Mrs C Conde v Cornwallis Care Services Ltd T/a Addison Park Centre: 1401622/2019
EMPLOYMENT TRIBUNALS
Case No 1401622/2019Venue PlymouthHearing 2 August 2021 Hybrid Hearing – Interpreter attended by Video
Between
Mrs C CondeClaimantCornwallis Care Services Ltd T/a Addison Park CentreRespondent
Before
Employment Judge N J RoperIn person for claimantNot represented for respondentDate 30 September 2021
JUDGMENT
The judgment of the tribunal is that the claimant’s claims of unfair dismissal and for breach of contract were presented out of time and are hereby dismissed.
REASONS
[1]In this case the claimant Mrs Cristina Conde claims that she has been unfairly dismissed, has been directly discriminated against on the grounds of race, and also brings a claim of breach of contract in respect of her lost notice pay. The respondent contends that the reason for the dismissal was gross misconduct, that the dismissal was fair, that there was no discrimination, and that the claimant was not entitled to notice pay on a summary dismissal.[2]This is the judgment following a Preliminary Hearing to determine whether or not the claimant’s claims were presented in time. Unfortunately, Mr Clarkson, the respondent’s managing director, suffered a bereavement over the weekend and was unable to attend. I decided to proceed to determine whether the claimant’s claims for unfair dismissal and for breach of contract were presented within time because this would not require any evidence from the respondent. However, whether it would be just and equitable to extend time for the discrimination claim is something which the respondent should have the opportunity to Case Number: 1401622/2019 2 address, particularly regarding the balance of prejudice, and for this reason I postponed that element of today’s hearing. A case management order of today’s date deals with relisting the discrimination claim.[3]I have heard from the claimant, and I have heard from Mrs McGuire on behalf of the claimant. I find the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to any factual and legal submissions made by and on behalf of the respective parties.
evidence.
[4]The respondent company Cornwallis Care Services Limited is a care provider and the claimant was employed as a Senior Care Assistant at the respondent’s premises Addison Park Care Home in Callington in Cornwall. The claimant’s continuous period of employment commenced on 24 October 2013, and she moved to the Callington premises in December 2016. An incident took place between the claimant and a resident JB on 20 April 2018 which led to the claimant’s dismissal. In short, another employee namely Jemma Scott reported that when JB was demonstrating challenging behaviour, the claimant pushed a plastic nappy sack in JB’s face and then put a pillow across her face. The claimant has always denied these allegations.[5]This was reported during the following week and on 29 April 2018 the claimant was suspended on full pay. This was confirmed by Mr Anstis of the respondent in a letter to the claimant on 30 April 2018. The respondent informed the Police and the relevant care authorities. The Police requested that the respondent should not carry out its own investigation. On 8 June 2018 Mr Anstis wrote to the claimant confirming that the Police were taking no further action and that the respondent could now proceed with its own investigation, and that the claimant was required to attend an investigation meeting.[6]Meanwhile the claimant had attended a Police interview and had been advised by a criminal defence solicitor, namely Mr Spencer. Mr Spencer wrote to the claimant on 27 June 2018 informing her that the Police had decided not to prosecute, and he informed the claimant that he could not advise on her employment position, but he suggested that she should seek advice from an employment lawyer.[7]In fact, the claimant had access to advice and representation from her trade union Unison. The respondent held an investigation meeting on 14 June 2018 at which Mrs Palmer of Unison represented the claimant. The matter proceeded to a formal disciplinary hearing on 6 July 2018. This had been rearranged to accommodate Mrs Palmer, but at short notice she was unable to attend and the claimant and Mrs Palmer confirmed that the meeting could go ahead and the claimant was accompanied by a companion namely Lisa Phillips.[8]The respondent decided to dismiss the claimant summarily, and this was confirmed by letter dated 16 July 2018 from the operations director Mrs Varney. The effective date of termination of the claimant’s employment was 16 July 2018.[9]Mrs Palmer of Unison then advised the claimant on an appeal against the dismissal, and she helped the claimant to prepare the appeal letter. The appeal hearing took place on 16 August 2018, and it was chaired by Mr Stuart Clarkson the respondent’s Managing Director. By letter dated 28 August 2018 Mr Clarkson confirmed that the claimant’s appeal was unsuccessful, and that her dismissal stood.[10]It seems that Unison declined to support the claimant further, and at some stage after her dismissal she sought advice from Citizens Advice. The claimant was unable to confirm exactly when that happened, or what advice she had received.[11]Some months later the claimant decided to issue these proceedings. The claimant commenced the Early Conciliation process with ACAS (Day A) on 25 March 2019. The Early Conciliation Certificate was issued on 2 April 2019 (Day B). The claimant issued these proceedings on 29 April 2019.[12]Other than suggesting that she felt stressed after her dismissal, the claimant was unable to explain why she had failed to issue these proceedings within the original three months’ time limit. The claimant was also unable to explain while she waited a further five months or so before making contact with ACAS and issuing these proceedings.[13]Having established the above facts, I now apply the law.[14]The relevant statutes is the Employment Rights Act 1996 (“the Act”). Section 111(2) of the Act provides that an employment tribunal shall not consider a complaint of unfair dismissal Case Number: 1401622/2019 3 unless it is presented before the end of the period of three months beginning with the effective date of termination, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[15]There are similar time limit provisions relating to the claimant’s claim for breach of contract, which are contained in article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the Order”).[16]With effect from 6 May 2014 a prospective claimant must obtain an early conciliation certificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings.[17]Section 207B of the Act provides:(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a "relevant provision”). But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.(2) In this section - (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.[18]I have been referred to and have considered the following cases, namely: Palmer and Saunders v Southend-on-Sea BC [1984] ICR 372; Porter v Bandridge Ltd [1978] IRLR 271 CA; Wall’s Meat Co v Khan [1978] IRLR 499; London Underground Ltd v Noel [1999] IRLR 621; Dedman v British Building and Engineering Appliances [1974] 1 All ER 520; Cullinane v Balfour Beattie Engineering Services Ltd UKEAT/0537/10; and Wolverhampton University v Elbeltagi [2007] All E R (D) 303 EAT;.[19]In this case the claimant’s effective date of termination of employment was 16 July 2018. The normal three months’ time limit therefore expired at midnight on 15 October 2018. The claimant commenced the Early Conciliation process with ACAS (Day A) on 25 March 2019. The Early Conciliation Certificate was issued on 2 April 2019 (Day B). The claimant issued these proceedings on 29 April 2019. The claimant approached ACAS after the expiry of the initial three months’ time limit, and for this reason she does not enjoy any extension of time under the Early Conciliation provisions.[20]The claimant has been unable to explain that there are any grounds relied upon for suggesting that it was not reasonably practicable to have issued proceedings within the relevant time limit. In addition, the claimant has been unable to explain the further delay between the expiry of the original three months’ time limit, and date when she issued these proceedings some six months later.[21]The question of whether or not it was reasonably practicable for the claimant to have presented his claim in time is to be considered having regard to the following authorities. In Wall’s Meat Co v Khan Lord Denning, (quoting himself in Dedman v British Building and Engineering Appliances) stated "it is simply to ask this question: has the man just cause or excuse for not presenting his complaint within the prescribed time?" The burden of proof is on the claimant, see Porter v Bandridge Ltd. In addition, the Tribunal must have regard to the entire period of the time limit (Elbeltagi).[22]In Palmer and Saunders v Southend-on-Sea BC the headnote suggests: "As the authorities also make clear, the answer to that question is pre-eminently an issue of fact for the Industrial Tribunal taking all the circumstances of the given case into account, and it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the Case Number: 1401622/2019 4 particular case, in determining whether or not it was reasonably practicable to present the complaint in time, an Industrial Tribunal may wish to consider the substantial cause of the employee’s failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Tribunal to investigate whether, at the time of dismissal, and if not when thereafter, the employee knew that he had the right to complain of unfair dismissal; in some cases the Tribunal may have to consider whether there was any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for the Tribunal to know whether the employee was being advised at any material time and, if so, by whom; the extent of the advisor’s knowledge of the facts of the employee's case; and of the nature of any advice which they may have given him. It will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there was any substantial failure on the part of the employee or his adviser which led to the failure to comply with the time limit. The Industrial Tribunal may also wish to consider the manner in which and the reason for which the employee was dismissed, including the extent to which, if at all, the employer’s conciliatory appeals machinery had been used. Contrary to the argument advanced on behalf of the appellants in the present case and the obiter dictum of Kilner Brown J in Crown Agents for Overseas Governments and Administrations v Lawal [1978] IRLR542, however, the mere fact that an employee was pursuing an appeal through the internal machinery does not mean that it was not reasonably practicable for the unfair dismissal application to be made in time. The views expressed by the EAT in Bodha v Hampshire Area Health Authority on this point were preferred to those expressed in Lawal:-[23]To this end the Tribunal should consider:(1) the substantial cause of the claimant's failure to comply with the time limit;(2) whether there was any physical impediment preventing compliance, such as illness, or a postal strike;(3) whether, and if so when, the claimant knew of his rights;(4) whether the employer had misrepresented any relevant matter to the employee; and(5) whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.[24]In addition, in Palmer and Saunders v Southend-on-Sea BC, and following its general review of the authorities, the Court of Appeal (per May LJ) concluded that "reasonably practicable" does not mean reasonable (which would be too favourable to employees), and does not mean physically possible (which would be too favourable to employers) but means something like "reasonably feasible".[25]Subsequently in London Underground Ltd v Noel, Judge LJ stated at paragraph 24 "The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, "in all the circumstances", nor when it is "just and reasonable", nor even where the Tribunal "considers that there is a good reason" for doing so. As Browne Wilkinson J (as he then was) observed: "The statutory test remains one of practicability … the statutory test is not satisfied just because it was reasonable not to do what could be done" (Bodha v Hampshire Area Health Authority [1982] ICR 200 at p 204).[26]Underhill P as he then was considered the period after the expiry of the primary time limit in Cullinane v Balfour Beattie Engineering Services Ltd (in the context of the time limit under section 139 of the Trade Union & Labour Relations (Consolidation) Act 1992, which is the same test as in section 111 of the Act) at paragraph 16: “The question at “stage 2” is what period - that is, between the expiry of the primary time limit and the eventual presentation of the claim - is reasonable. That is not the same as asking whether the claimant acted reasonably; still less is it equivalent to the question whether it would be just and equitable to extend time. It requires an objective consideration of the factors causing the delay and what period should reasonably be allowed in those circumstances for proceedings to be instituted - having regard, certainly, to the strong public interest in claims in this field being brought promptly, and against a background where the primary time limit is three months.”[27]In this case it is clear that the claimant had access to a range of advice in the lead up to her dismissal, and in the time immediately afterwards. She had advice from a criminal law Case Number: 1401622/2019 5 specialist who suggested that she should seek employment law advice. She had advice and representation from her Unison trade union representative. At some stage she also had advice from Citizens Advice. In the absence of any satisfactory explanation as to why the claimant was unable to issue these proceedings within the initial three months’ time limit, I conclude that it was reasonably practicable for the claimant to have issued these proceedings within that time limit. In addition, in the absence of any explanation with regard to the ongoing delay, even if it had not been reasonably practicable to have issued proceedings within the first three months, it cannot be said that the claimant issued these proceedings as soon as reasonably practicable thereafter.[28]For these reasons I conclude that the claimant’s unfair dismissal and breach of contract claims were presented out of time and they are both hereby dismissed.[29]This does not affect the claimant’s remaining claim for direct race discrimination, which is addressed in a case management order of today’s date.[30]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 4 to 12; a concise identification of the relevant law is at paragraphs 14 to 18; how that law has been applied to those findings in order to decide the issues is at paragraphs 19 to 30. Employment Judge N J Roper Date: 02 August 2021 Judgment sent to Parties: 16 August 2021 FOR THE TRIBUNAL OFFICE Case Number: 1401622/2019 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mrs C Conde AND Cornwallis Care Services Ltd Trading as Addison Park Centre
evidence.
[1]In this case the claimant is Mrs Cristina Conde and her remaining claim is that she has been directly discriminated against on the grounds of her race. The respondent denies the claim and asserts that it was presented out of time.[2]This is the judgment following a Preliminary Hearing to determine whether or not the claimant’s claim was presented in time, and if not, whether it would be just and equitable to allow it to proceed.[3]I have heard from the claimant, and I have heard from Mrs McGuire on behalf of the claimant. I have heard from Mr Clarkson, the respondent’s managing director, on behalf of the respondent. I find the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to any factual and legal submissions made by and on behalf of the respective parties.[4]The respondent company Cornwallis Care Services Limited is a care provider and the claimant was employed as a Senior Care Assistant at the respondent’s premises Addison Park Care Home in Callington in Cornwall. The claimant’s continuous period of employment commenced on 24 October 2013, and she moved to the Callington premises in December 2016. An incident took place between the claimant and a resident JB on 20 April 2018 which led to the claimant’s dismissal. In short, another employee namely Jemma Case Number: 1401622/2019 2 Scott reported that when JB was demonstrating challenging behaviour, the claimant pushed a plastic nappy sack in JB’s face and then put a pillow across her face. The claimant has always denied these allegations.[5]This was reported during the following week and on 29 April 2018 the claimant was suspended on full pay. This was confirmed by Mr Anstis of the respondent in a letter to the claimant on 30 April 2018. The respondent informed the Police and the relevant care authorities. The Police requested that the respondent should not carry out its own investigation. On 8 June 2018 Mr Anstis wrote to the claimant confirming that the Police were taking no further action and that the respondent could now proceed with its own investigation, and that the claimant was required to attend an investigation meeting.[6]Meanwhile the claimant had attended a Police interview and had been advised by a criminal defence solicitor, namely Mr Spencer. Mr Spencer wrote to the claimant on 27 June 2018 informing her that the Police had decided not to prosecute, and he informed the claimant that he could not advise on her employment position, but he suggested that she should seek advice from an employment lawyer.[7]In fact, the claimant had access to advice and representation from her trade union Unison. The respondent held an investigation meeting on 14 June 2018 at which Mrs Palmer of Unison represented the claimant. The matter proceeded to a formal disciplinary hearing on 6 July 2018. This had been rearranged to accommodate Mrs Palmer, but at short notice she was unable to attend and the claimant and Mrs Palmer confirmed that the meeting could go ahead and the claimant was accompanied by a companion namely Lisa Phillips.[8]The respondent decided to dismiss the claimant summarily, and this was confirmed by letter dated 16 July 2018 from the operations director Mrs Varney. The effective date of termination of the claimant’s employment was 16 July 2018.[9]Mrs Palmer of Unison then advised the claimant on an appeal against the dismissal, and she helped the claimant to prepare the appeal letter. The appeal hearing took place on 16 August 2018, and it was chaired by Mr Stuart Clarkson the respondent’s Managing Director. By letter dated 28 August 2018 Mr Clarkson confirmed that the claimant’s appeal was unsuccessful, and that her dismissal stood.[10]It seems that Unison declined to support the claimant further, and at some stage after her dismissal she sought advice from Citizens Advice. The claimant was unable to confirm exactly when that happened, or what advice she had received.[11]Some months later the claimant decided to issue these proceedings. The claimant commenced the Early Conciliation process with ACAS (Day A) on 25 March 2019. The Early Conciliation Certificate was issued on 2 April 2019 (Day B). The claimant issued these proceedings on 29 April 2019.[12]Other than suggesting that she felt stressed after her dismissal, the claimant was unable to explain why she had failed to issue these proceedings within the original three months’ time limit. The claimant was also unable to explain while she waited a further five months or so before making contact with ACAS and issuing these proceedings.[13]Having established the above facts, I now apply the law.[14]This is a claim alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges direct discrimination. The protected characteristic relied upon is race, as set out in sections 4 and 9 of the EqA.[15]Section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. Under section 123(3)(a) of the EqA conduct extending over a period is to be treated as done at the end of that period.[16]With effect from 6 May 2014 a prospective claimant must obtain an early conciliation certificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings. Case Number: 1401622/2019 3[17]Section 207B of the Act provides:(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a "relevant provision”). But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.(2) In this section - (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.[18]I have considered the following cases, namely: British Coal v Keeble [1997] IRLR 336 EAT; Robertson v Bexley Community Service [2003] IRLR 434 CA; Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640; Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT; Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA; London Borough of Southwark v Afolabi [2003] IRLR 220 CA; Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23;[19]In this case the claimant’s effective date of termination of employment was 16 July 2018. The normal three months’ time limit therefore expired at midnight on 15 October 2018. The claimant commenced the Early Conciliation process with ACAS (Day A) on 25 March 2019. The Early Conciliation Certificate was issued on 2 April 2019 (Day B). The claimant issued these proceedings on 29 April 2019. The claimant approached ACAS after the expiry of the initial three months’ time limit, and for this reason she does not enjoy any extension of time under the Early Conciliation provisions.[20]The grounds relied upon by the claimant for suggesting that it would be just and equitable to extend the time limit are that he felt upset and distressed following her dismissal and that she was unable to concentrate on the process sufficiently promptly in order to issue proceedings within time.[21]I have considered the factors in section 33 of the Limitation Act 1980 which is referred to in the Keeble decision. For the record, these are the length of and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the parties cooperated with any request for information; the promptness with which the claimant acted once the facts giving rise to the cause of action were known; and the steps taken by the claimant to obtain appropriate professional advice.[22]However, it is clear from the comments of Underhill LJ in Adedeji, that a rigid adherence to such a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion. He observed in paragraph 37: “The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time including in particular … “The length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.”[23]This follows the dicta of Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan at paragraphs 18 and 19: “[18] … It is plain from the language used (“such other period as the employment tribunal thinks just and equitable”) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the equality act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in the circumstances to put a gloss on the words of the provision or to interpret it as if it contained Case Number: 1401622/2019 4 such a list … [19] that said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).”[24]It is clear from the following comments of Auld LJ in Robertson v Bexley Community Service that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard: "It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule". These comments have been supported in Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT and Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA.[25]This case has a long and unfortunate history in that there have been a number of postponements which were caused by events which were entirely out of the control of either party. In addition, it was only fairly recently that it became clear that the claimant’s claims might have been presented out of time. This matter was also listed to be heard this morning by way of its full main hearing and the parties were present willing and able to proceed with that hearing. I had to consider the balance of hardship and prejudice between the parties in deciding whether to exercise discretion to allow the full main hearing to proceed.[26]On the one hand to determine that the claimant’s race discrimination claim was out of time and could not proceed would have deprived the claimant from having her case heard before the tribunal, in circumstances where her unfair dismissal claim has already been dismissed as being out of time, and this would have provided the respondent with a windfall. On the other hand, although the passage of time has deprived the respondent of the opportunity of calling two key witnesses (Mrs Varney who made the decision to dismiss, and Ms Scott who had raised the initial allegations against the claimant, each of whom has left the respondent’s employment and could not be present), nonetheless the respondent agreed that it was able to proceed based on the contemporaneous documents and Ms Scott’s signed statement. Mr Clarkson conceded that the respondent was not sufficiently prejudiced to deprive the claimant of the right to have a claim is determined by this tribunal.[27]I therefore decided that the balance of hardship and prejudice favoured the claimant and that it was just and equitable to allow an extension of time so that her race discrimination claim could be heard. This is dealt with in an attached judgment of today’s date. Employment Judge N J Roper Dated: 30 September 2021 Judgment sent to parties: 14 October 2021 FOR THE EMPLOYMENT TRIBUNAL Case Number: 1401622/2019 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mrs C Conde AND Cornwallis Care Services Ltd Trading as Addison Park Centre
evidence.
[1]In this case the claimant Mrs Cristina Conde claims that she has been directly discriminated against on the grounds of her race. The respondent denies the claim.[2]The parties have given their written consent for this matter to be determined by an Employment Judge sitting alone pursuant to section 4(3)(e) of the Employment Tribunals Act 1996[3]I have heard from the claimant, and I have heard from Mr Stuart Clarkson (who is the Managing Director of the respondent company). I was also asked to consider statements from Ms Jemma Scott and Mrs Bridget Varney on behalf of the respondent, but I can only attach limited weight to these because they were not here to be questioned on this evidence. Case Number: 1401622/2019 2[4]There was a degree of conflict on the evidence. I have heard the witnesses give their evidence and have observed their demeanour in the witness box. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[5]The respondent company Cornwallis Care Services Limited is a care provider. The claimant Mrs Cristina Conde is of Filipino nationality. The claimant was employed as a Senior Care Assistant at the respondent’s premises Addison Park Care Home in Callington in Cornwall. The claimant’s continuous period of employment commenced on 24 October 2013, and she moved to the Callington premises in December 2016.[6]An incident took place on 18 August 2017 which led to the claimant’s suspension pending a disciplinary investigation into potential physical ill treatment of a patient. The respondent investigated the matter, and it determined that it was appropriate to deal with its concerns by way of further training, and by moving the claimant from nightshift to day shifts so that she could be more closely supervised. The respondent did not proceed with that disciplinary investigation, but there was a background of concern about the claimant’s working practices.[7]A further incident then took place between the claimant and a resident JB on 20 April 2018 which led to the claimant’s dismissal. In short, another employee namely Ms Jemma Scott reported that when JB was demonstrating challenging behaviour, the claimant pushed a plastic nappy sack in JB’s face and then put a pillow across her face. The claimant has always denied these allegations.[8]Ms Scott reported the events at the time to her supervisor and on 29 April 2018 the respondent’s registered manager Mr Anstis met with the claimant and suspended her on full pay. This was confirmed by Mr Anstis in a letter to the claimant on 30 April 2018. The respondent informed the Police and the relevant care authorities. The Police requested that the respondent should not carry out its own investigation. On 8 June 2018 Mr Anstis wrote to the claimant confirming that he had been informed that the Police were taking no further action and that the respondent could now proceed with its own investigation, and that the claimant was required to attend an investigation meeting. Mr Anstis also met with Ms Scott and interviewed her, and the minutes of that interview confirm that Ms Scott the claimant “put a bag over the mouth of JB and JS [Ms Scott] took it away, but then the claimant got a pillow and put the pillow over her face”.[9]There was then an investigatory meeting on 14 June 2018 which was chaired by Mr Anstis, and the claimant attended and was represented by Mrs Palmer her union representative from Unison. At that interview the claimant denied the allegations as presented by Ms Scott, but she did confirm a number of matters which the respondent perceived to be inappropriate practice and potential abuse. This included failing to wear the necessary protective equipment of gloves and apron, and the claimant grabbing a cushion or pillow in front of her body to protect herself from the resident JB who was spitting at her, and the claimant then approaching JB holding the cushion. This indicated to the respondent that the claimant had failed to act on the previous concerns raised resulting in her suspension and subsequent training, particularly with regard to de-escalation in the face of challenging behaviour from dementia residents.[10]The matter proceeded to a formal disciplinary hearing on 6 July 2018. This had been rearranged to accommodate Mrs Palmer the claimant’s representative, but at short notice she was unable to attend, and the claimant and Mrs Palmer confirmed that the meeting could go ahead and the claimant was accompanied by a companion namely a nurse and work colleague Lisa Phillips.[11]The disciplinary hearing was chaired by the respondent’s Operations Director Mrs Bridget Varney. On the evidence before her which included the claimant’s comments Mrs Varney concluded that the claimant had failed to follow the relevant care plan and despite the earlier concerns and training had failed to act appropriately to de-escalate the situation when confronted with challenging behaviour by JB. Mrs Varney concluded that the allegations raised against the claimant were substantiated and that her actions amounted to gross misconduct. She decided to dismiss the claimant summarily, and she confirmed Case Number: 1401622/2019 3 this in her letter to the claimant dated 16 July 2018. The effective date of termination of the claimant’s employment was 16 July 2018.[12]Mrs Palmer of Unison then advised the claimant on an appeal against the dismissal, and she presented an appeal on behalf of the claimant, to the effect that the allegations against the claimant had been fabricated by Ms Scott. The appeal hearing took place on 16 August 2018, and it was chaired by Mr Stuart Clarkson the respondent’s Managing Director, from whom I have heard. The claimant was accompanied by Mrs Palmer. Mr Clarkson reviewed all the evidence and the claimant’s comments and decided to reject the appeal. By letter dated 28 August 2018 Mr Clarkson confirmed that the claimant’s appeal was unsuccessful, and that her dismissal stood.[13]At no stage during the disciplinary or appeal process did the claimant ever assert that she had been discriminated against, or treated less favourably in any way, because of her race.[14]On 24 February 2020, after the claimant issued these proceedings and Ms Scott had been made aware of the allegations of race discrimination, Ms Scott signed a written statement to this effect: “When we were in JB’s bedroom the hoist was in front of JB, ready to get into bed. It was known to the staff that CC [the claimant] and JB did not get on. JB was shouting. CC lent over the hoist and said “Look look - this scar - you did this to me” JB didn’t really react to this but I remember removing CC’s hand as she was leaning over JB. At this point JB was in bed and at the time she tried to spit, but it would normally be air and not spittle. We had a roll of the white nappy sacks, CC ripped one off the roll and pressed it against JB’s mouth, across the wide part of her face, on her mouth. JB looked at me and I took the bag away. Underneath the bag she was screaming and continued doing so when the bag was removed. CC then took a pillow and put it across JB’s face and plumped up as she placed it on her face, covering everything except her eyes. I did not say anything, but I took the pillow off JB. JB was the last person to be put to bed. I don’t remember CC saying anything. I work with a lot of different ethnicities and cultures within healthcare. A lot of agency staff are Eastern European, African etc and I get along well with all of them. My colleague on nights, TD is Filipino and we are very close, talking about her culture and beliefs is really interesting to me. My mum is mixed race, my family has a mix of cultures. I did not feel that CC was acting the way she was due to her culture, I believe it was abuse. These are my own words.”[15]The claimant has always disputed this version of events put forward by Ms Scott. However, the claimant conceded today at this hearing that the respondent did not dismiss the claimant because of her Filipino nationality, and she accepted that the dismissal was based on the evidence before the respondent, and because of it, albeit that she accuses Ms Scott of fabricating her statement because of her race/nationality.[16]Having established the above facts, I now apply the law.[17]This is a claim alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges direct discrimination.[18]The protected characteristic relied upon is race, as set out in sections 4 and 9 of the EqA.[19]It is a claim for direct discrimination, and under section 13(1) of the EqA a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[20]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[21]I have considered the cases of: Igen v Wong [2005] IRLR 258 CA; Madarassy v Nomura International Plc [2007] ICR 867 CA; Nagarajan v London Regional Transport [2000] 1 AC 501; Hewage v Grampian Health Board [2012] IRLR 870 SC; London Borough of Islington v Ladele [2009] IRLR 154; Brown v Croydon LBC [2007] IRLR 259 EAT; Ayodele v Citylink Ltd and Anor CA [2017]. Case Number: 1401622/2019 4[22]The issues to be determined by this Tribunal were agreed and set out in a number of previous case management orders, the first dated 8 January 2020, and then confirmed again on 9 July 2021, and on 2 August 2021. The claimant relies on two allegations of less favourable treatment said to amount to direct race discrimination. The first is that Ms Scott fabricated the allegations against the claimant because of her race. The second is that the respondent dismissed the claimant because of her race.[23]With regard to a claim for direct discrimination, the claim will fail unless the claimant has been treated less favourably on the ground of her race than an actual or hypothetical comparator was or would have been treated in circumstances which are the same or not materially different. The claimant needs to prove some evidential basis upon which it could be said that this comparator would not have been dismissed or suffered the same allegedly less favourable treatment as the claimant.[24]In Madarassy v Nomura International Plc Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination”. The decision in Igen Ltd and Ors v Wong was also approved by the Supreme Court in Hewage v Grampian Health Board. The Court of Appeal has also confirmed that Igen Ltd and Ors v Wong and Madarassy v Nomura International Plc remain binding authority in both Ayodele v Citylink Ltd [2018] ICR 748 and Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18.[25]I have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), (referred to as “s. 207A(2)”) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2009 (“the ACAS Code”).[26]The key question in this case is the extent to which Ms Scott can be said to have fabricated her allegations against the claimant because of the claimant’s Filipino nationality. I reject the claimant’s assertion that this was the case. Ms Scott’s signed statement was completed in 2020, but it is consistent with the interview which she gave contemporaneously, and which was minuted contemporaneously. The concerns raised about the claimant’s conduct were consistent with the earlier incident which led to the claimant’s suspension and the need for additional training. In addition, the claimant’s own evidence when interviewed at the time gave rise to significant concerns on the part of the respondent about the claimant’s conduct and failure to act appropriately to de-escalate the situation with JB. Furthermore, Ms Scott confirmed that she is happy to work with a number of nationalities and is of mixed race herself. Against this background it is highly improbable that Miss Scott would have deliberately manufactured circumstances and/or fabricated a statement because the claimant is of Filipino nationality.[27]The second allegation relates to the reason why the respondent dismissed the claimant. The claimant conceded today this was not because of her Filipino nationality, but that it was based on evidence which she says was fabricated. It is clear to me that Mrs Varney and Mr Clarkson acted as they did during the dismissal and the appeal process based on the evidence before them and their significant concerns about the claimant’s conduct. Given that they had employed the claimant as a Filipino for many years, and the claimant’s daughter remains employed by the respondent, it is highly improbable that they would have dismissed the claimant simply because she is Filipino.[28]In this case, I find that no facts have been established upon which the tribunal could conclude (in the absence of an adequate explanation from the respondent), that an act of discrimination has occurred. In these circumstances the claimant's claim of direct discrimination fails, and is hereby dismissed.[29]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 4 to 15; a concise identification of the relevant Case Number: 1401622/2019 5 law is at paragraphs 16 to 25; and how that law has been applied to those findings in order to decide the issues is at paragraphs 26 to 28. Employment Judge N J Roper Dated: 30 September 2021 Judgment sent to parties: 14 October 2021 FOR THE EMPLOYMENT TRIBUNAL Case Number: 1401622/2019 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mrs C Conde AND Cornwallis Care Services Ltd Trading as Addison Park Centre[1]In this case the claimant Mrs Cristina Conde claims that she has been directly discriminated against on the grounds of her race. The respondent denies the claim.[2]The parties have given their written consent for this matter to be determined by an Employment Judge sitting alone pursuant to section 4(3)(e) of the Employment Tribunals Act 1996[3]I have heard from the claimant, and I have heard from Mr Stuart Clarkson (who is the Managing Director of the respondent company). I was also asked to consider statements from Ms Jemma Scott and Mrs Bridget Varney on behalf of the respondent, but I can only attach limited weight to these because they were not here to be questioned on this evidence. Case Number: 1401622/2019 2[4]There was a degree of conflict on the evidence. I have heard the witnesses give their evidence and have observed their demeanour in the witness box. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[5]The respondent company Cornwallis Care Services Limited is a care provider. The claimant Mrs Cristina Conde is of Filipino nationality. The claimant was employed as a Senior Care Assistant at the respondent’s premises Addison Park Care Home in Callington in Cornwall. The claimant’s continuous period of employment commenced on 24 October 2013, and she moved to the Callington premises in December 2016.[6]An incident took place on 18 August 2017 which led to the claimant’s suspension pending a disciplinary investigation into potential physical ill treatment of a patient. The respondent investigated the matter, and it determined that it was appropriate to deal with its concerns by way of further training, and by moving the claimant from nightshift to day shifts so that she could be more closely supervised. The respondent did not proceed with that disciplinary investigation, but there was a background of concern about the claimant’s working practices.[7]A further incident then took place between the claimant and a resident JB on 20 April 2018 which led to the claimant’s dismissal. In short, another employee namely Ms Jemma Scott reported that when JB was demonstrating challenging behaviour, the claimant pushed a plastic nappy sack in JB’s face and then put a pillow across her face. The claimant has always denied these allegations.[8]Ms Scott reported the events at the time to her supervisor and on 29 April 2018 the respondent’s registered manager Mr Anstis met with the claimant and suspended her on full pay. This was confirmed by Mr Anstis in a letter to the claimant on 30 April 2018. The respondent informed the Police and the relevant care authorities. The Police requested that the respondent should not carry out its own investigation. On 8 June 2018 Mr Anstis wrote to the claimant confirming that he had been informed that the Police were taking no further action and that the respondent could now proceed with its own investigation, and that the claimant was required to attend an investigation meeting. Mr Anstis also met with Ms Scott and interviewed her, and the minutes of that interview confirm that Ms Scott the claimant “put a bag over the mouth of JB and JS [Ms Scott] took it away, but then the claimant got a pillow and put the pillow over her face”.[9]There was then an investigatory meeting on 14 June 2018 which was chaired by Mr Anstis, and the claimant attended and was represented by Mrs Palmer her union representative from Unison. At that interview the claimant denied the allegations as presented by Ms Scott, but she did confirm a number of matters which the respondent perceived to be inappropriate practice and potential abuse. This included failing to wear the necessary protective equipment of gloves and apron, and the claimant grabbing a cushion or pillow in front of her body to protect herself from the resident JB who was spitting at her, and the claimant then approaching JB holding the cushion. This indicated to the respondent that the claimant had failed to act on the previous concerns raised resulting in her suspension and subsequent training, particularly with regard to de-escalation in the face of challenging behaviour from dementia residents.[10]The matter proceeded to a formal disciplinary hearing on 6 July 2018. This had been rearranged to accommodate Mrs Palmer the claimant’s representative, but at short notice she was unable to attend, and the claimant and Mrs Palmer confirmed that the meeting could go ahead and the claimant was accompanied by a companion namely a nurse and work colleague Lisa Phillips.[11]The disciplinary hearing was chaired by the respondent’s Operations Director Mrs Bridget Varney. On the evidence before her which included the claimant’s comments Mrs Varney concluded that the claimant had failed to follow the relevant care plan and despite the earlier concerns and training had failed to act appropriately to de-escalate the situation when confronted with challenging behaviour by JB. Mrs Varney concluded that the allegations raised against the claimant were substantiated and that her actions amounted to gross misconduct. She decided to dismiss the claimant summarily, and she confirmed Case Number: 1401622/2019 3 this in her letter to the claimant dated 16 July 2018. The effective date of termination of the claimant’s employment was 16 July 2018.[12]Mrs Palmer of Unison then advised the claimant on an appeal against the dismissal, and she presented an appeal on behalf of the claimant, to the effect that the allegations against the claimant had been fabricated by Ms Scott. The appeal hearing took place on 16 August 2018, and it was chaired by Mr Stuart Clarkson the respondent’s Managing Director, from whom I have heard. The claimant was accompanied by Mrs Palmer. Mr Clarkson reviewed all the evidence and the claimant’s comments and decided to reject the appeal. By letter dated 28 August 2018 Mr Clarkson confirmed that the claimant’s appeal was unsuccessful, and that her dismissal stood.[13]At no stage during the disciplinary or appeal process did the claimant ever assert that she had been discriminated against, or treated less favourably in any way, because of her race.[14]On 24 February 2020, after the claimant issued these proceedings and Ms Scott had been made aware of the allegations of race discrimination, Ms Scott signed a written statement to this effect: “When we were in JB’s bedroom the hoist was in front of JB, ready to get into bed. It was known to the staff that CC [the claimant] and JB did not get on. JB was shouting. CC lent over the hoist and said “Look look - this scar - you did this to me” JB didn’t really react to this but I remember removing CC’s hand as she was leaning over JB. At this point JB was in bed and at the time she tried to spit, but it would normally be air and not spittle. We had a roll of the white nappy sacks, CC ripped one off the roll and pressed it against JB’s mouth, across the wide part of her face, on her mouth. JB looked at me and I took the bag away. Underneath the bag she was screaming and continued doing so when the bag was removed. CC then took a pillow and put it across JB’s face and plumped up as she placed it on her face, covering everything except her eyes. I did not say anything, but I took the pillow off JB. JB was the last person to be put to bed. I don’t remember CC saying anything. I work with a lot of different ethnicities and cultures within healthcare. A lot of agency staff are Eastern European, African etc and I get along well with all of them. My colleague on nights, TD is Filipino and we are very close, talking about her culture and beliefs is really interesting to me. My mum is mixed race, my family has a mix of cultures. I did not feel that CC was acting the way she was due to her culture, I believe it was abuse. These are my own words.”[15]The claimant has always disputed this version of events put forward by Ms Scott. However, the claimant conceded today at this hearing that the respondent did not dismiss the claimant because of her Filipino nationality, and she accepted that the dismissal was based on the evidence before the respondent, and because of it, albeit that she accuses Ms Scott of fabricating her statement because of her race/nationality.[16]Having established the above facts, I now apply the law.[17]This is a claim alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges direct discrimination.[18]The protected characteristic relied upon is race, as set out in sections 4 and 9 of the EqA.[19]It is a claim for direct discrimination, and under section 13(1) of the EqA a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[20]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[21]I have considered the cases of: Igen v Wong [2005] IRLR 258 CA; Madarassy v Nomura International Plc [2007] ICR 867 CA; Nagarajan v London Regional Transport [2000] 1 AC 501; Hewage v Grampian Health Board [2012] IRLR 870 SC; London Borough of Islington v Ladele [2009] IRLR 154; Brown v Croydon LBC [2007] IRLR 259 EAT; Ayodele v Citylink Ltd and Anor CA [2017]. Case Number: 1401622/2019 4[22]The issues to be determined by this Tribunal were agreed and set out in a number of previous case management orders, the first dated 8 January 2020, and then confirmed again on 9 July 2021, and on 2 August 2021. The claimant relies on two allegations of less favourable treatment said to amount to direct race discrimination. The first is that Ms Scott fabricated the allegations against the claimant because of her race. The second is that the respondent dismissed the claimant because of her race.[23]With regard to a claim for direct discrimination, the claim will fail unless the claimant has been treated less favourably on the ground of her race than an actual or hypothetical comparator was or would have been treated in circumstances which are the same or not materially different. The claimant needs to prove some evidential basis upon which it could be said that this comparator would not have been dismissed or suffered the same allegedly less favourable treatment as the claimant.[24]In Madarassy v Nomura International Plc Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination”. The decision in Igen Ltd and Ors v Wong was also approved by the Supreme Court in Hewage v Grampian Health Board. The Court of Appeal has also confirmed that Igen Ltd and Ors v Wong and Madarassy v Nomura International Plc remain binding authority in both Ayodele v Citylink Ltd [2018] ICR 748 and Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18.[25]I have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), (referred to as “s. 207A(2)”) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2009 (“the ACAS Code”).[26]The key question in this case is the extent to which Ms Scott can be said to have fabricated her allegations against the claimant because of the claimant’s Filipino nationality. I reject the claimant’s assertion that this was the case. Ms Scott’s signed statement was completed in 2020, but it is consistent with the interview which she gave contemporaneously, and which was minuted contemporaneously. The concerns raised about the claimant’s conduct were consistent with the earlier incident which led to the claimant’s suspension and the need for additional training. In addition, the claimant’s own evidence when interviewed at the time gave rise to significant concerns on the part of the respondent about the claimant’s conduct and failure to act appropriately to de-escalate the situation with JB. Furthermore, Ms Scott confirmed that she is happy to work with a number of nationalities and is of mixed race herself. Against this background it is highly improbable that Miss Scott would have deliberately manufactured circumstances and/or fabricated a statement because the claimant is of Filipino nationality.[27]The second allegation relates to the reason why the respondent dismissed the claimant. The claimant conceded today this was not because of her Filipino nationality, but that it was based on evidence which she says was fabricated. It is clear to me that Mrs Varney and Mr Clarkson acted as they did during the dismissal and the appeal process based on the evidence before them and their significant concerns about the claimant’s conduct. Given that they had employed the claimant as a Filipino for many years, and the claimant’s daughter remains employed by the respondent, it is highly improbable that they would have dismissed the claimant simply because she is Filipino.[28]In this case, I find that no facts have been established upon which the tribunal could conclude (in the absence of an adequate explanation from the respondent), that an act of discrimination has occurred. In these circumstances the claimant's claim of direct discrimination fails, and is hereby dismissed.[29]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 4 to 15; a concise identification of the relevant Case Number: 1401622/2019 5 law is at paragraphs 16 to 25; and how that law has been applied to those findings in order to decide the issues is at paragraphs 26 to 28. Employment Judge N J Roper Dated: 30 September 2021 Judgment sent to parties: 14 October 2021 FOR THE EMPLOYMENT TRIBUNAL Case Number: 1401622/2019 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mrs C Conde AND Cornwallis Care Services Ltd Trading as Addison Park Centre[1]In this case the claimant Mrs Cristina Conde claims that she has been directly discriminated against on the grounds of her race. The respondent denies the claim.[2]The parties have given their written consent for this matter to be determined by an Employment Judge sitting alone pursuant to section 4(3)(e) of the Employment Tribunals Act 1996[3]I have heard from the claimant, and I have heard from Mr Stuart Clarkson (who is the Managing Director of the respondent company). I was also asked to consider statements from Ms Jemma Scott and Mrs Bridget Varney on behalf of the respondent, but I can only attach limited weight to these because they were not here to be questioned on this evidence. Case Number: 1401622/2019 2[4]There was a degree of conflict on the evidence. I have heard the witnesses give their evidence and have observed their demeanour in the witness box. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[5]The respondent company Cornwallis Care Services Limited is a care provider. The claimant Mrs Cristina Conde is of Filipino nationality. The claimant was employed as a Senior Care Assistant at the respondent’s premises Addison Park Care Home in Callington in Cornwall. The claimant’s continuous period of employment commenced on 24 October 2013, and she moved to the Callington premises in December 2016.[6]An incident took place on 18 August 2017 which led to the claimant’s suspension pending a disciplinary investigation into potential physical ill treatment of a patient. The respondent investigated the matter, and it determined that it was appropriate to deal with its concerns by way of further training, and by moving the claimant from nightshift to day shifts so that she could be more closely supervised. The respondent did not proceed with that disciplinary investigation, but there was a background of concern about the claimant’s working practices.[7]A further incident then took place between the claimant and a resident JB on 20 April 2018 which led to the claimant’s dismissal. In short, another employee namely Ms Jemma Scott reported that when JB was demonstrating challenging behaviour, the claimant pushed a plastic nappy sack in JB’s face and then put a pillow across her face. The claimant has always denied these allegations.[8]Ms Scott reported the events at the time to her supervisor and on 29 April 2018 the respondent’s registered manager Mr Anstis met with the claimant and suspended her on full pay. This was confirmed by Mr Anstis in a letter to the claimant on 30 April 2018. The respondent informed the Police and the relevant care authorities. The Police requested that the respondent should not carry out its own investigation. On 8 June 2018 Mr Anstis wrote to the claimant confirming that he had been informed that the Police were taking no further action and that the respondent could now proceed with its own investigation, and that the claimant was required to attend an investigation meeting. Mr Anstis also met with Ms Scott and interviewed her, and the minutes of that interview confirm that Ms Scott the claimant “put a bag over the mouth of JB and JS [Ms Scott] took it away, but then the claimant got a pillow and put the pillow over her face”.[9]There was then an investigatory meeting on 14 June 2018 which was chaired by Mr Anstis, and the claimant attended and was represented by Mrs Palmer her union representative from Unison. At that interview the claimant denied the allegations as presented by Ms Scott, but she did confirm a number of matters which the respondent perceived to be inappropriate practice and potential abuse. This included failing to wear the necessary protective equipment of gloves and apron, and the claimant grabbing a cushion or pillow in front of her body to protect herself from the resident JB who was spitting at her, and the claimant then approaching JB holding the cushion. This indicated to the respondent that the claimant had failed to act on the previous concerns raised resulting in her suspension and subsequent training, particularly with regard to de-escalation in the face of challenging behaviour from dementia residents.[10]The matter proceeded to a formal disciplinary hearing on 6 July 2018. This had been rearranged to accommodate Mrs Palmer the claimant’s representative, but at short notice she was unable to attend, and the claimant and Mrs Palmer confirmed that the meeting could go ahead and the claimant was accompanied by a companion namely a nurse and work colleague Lisa Phillips.[11]The disciplinary hearing was chaired by the respondent’s Operations Director Mrs Bridget Varney. On the evidence before her which included the claimant’s comments Mrs Varney concluded that the claimant had failed to follow the relevant care plan and despite the earlier concerns and training had failed to act appropriately to de-escalate the situation when confronted with challenging behaviour by JB. Mrs Varney concluded that the allegations raised against the claimant were substantiated and that her actions amounted to gross misconduct. She decided to dismiss the claimant summarily, and she confirmed Case Number: 1401622/2019 3 this in her letter to the claimant dated 16 July 2018. The effective date of termination of the claimant’s employment was 16 July 2018.[12]Mrs Palmer of Unison then advised the claimant on an appeal against the dismissal, and she presented an appeal on behalf of the claimant, to the effect that the allegations against the claimant had been fabricated by Ms Scott. The appeal hearing took place on 16 August 2018, and it was chaired by Mr Stuart Clarkson the respondent’s Managing Director, from whom I have heard. The claimant was accompanied by Mrs Palmer. Mr Clarkson reviewed all the evidence and the claimant’s comments and decided to reject the appeal. By letter dated 28 August 2018 Mr Clarkson confirmed that the claimant’s appeal was unsuccessful, and that her dismissal stood.[13]At no stage during the disciplinary or appeal process did the claimant ever assert that she had been discriminated against, or treated less favourably in any way, because of her race.[14]On 24 February 2020, after the claimant issued these proceedings and Ms Scott had been made aware of the allegations of race discrimination, Ms Scott signed a written statement to this effect: “When we were in JB’s bedroom the hoist was in front of JB, ready to get into bed. It was known to the staff that CC [the claimant] and JB did not get on. JB was shouting. CC lent over the hoist and said “Look look - this scar - you did this to me” JB didn’t really react to this but I remember removing CC’s hand as she was leaning over JB. At this point JB was in bed and at the time she tried to spit, but it would normally be air and not spittle. We had a roll of the white nappy sacks, CC ripped one off the roll and pressed it against JB’s mouth, across the wide part of her face, on her mouth. JB looked at me and I took the bag away. Underneath the bag she was screaming and continued doing so when the bag was removed. CC then took a pillow and put it across JB’s face and plumped up as she placed it on her face, covering everything except her eyes. I did not say anything, but I took the pillow off JB. JB was the last person to be put to bed. I don’t remember CC saying anything. I work with a lot of different ethnicities and cultures within healthcare. A lot of agency staff are Eastern European, African etc and I get along well with all of them. My colleague on nights, TD is Filipino and we are very close, talking about her culture and beliefs is really interesting to me. My mum is mixed race, my family has a mix of cultures. I did not feel that CC was acting the way she was due to her culture, I believe it was abuse. These are my own words.”[15]The claimant has always disputed this version of events put forward by Ms Scott. However, the claimant conceded today at this hearing that the respondent did not dismiss the claimant because of her Filipino nationality, and she accepted that the dismissal was based on the evidence before the respondent, and because of it, albeit that she accuses Ms Scott of fabricating her statement because of her race/nationality.[16]Having established the above facts, I now apply the law.[17]This is a claim alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges direct discrimination.[18]The protected characteristic relied upon is race, as set out in sections 4 and 9 of the EqA.[19]It is a claim for direct discrimination, and under section 13(1) of the EqA a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[20]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[21]I have considered the cases of: Igen v Wong [2005] IRLR 258 CA; Madarassy v Nomura International Plc [2007] ICR 867 CA; Nagarajan v London Regional Transport [2000] 1 AC 501; Hewage v Grampian Health Board [2012] IRLR 870 SC; London Borough of Islington v Ladele [2009] IRLR 154; Brown v Croydon LBC [2007] IRLR 259 EAT; Ayodele v Citylink Ltd and Anor CA [2017]. Case Number: 1401622/2019 4[22]The issues to be determined by this Tribunal were agreed and set out in a number of previous case management orders, the first dated 8 January 2020, and then confirmed again on 9 July 2021, and on 2 August 2021. The claimant relies on two allegations of less favourable treatment said to amount to direct race discrimination. The first is that Ms Scott fabricated the allegations against the claimant because of her race. The second is that the respondent dismissed the claimant because of her race.[23]With regard to a claim for direct discrimination, the claim will fail unless the claimant has been treated less favourably on the ground of her race than an actual or hypothetical comparator was or would have been treated in circumstances which are the same or not materially different. The claimant needs to prove some evidential basis upon which it could be said that this comparator would not have been dismissed or suffered the same allegedly less favourable treatment as the claimant.[24]In Madarassy v Nomura International Plc Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination”. The decision in Igen Ltd and Ors v Wong was also approved by the Supreme Court in Hewage v Grampian Health Board. The Court of Appeal has also confirmed that Igen Ltd and Ors v Wong and Madarassy v Nomura International Plc remain binding authority in both Ayodele v Citylink Ltd [2018] ICR 748 and Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18.[25]I have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), (referred to as “s. 207A(2)”) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2009 (“the ACAS Code”).[26]The key question in this case is the extent to which Ms Scott can be said to have fabricated her allegations against the claimant because of the claimant’s Filipino nationality. I reject the claimant’s assertion that this was the case. Ms Scott’s signed statement was completed in 2020, but it is consistent with the interview which she gave contemporaneously, and which was minuted contemporaneously. The concerns raised about the claimant’s conduct were consistent with the earlier incident which led to the claimant’s suspension and the need for additional training. In addition, the claimant’s own evidence when interviewed at the time gave rise to significant concerns on the part of the respondent about the claimant’s conduct and failure to act appropriately to de-escalate the situation with JB. Furthermore, Ms Scott confirmed that she is happy to work with a number of nationalities and is of mixed race herself. Against this background it is highly improbable that Miss Scott would have deliberately manufactured circumstances and/or fabricated a statement because the claimant is of Filipino nationality.[27]The second allegation relates to the reason why the respondent dismissed the claimant. The claimant conceded today this was not because of her Filipino nationality, but that it was based on evidence which she says was fabricated. It is clear to me that Mrs Varney and Mr Clarkson acted as they did during the dismissal and the appeal process based on the evidence before them and their significant concerns about the claimant’s conduct. Given that they had employed the claimant as a Filipino for many years, and the claimant’s daughter remains employed by the respondent, it is highly improbable that they would have dismissed the claimant simply because she is Filipino.[28]In this case, I find that no facts have been established upon which the tribunal could conclude (in the absence of an adequate explanation from the respondent), that an act of discrimination has occurred. In these circumstances the claimant's claim of direct discrimination fails, and is hereby dismissed.[29]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 4 to 15; a concise identification of the relevant Case Number: 1401622/2019 5 law is at paragraphs 16 to 25; and how that law has been applied to those findings in order to decide the issues is at paragraphs 26 to 28.