act of signing falsely was regarded as gross misconduct. That is abundantly clear from Mrs Lopes’ letters confirming the reasons for the Claimants’ dismissals.46.3 So, while Mrs Fernandez had only failed to flush a tap on one occasion (8 October 2023) and was working in an unfamiliar area of the hospital, it was not that single failure which was the cause of her dismissal; it was the fact that she had signed the Legionella Prevention Record to say that she had when she had not. That act destroyed the Respondent’s trust and confidence in her. In the same way, Mr Falcao was not dismissed for failing to flush taps on two days, he was dismissed for signing the record to say that he had when he had not.46.4 Critically, none of the Claimants, with the exception of Mrs Fernandez, ever suggested that they had not or even might not have flushed the taps when they were supposed to have done so. All the other Claimants insisted that they had, and Mrs Fernandes said that she had at her appeal, and could provide no explanation for why the Monitors showed that they had not. Once the Respondent had tested the Monitors and found them to be working accurately, it was certainly within a range of reasonable responses for it to conclude that the Claimants were not telling the truth about flushing them; indeed, a Tribunal might very well conclude that that was the only decision reasonably open to the Respondent46.5 Given the importance of the flushing and the very considerable risks posed to patients and staff by Legionella and other water borne bacteria, which the Claimants accept they knew of and agreed with, the Respondent was faced with staff which it had reasonably concluded were not being honest about their actions and upon who it relied to perform a safety critical function within the hospital. Their role was of even greater importance in the ICU given the vulnerable state of patients within it and the greater risk to their health caused by Legionella.46.6 It is almost inevitable, in our view, that a Tribunal will conclude that any reasonable employer would have concluded that it could not continue to employ staff it could not trust to be truthful to fulfil such a critical role. That none of the Claimants ever accepted what they had done, apologised for it and suggested that they would never do it again, with the result that the Respondent might believe that there was no future risk of the Claimants acting in the same way, in our view, makes it well within a range of reasonable responses for an employer not to give them a lower penalty such as a final written warning, even though it was their first disciplinary offence in a long period of service. Wrongful dismissal[47]The Respondent has to show that the Claimants committed gross misconduct on the balance of probabilities. Gross misconduct is either wilful disobedience of a management instruction or gross negligence.[48]In the present case, we have concluded that the Claimants have no reasonable prospects in relation to this claim. That is because, for the reasons we have given above at paragraphs 45 and 46, we are certain that the Respondent will show that the Claimant’s wilfully disobeyed the management instruction to flush taps and then recorded that they had done so on the Legionella Prevention Record. The failure to flush the taps might be regarded as gross negligence, but Mrs Lopes’ evidence suggests that it might well have been treated as misconduct, not gross misconduct, by the Respondent. Race Discrimination[49]We have concluded that the Claimants have little reasonable prospect of producing any evidence which could or would show that they were treated less favourably on the grounds that they are Goan Indians.[50]We address each of the arguments they advance in turn in support Undertaking covert surveillance[51]The Claimants have adduced no evidence to show that the reason that Mr Marsh obtained or installed the Monitors, or that he chose specific locations to install them, was in any way connected with or influenced by the Claimant’s race.[52]For the reasons we have given above, we think it inevitable that a Tribunal will accept Mr Marsh’s stated reasons for buying and installing the Monitors and his decision to locate them in specific locations. Those reasons have nothing whatsoever to do with the Claimant’s race; they relate to need to maintain water safety and to create a proper and effective monitoring system.[53]The allegation is hopeless and entirely without merit. Making serious allegations of falsifying records and not undertaking the tasks assigned to the Claimants.[54]We have concluded that it is inevitable that a Tribunal will find that the reason that the Respondent made those allegations is precisely because the Monitors, the records produced by them, and the Legionella Prevention Records (which been signed by the Claimants) showed that the Claimants had not undertaken the tasks assigned to them and had falsely signed to say that they had.[55]There is nothing about either of those matters which is connected to the Claimants’ race: the computer records have no way of distinguishing between different races or nationalities; they only record variances in temperature. The Legionella Prevention Records are completed by all staff, irrespective of their race; the Respondent only collects them, it does not direct staff to sign when they have not flushed the system as they are supposed to.[56]The Claimants have not identified any evidence in their statements that could or might support this allegation. It is hopeless and entirely without merit. Publicly disclosing the fact of the Claimants’ suspension, the allegations of falsifying records and that the Respondent was going to dismiss them before any investigation had been commenced.[57]The Claimants have not addressed this allegation at all in their witness statements. There is therefore simply no evidence to show that there was any public disclosure of their suspension, let alone that anyone was told that they were going to be dismissed. We have concluded that the Claimants have little reasonable prospect of proving the factual allegation. Furthermore, the Claimants have not pointed to any evidence which might or could show that the reason for any alleged conduct was their race.[58]The allegation is hopeless and is without merit. Dismissing the Claimants[59]It is not disputed that the Respondent dismissed the Claimants. It is for the Claimants to point to evidence which could or might show that an effective cause of their dismissal was their status as Goan Indians. They rely on the fact that each of them is Goan and that they were dismissed.[60]They are required to show that a non-Goan cleaner who had been shown not to have flushed the taps and who had signed to say that they had done so would not have been dismissed by the Respondent.[61]We have concluded that that the Claimants have little reasonable prospect of showing any evidence which could lead a Tribunal to conclude that that would happen. That is primarily because the agreed facts do not support the Claimants’ allegation: Lucy Ball was also dismissed for the same conduct as the Claimants. She is white Caucasian. We think it inevitable that a Tribunal will therefore conclude that a white cleaner would have been treated in exactly the same way as the Claimants were and would have been dismissed.[62]Secondly, we think it inevitable that a Tribunal will accept the Respondent’s reason for dismissal, namely its belief that the Claimants had committed misconduct. That is for the reasons we have given in relation to the claim of unfair dismissal above. That reason in unrelated to the Claimants’ race.[63]We think this claim is also without merit and will be dismissed. Approved by