Mr K Ebhomielen v Isand Ltd and others: 1804937/2023 and others

EMPLOYMENT TRIBUNALS

Case No 1804937/2023

Between

In personClaimant

Ms R Senior, counsel DRAFT RESERVED JUDGMENT The unanimous decisions of the Tribunal are as follows: 1 The claimant’s complaint of victimisation by dismissal on 16 May 2023 succeeds. 2 The claimant’s complaint of unfair constructive whistleblowing dismissal fails.Respondent

Before

Employment Judge Deliberations:

In person for claimant

Ms R Senior (instructed by counsel) for respondent

Date 30 August 2024

REASONS

[1]The claimant worked for a short period at residential care units operated by the first respondent from February to June 2023. He was dismissed by the second respondent, the registered manager, before the expiry of his six month probationary period. He was then reinstated on appeal and shortly thereafter resigned.

[2]The third respondent was a deputy manager/team leader at the units at the material times.

[3]The claimant is Nigerian. He completed an M.Sc in Pharmaceutical technology and medicines control at the University of Bradford in January 2023.

[4]Immediately upon his dismissal on 16 May 2023 the claimant presented his first claim, the narrative for which began: “It all started 29th April 2023. I raised concern... on health and safety concern with management...”. He presented two further claims (16 June and 8 August – the last against the third respondent only). The claims were: protected disclosure dismissal and detriment, victimisation, race discrimination and unlawful deductions from wages. The claims were consolidated and the factual and legal issues identified and confirmed during three case management hearings: November 2023, February 2024 and July 2024.

[5]The list of factual allegations and issues was approved by this Tribunal, subject to the removal of struck out allegations and the addition of two legal tests, the victimisation questions and the threshold question for a qualifying disclosure made to a regulator. Both parties had paper copies of the list of allegations and issues at the start of this hearing and a copy was also present at the witness table. References to allegations are taken from that list, and they appear as headings in our decisions below, but the reader should note that the numbering is not sequential because the numbering system incorporated matters of background and the earlier struck out matters.

[6]The respondent had prepared a chronology and sought to agree that before the hearing. The claimant provided amendments which contained, in effect, his factual submissions and they were not agreed by the respondent. The Tribunal took the last of those claimant chronologies, of seven pages, into account in its deliberations. Submissions and Judgment

[7]The Tribunal heard oral submissions They are not repeated here but it will be apparent from our conclusions where they have born fruit (or not). The Tribunal was not in a position to give an extempore judgment on the final day. Fact finding approach.

[8]The Tribunal has determined allegations (by finding facts or reaching conclusions) to the extent necessary to determine the complaints.

[9]In making findings of fact, our primary tool has been to consider whether accounts are consistent with contemporaneous material, such as the work rotas for March, April and May, which have been invaluable in aiding our understanding. The other invaluable material has been the grievance investigation undertaken by Ms Bradshaw, which was thorough and balanced. We consider what does the totality of the chronology or circumstances tell the Tribunal about the inherent likelihood of the accounts? Does an initial impression or assessment of a witness withstand scrutiny against all the other factors?

[10]We bear in mind that people often deny unlawful acts: in Equality Act cases, where influence can be subconscious, rather than conscious, this is unsurprising and we weigh it in the mix. Justice requires witnesses to have the opportunity to comment on significant disputed matters.

[11]We address our conclusions on the various allegations in the order that is convenient taking into account the relevant findings of fact (and bearing in mind the claimant’s initial pleading started with – (“....it all started 29 April....”), matters expanded.

The Law

[12]The Employment Rights Act 1996 whistleblowing provisions (SS 43A to C, 47B, 94, 95 and 103A) and relevant case law principles are well known. Section 43B relevantly provides: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

[13]Section 47B(1) of the Employment Rights Act 1996 relevantly provides: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.” Section 103A relevantly provides that “An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosure.

[14]The Equality Act 2010 provisions most engaged by this case are as follows:

[15]Section 13 relevantly provides: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Section 26 relevantly provides:- (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …….. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[16]Section 27 relevantly provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[17]In drawing inferences, that is making further findings of fact from indirect evidence such as the conduct of a party, the Tribunal has to exercise the same care that it exercises in making any finding of fact. Where matters or omissions appear troubling and raise questions, but an explanation is given and accepted by the Tribunal as the most likely, the reprehensible conduct of proceedings is unlikely to have any bearing on the reason for alleged discriminatory conduct, particularly many years before. (For similar, see Lord Justice Underhill, paragraph 38 C DeSilva v NAFTHE UK

EAT/0384/07/LA

[18]In examining primary facts, poor treatment is not enough to establish discrimination. See in particular Madarassy v Numora International Plc

[2007] IRLR 246

para 56, per Mummery LJ: “The bear facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination”.

[19]If the tribunal is satisfied that the prohibited characteristic was one of the reasons for the treatment in question, this is sufficient to establish direct discrimination. It need not be the sole or even the main reason for that treatment; it is sufficient that it had a significant influence on the outcome: Lord Nichols in Nagarajan v London Regional Transport

[2000] 1AC501

House of Lords at 512H to 513B. Significant in this context means not trivial.

[20]Section 23 relevantly provides:- ..”(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case”. In discussing comparators for direct discrimination in race cases Lord Hoffman in Ahsan v Watt

[2008] ICR 82

paragraphs 36-37 said this: “The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise: 1. The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be. 2. The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant: section 3(4). 3. The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case. 4. It is probably uncommon to find a real person who qualifies under section 3(4) as a statutory comparator. Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.” 5. Direct evidence of discrimination is rare and frequently tribunals have to infer discrimination from all the material facts: Elias J (President) in Ladell: “Where the applicant has proven facts from which inferences could be drawn that the employer treated the applicant less favourably [on the prohibited ground], then the burden moves to the employer” … then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on a prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination”.

[21]Underhill J in the Martin v Devonshire Solicitors

[2011] ICR 352

, para 37 said: “Tribunals will generally not go far wrong if they ask the question suggested by Lord Nichols in Nagarajan, namely whether the prescribed ground or protected act had a significant influence on the outcome”. In Igen Limited v Wong

[2005] IRLR 258

CA the guidance issued in Barton in respect of sex discrimination cases and was said to apply and approved in relation to race and disability discrimination: “…the first stage involves the claimant establishing such facts from which the Tribunal could conclude that the respondent had committed an act of discrimination in the absence of an adequate explanation from the respondent (“such facts”). If the claimant does not prove such facts he or she will fail... It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves, in some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in... In deciding whether the claimant has proved such facts it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences [for inferences, read, further facts] it is proper to draw from the primary facts found by the tribunal... “

[22]The guidance goes on to say that in considering the conclusions that can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation. At the final stage, the respondent must establish that the treatment is in no sense whatsoever on the grounds of the protected characteristic.

[23]Mr Justice Underhill (then President) in IPC Media Limited v Millar

UKEAT/0395/12/SM

is a reminder that our starting point is to identify the putative discriminator, and to examine their thought processes, conscious or unconscious. Evidence

[24]In compliance with orders the Tribunal was provided with a hearing file as follows: 307 pages in the pleadings section; 585 pages of relevant documents. To that the Tribunal permitted the claimant to add two emails in connection with his graduation and post graduate visa correspondence with the University of Bradford. The Tribunal also ordered (on the claimant’s application) the respondent to provide probationary assessments for four colleagues of the claimant which comprised in total 205 pages.

[25]As to witness evidence, we had a file of the parties’ statements which were read and taken as the evidence in chief, to which there were some additions in questions permitted or asked by the Tribunal.

[26]The hearing timetable anticipated reading and evidence being completed by the end of Day 3, with submissions (up to an hour) on Day 4 and Day 5 for remedy. The Tribunal gave clear directions to limit the time for questions and even with those directions, the evidence and submissions did not conclude until the end of Day 4.

[27]The claimant had applied for witness orders in respect of 12 people. At a preliminary hearing to determine his application, witness orders were made for Ms Abimbola Boboe and Ms Adenike Omidele, former colleagues of the claimant. Both subsequently indicated difficulties in attending in compliance with their Orders. Ms Boboe attended in person and her evidence was heard at 11.30 on the first morning. We then heard the claimant’s evidence on that afternoon and on Day 2. Day 3 began with Ms Omidele’s evidence by video with the permission of the Tribunal, after which we heard the respondents’ witnesses. Findings relevant to the issues

Background

[28]The claimant completed an M.Sc in Pharmaceutical technology and medicines control at the University of Bradford in January 2023. His student permission expired on 30 May 2023, and in early 2023 he was seeking an upgrade of the marks awarded. He had a part time remote working role with Ferguson Optical Limited, a Trinidad and Tobago optician supplying lenses and glasses across nine branches. He received around £1200 a month for that post and he also secured work in the care sector.

[29]The claimant was employed as a Support Worker by the first respondent on 27 February 2023. The first respondent operates hospitals and residential units for adults with complex needs across the country.

[30]The claimant’s employment contract included the following: 1. Job Title1.1 You will be employed as Support Worker.

1.2 In addition to your normal duties you may on occasions be required to undertake other duties as the Employer may reasonably require from time to time. Your key duties are set out in the job description. However, your job description may from time to time be amended by the Employer. 2. Employee’s Duties

2.1 You will report to Jeff Firth or such other person as the Company may determine.

2.2 You shall, during your employment;2.2.1 use your best endeavours to promote and protect the interests of the Employer and shall not do anything which Is harmful to those Interests;

2.2.2 obey all lawful and reasonable directions given to you by the Employer;

2.2.3 not at any time make any untrue or misleading statement relating to the Employer.

2.2.4 comply with the Employer's rules, policies and procedures from time to time in force;

2.2.5 report any wrongdoing by you or proposed wrongdoing by any other employee immediately on becoming aware of It;

2.2.6 consent to the monitoring and recording of any use you make of the Employer's electronic communication systems for the purpose of ensuring the Employer's rules are complied with and they are used tor legitimate purposes.

2.3 You shall devote the whole of your working time and attention and abilities to the business and affairs of the Employer (unless prevented by ill health or accident or otherwise permitted by the Employer). 3. Place of Work 3.1 Your main place of work will be at [xxxxxxxxx] or such other place as the Employer may reasonably require. The Employer retains the right to require you to attend any other offices or locations of the Employer's as may be deemed necessary by the Employer. 4. Health, Safety and Security 4. 1 The Employer's Health and Safety Policy and Security policy will apply during your employment. 5. Term of Employment

5.1 Your employment commences on 27/02/2023.

5.2 Your period of continuous employment commences on and shall continue (subject to earlier termination as provided for in this Agreement) until such time that you chose to retire.

5.3 No employment with any previous employer counts as part of your period of continuous employment. 6. Probationary Period

6.1 Your employment will be subject to the successful completion of a six-month probationary period (26 working weeks). The terms of the Employer's Probationary Policy will apply during your probationary period.

6.2 During your probationary period:6.2.1 you must give not less than 8 weeks ' notice to terminate your employment;

6.2.2 the Employer must give not less than one week's notice to terminate your employment

[31]The contract also contained at clause 18.3 a discretionary power to terminate employment with immediate effect on payment of a sum in lieu of notice.

[32]The first respondent’s probationary period policy included the following: 3. PURPOSE 3.1 . To provide a trial period for a new employee. It allows the line manager to assess objectively whether the new recruit is suitable for the role, taking into account the individual's overall capability, skills, performance and general conduct in relation to the job in question. 3.2. To provide an opportunity for a new employee to decide at an early stage whether the job for which they applied is the right one for them. 3.3. To enable managers to confirm at an early stage to new recruits that they are viewed in a positive light by the company or, conversely, to enable the legitimate exit of any person who is proving unsuitable for a particular post. 4.4. This policy does not confer any contractual right or obligation to six months’ employment or to any other fixed period of employment and nothing in it shall affect any right of either the Company or the employee to terminate the employment at any time by proper notice. Concerns about performance 5.8. Where the supervisor has significant concerns at any stage during the probationary period, they must raise them with the probationer at the time, explain the standard required then discuss them at the next supervision meeting. Clear targets must be set and recorded to bring about improvement by the next supervision. 5.9. For the purposes of this procedure, a significant concern is anything that casts doubt on the probationer's ability or willingness to adequately fulfil the requirements of the post, including the successful completion of training. It could also include the accumulation of a number of seemingly ‘isolated’ incidents. 5.10. Where concerns have been raised previously, improvement targets set and sufficient progress has then been made, that should be confirmed to the probationer and recorded on the supervision record form at the next meeting. 5.11. Where, at any stage during the probationary period, concerns have been raised previously, improvement targets set but the required standard has not been achieved or, if improvement has been made but other new concerns have arisen, then the supervisor shall make that clear in supervision. The concerns will be confirmed in writing (this may be a copy of the supervision record form) as soon as possible after this meeting, stating that unless the required improvement is achieved by a set review date, the probationary period is likely to be considered unsuccessful. A review meeting will be held on this date. Insufficient progress by the time of review is likely to result in notice of termination of employment being served at that stage. Outcome of a probationary period for a new employee 5.12. There are 3 possible outcomes to a probationary period:• That the appointment is confirmed,

• That a further probationary period not exceeding three months is offered to the probationer or,

• That the appointment is not confirmed and that the probationer’s employment should be terminated. 5.13. The supervisor will discuss the probationer’s performance with the Unit Manager; making reference to the 'Probationary Assessment Record' and the outcome of the probation will be decided at the final review meeting. This will take place either:

• During the final month or as soon as is reasonably practical after the probationary period, when performance during the whole period can be reviewed and discussed with the probationer. Or,

• At an earlier point in the probationary period if concerns have been raised, targets set and insufficient improvement has been made, or if the concerns are of a nature that the company does not feel they can overcome.

[33]The claimant’s contract of employment also provided, in a section headed “Permission to work in the Uk”: “It is a condition of your employment that you have the right to work in the UK. Where you have a time limit on your right to work in the UK Cygnet will repeat document checks as and when required by law”.

[34]The claimant’s job description, which he signed on 27 February 2023 included the following: Under “safeguarding”, having described a responsibility to ensure everything possible is done to protect residents from abuse: “This includes an absolute requirement to report any incident of this nature you witness hear about or suspect”. Under “Summary of Responsibilities”: “to support each individual ...this may include intimate care..”; to do everything possible to maintain a safe, clean and enjoyable environment....,this will involve domestic duties”; to assist each individual..this may include the administration of emergency “when required’ medication; to maintain accurate reports; to support each individual towards managing their own behaviour by using the skills and approved behavioural support model”.

[35]The claimant and his probationer colleagues were all trained in the respondent’s policies, including equality and diversity for both staff and residents, and Freedom to Speak Up – whistleblowing.

[36]The Freedom to Speak Up Policy contained a section headed, “Disclosure to Regulators” giving details of the CQC. The policy expressed the hope that the internal mechanisms, which appeared extensive, would ensure concerns were treated sensitively, but provided that external regulators were available to staff.

[37]The internal measures included a flow chart which with processes for staff being able to raise concerns with local management, and for those not able to do so. There were many options for situations where staff did not feel able to raise them with local management.

[38]The probationers underwent a three week shadowing period at the beginning of their employment until 17 March 2023. In that period they were introduced to residents and worked with them alongside another member of staff, getting to know them and their care plans.

[39]The residents were learning disabled adults with complex needs and challenging behaviours. Their care packages generally provided for a combination of one to one, or two to one care at various times of the day and at the material times there were 15 or 16 residents. Allegation 3b Direct Race Discrimination/Harassment: From the start of the claimant’s employment “we were constantly relegated and treated like illegal immigrant like we are of less value” in that: the company (Mr Firth, and deputies Ms Levitt, Ms De Abreu) allocated workers to the rota, such that colleagues were “grouped together” to work on units according to their skin colour;

[40]The claimant commenced employment with a number of “new starters” on or around that time. Those new starters were: Lauren Woodhead (white, days), Josephina Kankam, who was employed for nights and was black (Afro Caribbean), but as a result of maternity transferred to days in mid April, Adenike Omidele (days -black Nigerian), the claimant (days - black Nigerian), Priscilla Amoako (nights) Samuel Ademulure (black Nigerian, days) , Paige (white British team leader), Gemma (white British team leader), Olubukola “Victoria” Ikukoyi (black, Nigerian, nights). The units where the claimant worked employed around 60 people in total.

[41]The units were managed by Mr Firth, registered manager, with two deputy managers, an administrator, and three or four team leaders for each of two teams – the green team and the orange team. Fifteen or so support workers on each team covered the whole week of day time hours alternating blocks of Saturday, Sunday, Monday, Tuesday or Wednesday, Thursday, Friday. Colleagues also picked up overtime shifts from time to time.

[42]The claimant was a green team member. The teams were equally diverse comprising people the claimant would identify as Black, Caucasian and Asian – those were the terms to which the claimant referred in his pleadings and during this hearing. Within those groups there was also great diversity.

[43]There were also four to five colleagues for each team who covered waking night shifts, again , with the three racial groups represented amongst those colleagues, albeit the majority were black colleagues.

[44]In total the units employed around 50 to 60 staff. Around 20 to 25 percent of the sixty or so staff were not British born, coming from Nigeria, South Africa, Pakistan, India, Nepal, Portugal, Ukraine, the Philippines and Poland. Of the British born colleagues, around two thirds identified as white.

[45]The electronic staff rotas were undertaken by Mr Firth. New, full time staff were added to the rota at the bottom of each team list, or where a vacancy line appeared. Reduced hours staff appeared underneath them and night shift staff below them. Below that were bank staff. There was no racial grouping of staff in the rota. Of those that worked night shifts, they worked the night shifts because they wished to do so.

[46]Ms Boboe joined the respondent in September 2022, initially on day shifts in the Green team. She contacted management – Ms Levitt - seeking permanent night shifts for childcare reasons and that was accommodated. She also approached the respondent because she and three other Nigerian colleagues needed visa sponsorship. Mr Firth or his deputy Ms Levitt confirmed that sponsorship was not available at these units. Instead, Ms Boboe told us, her husband obtained sponsorship through his work enabling the family to remain.

[47]Ultimately she left the respondent at the end of 2023 to join the NHS where she is not permitted to do permanent night shifts.

[48]The claimant relied on the allocation sheets for the weekend of 13 and 14 May 2023 to support his allegation that black staff were “grouped together”.

[49]On each day a team leader on duty would allocate colleagues to particular residents within the unit on “allocation sheets”. The allocation sheets list the residents with day staff names against each one, and then waking night staff for each of the six units, or flats. In the five week period 10 April to 15 May the claimant was allocated to the two service users he described as the most challenging on 2 and 4 occasions respectively. That was not a disproportionate allocation.

[50]It is self evidently the case that if most of the night staff are black colleagues, then they will appear together on allocation sheets. Non black colleagues appear less frequently on the orange and green team night shifts because there are less of them. Similarly, in random allocations of day staff to particular residents, amongst a diverse workforce, it will happen that colleagues sharing particular characteristics will work together at particular times. These are not facts from which we could decide that there was “racial grouping” of staff to particular residents or units by management – this is only wholly unlikely and unworkable and fanciful on the materials before the Tribunal – which included the evidence of Mr Firth and Ms De Abreu on the practical arrangements, which we accepted.

[51]The claimant also alleged that Ms Boboe had said to him: “black staff don’t last long here and they don’t stay on day shift”. The claimant first reported this comment to Mr Firth on 3 May 2023. The claimant said, when asked to confirm who had said this, “ if you want to survive.. You have to be on nights. Staff are intimidating”. He did not provide Ms Boboe’s name.

[52]When the claimant was interviewed about these events in May he said “My colleagues who are night staff told me if you work on night shift you won’t have the same issues, and will not last long working on days as a black employee”.

[53]When it was put to him that she had not said what he reported, he said: we had the conversation several times and she told me “you are strong” and she said “I don’t want to stay in the day shift where the caucasians and asians are” and I am sure she stayed on nights”.

[54]He did confirm Ms Boboe’s identity when seeking a witness order in these proceedings, and the Tribunal heard from Ms Boboe. Ms Boboe denied the comments attributed to her as she had denied them during a grievance investigation. The claimant’s position was then that she was “incredibly lying” in this denial.

[55]Ms Boboe said to this Tribunal that she and the claimant communicated in Pidgin when they saw each other at work. She accepted she and the claimant had a personal conversation as work friends. The claimant put to her – did you not advise “come back on nights” and Ms Boboe said she did not say that, but when she heard sponsorship was not being given, she advised, “come to nights to get sponsorship”.

[56]The claimant did not include any details of his alleged conversation with Ms Boboe in his statement for this Tribunal. He did include an allegation that the racial slur, “Nxxxxr” was used about him by staff at the units (albeit he had never said that during his grievance or to Mr Firth) and he provided no particulars of who or when. He had not been permitted to add this as an allegation in these proceedings. For the avoidance of doubt, we find no colleagues used that term towards the claimant in order to slur him or at all.

[57]On balance, weighing up all the evidence before us, we consider Ms Boboe did advise the claimant to come on to the night shift, whether for sponsorship or because night shift supervision was less rigorous. She and he may well have had the view that the team leaders on days (none of whom were black) were intimidating, but that was because they were rigorous towards all new staff, irrespective of race. This is blatantly apparent from a review of the five records of probationers before us (the claimant, Ms Omidele, a black colleague, Ms Diola (Pilipino), Ms Paige Furness and Ms Lauren Woodhead, two white colleagues). Team leaders and management discussed concerns and learning points as they arose and give very clear direction. They documented their discussions with staff. Examples included staff being perceived to be asleep on shift, using a mobile phone, lateness, communications, hygiene, medication and so on – such issues were addressed robustly and directly when they arose, irrespective of the personal characteristics of staff.

[58]It was also clear that staff transferred from nights to days and vice versa, again irrespective of personal characteristics but because of personal circumstances.

[59]The claimant and his black colleagues were not relegated; they were not treated like illegal immigrants; they were new starters and with their new starter white colleagues experienced robust management when issues arose. Allegation 2: The claimant and his black colleagues were not added to the respondent’s Whatsapp group (by Mr Firth, Ms De Abreu, and Ms Levitt) (direct discrimination/less favourable treatment because of race);

[60]The rotas were available to staff online three to four weeks in advance. They identified shift start and finish times. Staff were also expected to check for shift changes. Any staff-led shift changes or swaps required authorisation from Mr Firth or a deputy.

[61]Mr Firth did not operate a WhatsApp group for staff nor was he a participant (we do not consider reliable the claimant’s oral evidence that a staff member had shown him Mr Firth’s name as a participant in the staff WhatsApp group on 10 May or at all). Ms Levitt, the deputy manager, was also not a WhatsApp group member. Mr Firth used text messages from his work mobile phone to communicate directly with staff (or email) if necessary, but communications also went via deputies or team leaders.

[62]Team leaders had set up a WhatsApp group for staff on or around 2016. Ms De Abreu was added to it when she passed probation. Colleagues were generally added to it as and when they asked to be added or passed probation. There was no inclusion of the WhatsApp group in induction training. By 2023 those who were administrators included team leaders from both orange and green teams and Ms De Abreu.

[63]The group was used for informal communication/jokes and banter, but also for informal shift swaps, rota changes, and overtime and so on and general communication between the staff. We make that finding on the basis of the oral evidence and what is likely given our industrial experience, which aligned with Ms De Abreu’s evidence to a subsequent grievance investigation. Nevertheless, everyone was clear that shift swaps had to be approved by Mr Firth or a deputy formally, by email or in person, and not by WhatsApp.

[64]Mr Firth examined the WhatsApp group in July of 2023 on becoming aware of the allegations in these proceedings and produced an anonymised breakdown of its members by ethnicity. In June the claimant’s grievance outcome had clearly recommended the WhatApp group be included in induction discussions with new staff.

[65]Mr Firth’s examination of the group in July revealed that there were roughly equal numbers of white and black and other support workers who were not on the WhatsApp, as there was a proportionate representation of those on it.

[66]Ms Omidele was a black colleague who was not on the group and was not aware of it. She applied to transfer to a night shift post at a new location with sponsorship and did so in or around August 2023. Although Mr Firth’s review was July, in all likelihood the position was equally evenly spread in February to June 2023, with around 30 percent of staff of varying characteristics not on the group.

[67]Like Mr Firth, Ms Levitt was not a member or administrator on the WhatsApp group. On or around the last week of April Ms De Abreu and Ms Mitchell were on leave. The claimant asked Ms Levit if he could be on the WhatsApp group and the following week (when she was also briefly on leave) she passed that request on to Ms de Abreu. Ms De Abreu asked Ms Mitchell to add the claimant in the week commencing 1 May 2023, but he was not added. Ms De Abreu said that she remembered asking Ms Mitchell about it, who said she had asked the claimant and he had said he had not wanted to be added (which the claimant denied).

[68]On balance we consider it likely, having asked to be added and having raised it with Mr Firth, when Mr Firth confirmed it was not official and he did not use it (as he did on 3 May), the claimant would then abandon his request.

[69]These are not facts from which we could decide this allegation succeeds as a contravention. Ms De Abreu or Mr Firth did not neglect to add the claimant and Ms Omidele to the WhatsApp group because of or related to their race. It is not proven that Ms De Abreu had added white new starter colleagues (which would be the comparators in the allegation of less favourable treatment), nor, in all the circumstances above, could we infer that to be the case. This complaint is dismissed.

[70]From the week commencing 8 May 2023 Ms De Abreu stepped down to team leader in the Green Team because those shifts suited her family commitments better. That also coincided with Ms Furness, a white colleague, stepping down to be a support worker for a short spell. The other white new starter team leader was also dismissed before the expiry of her probationary period. She did not appeal that decision. Allegations 4 and 3a Direct Race Discrimination/Harassment: From the start of the claimant’s employment “we were constantly relegated and treated like illegal immigrant like we are of less value” in that: On 28 March 2023 the claimant and his black colleagues were not provided with Makaton training; After he joined the company they frequently called him for updates on his visa status

[71]On 27 March 2023 the claimant started a series of emails to explore transfer possibilities with other respondent locations.

[72]Each team had a monthly team meeting usually chaired by Mr Firth – on the last Tuesday and Thursday of the month. The meetings ran to a standard and substantial agenda with action items carried forward and a minute taker. Residents and staff needs were discussed. Staff were expected to attend these meetings when not on shift and were allocated three hours’ paid time to attend.

[73]At a meeting on 30 March, Deputy Manager Ms Levitt, standing in for Mr Firth, told green team staff that if they wanted a transfer to talk to management and they would be supported.

[74]The minutes for that team meeting also recorded action items from February that five colleagues had been allocated restrictive practice training, and two staff had been allocated Makaton training – a communication technique. The staff allocated external training in February were diverse.

[75]The minutes also recorded that Makaton level 2 training was coming out and actions for Management at the end of the March meeting were to allocate Makaton training to three colleagues (two white British colleagues and a Ukranian). The claimant did not say he volunteered at that meeting and was ignored, or indeed that his black colleagues did so. The three colleagues were allocated by Ms Levitt because they had done level 1. Race played no part in the allocation of that training.

[76]The claimant’s main reason to transfer locations was to secure a position which offered visa sponsorship because that would save the cost of his graduate visa route, albeit he was confident his post graduate visa would be granted. The claimant had understood until late March that sponsorship might be available at these units.

[77]Through his endeavours the claimant was offered an interview at Bury, but that did not proceed because the post did not offer visa sponsorship.

[78]The claimant also had a conversation in passing with Mr Firth in early April. Mr Firth advised the claimant that he was still in probation and the claimant would need to pass that probation before sponsorship or transfer. Mr Firth also explained that the claimant’s Visa status may be an obstacle because a new unit or hospital would want to know that was secure before permitting transfer and Mr Firth knew the claimant’s permission expired on 30 May.

[79]The respondent’s transfers policy did not contain a stipulation that probation was passed, or that probationers could not transfer; indeed it provided that if probation was not complete it would continue in the new setting on a transfer.

[80]Th reason why Mr Firth departed from the transfer policy in his comments to the claimant was that he considered passing probation first was the “protocol” - the general approach – of managers to transfers. Staff were marked as “P” on the rota to indicate a probationer and it was clear that passing probation was a milestone for staff. We find that Mr Firth did not want to lose the claimant early on in his employment. The units he managed had a staff vacancy rate of 5% which was good at the time for the care sector.

[81]Mr Firth did support the transfer of Ms Omidele in late August 2023 (after she had passed her probation). He did not support the transfer of Ms Furness - she ended her employment on 28 April, three weeks after stepping down from team leader to support worker. She applied separately for employment at the respondent’s hospital setting at Bierley and commenced employment there on 30 May. Mr Merkis (the second white comparator alleged by the claimant to have had transfer supported by Mr Firth) had worked at the units where the claimant worked in a variety of roles since 2020. Mr Firth supported his transfer in January 2024 to a different setting.

[82]Mr Firth managed in a firm but fair way. We reject the claimant’s oral evidence that there was anything overbearing or bullying in his early April conversation about transfers.

[83]The respondent operated a staff supervision policy which included a 9 page supervision template and monthly supervision meetings. The probationary policy provisions worked with the supervision regime.

[84]The claimant had a good supervision on 7 April with team leader Ms Mitchell, in which he was doing well, particularly on punctuality and communication. The claimant also gave favourable comments about his induction. His 7 April supervision was not uploaded or available the following week because Ms Mitchell was not at work. Team leader Ms Razzaq was on shift, and so she did another supervision with the claimant on 15 April. That was also positive.

[85]On the 16th when Ms Razzaq was on the claimant's unit she raised an issue with the claimant's serving of food to a resident and documented that on his supervision record. She also identified a communication concern as far as his communication with her was concerned about that matter. The claimant signed both supervision records on 16 April.

[86]Both the 7 April and the 15 April supervisions were similarly favourable as to punctuality and other aspects of the job role. In the document of 7 April the claimant said he was trying to learn Makaton.

[87]On 19 April the claimant attended his shift at 7.45 in accordance with the rota (see page 368). It is wrong to say that that all shifts started at 7am on the rota, which was Ms De Abreu’s evidence (see page 368). A message was sent to change the start time which the claimant did not see. On 20 April the claimant was then given a letter of concern to sign by Ms de Abreu for attending late, although the letter also suggested he had not attended at all. Ms De Abreu used a template letter and did not give it sufficient attention. Ms Omidele was also given a letter of concern about far wider matters but including that she had not attended until 8.45 that day.

[88]The claimant said in his witness statement, “Page 180 – I can confirm I did not have a meeting with Patricia De Abrue on any matters four days after my second probationary meeting.....I can confirm the letter signed by Patricia was not handed over to me by hand on the 20//04/23”. This was a statement the contents of which the claimant said to the Tribunal were true. When explored in the evidence it became apparent that he accepted he did have the meeting and he was given the letter to sign – albeit he said he only saw the second page - there was no explanation for why he had expressed the facts in his witness statement as he had.

[89]In all likelihood these letters of concern were discussed between Ms Omidele and the claimant, because all focus was on passing their probationary periods to be able to transfer or progress in the company. That said, other probationers also had letters of concern about various matters.

[90]The letter also prompted the claimant’s request to Ms Levitt be added to the WhatsApp group to Ms Levitt the following week when Ms De Abreu and Ms Mitchel were on leave, and then to Ms De Abreu when she returned.

[91]On Friday 21 April the claimant did well in an incident with a resident with difficult behaviours while out in a shop. There was a brief de-brief with him and he was praised and supported by team leader Ms Mitchell, and this was recorded in an email – the respondent’s usual practice for recording incident debriefs.

[92]On 25 April the claimant had a leave request approved by Mr Firth for 22 May. The same day Ms Jackson, the administrator, emailed to ask him for proof of his application for renewal of his permit to work, as they had previously agreed, by 2 May. He sent an apology saying the University had not yet responded to him. He had applied for an extension to cover until his Graduation ceremony in July, but had not yet heard back (was the gist of his email).

[93]At team meetings on Tuesday 25 (orange team) and 27 April (green team) Mr Firth gave information and demonstration of Makaton to help staff. He also raised hygiene issues under AOB items. One related to laundry being left unwashed and the other to mop buckets needing to be put away as if not they are a hygiene risk. In that same meeting under a heading, “positive stories” the claimant raised the support he had from colleagues in managing the incident above and raised the fair allocations of residents. Conclusions on allegations 3 a (Makaton training)

[94]These are not facts from which the Tribunal could decide harassment or less favourable treatment because of race in the way alleged. Makaton training was offered to all on a first come, first served basis with progression through the levels; the ability to allocate level 1 depended on the cycle offered by the training provider. This complaint is dismissed.

[95]We also note the administrator Ms Jackson had to keep abreast of the claimant’s permit to work status given its imminent expiry and was polite and respectful in her communications. There is a further meeting about the issue on 10 May - and we deal with that below.

[96]These allegations give insight into the claimant’s mindset when, on Friday 28 April, he called the Unison advice line about race discrimination. HIs previous last shift was Tuesday 25th and he had attended the three hour green team meeting on 27 April. Unison provided him with two advice documents that evening about race discrimination. He was also advised that the local rep could advise further and he was provided with the relevant details. Alleged Protected Disclosures 1 30 April 2023 before 2.27pm: the claimant had discussion with PDA and SR - saying a healthcare support worker (Naveed) used force to control and push service user. PDS and DR said they did not believe the support worker would do that becuse the support worker had previously been a team leader 2 2.27pm on 30 April 2023 the claimant emailed Mr Firth stating that infection control procedure was not being complied wiht because mop and bucket left on unit throughout the day 3 29 April 2023 the claimant emailed the CQC at 4.11om and 6.13 pm stating that 1) infection control procedure not complied with. - mop bucket; 2) there had been inappropriate use of restraint by former team leader Naveed against service users [A] and [B]

[97]On Saturday 29 April, the claimant’s’ first shift for four days, the claimant emailed the CQC from his personal account at 9.38am headed “safe and health concerns at...[the respondent’s units] explaining where he worked, that he wished to remain anonymous and saying as follows: 1 I realised most support worker leave the mop buckets with several chemical disinfectants throughout the day (12 full hours) after cleaning the rooms and toilets in the service. This can post a serious health risk to our service users and support worker. Most particularly our service users with learning disabilities and mental health challenges. I reported it to our team leader verbally. Team leader promised to report to management about this. Unfortunately, this has not been corrected. It is still happening at the moment because it happened this week Monday and Tuesday. I am on a current shift today. It is still happening. Secondly unnecessary restraint has been carried out by some members of staff on a specific service user with challenging behaviour. This was also reported. I still believe this is an abuse on service users. And on some occasions service users are forced to go to bed for the night as early as 5pm or 6pm. I do believe the choice of going to bed should be decided by services users unless if it poses serious health risks to themselves or other service users. The unnecessary use of restraint or neglect of service users should be reported as a safeguarding issue/abuse. I had reported this to team leaders and I hope management address these concerns. I believe I am doing the right things as I have a clean and good conscience.

[98]The claimant was on shift that morning with team leader Mr Williams and team leader Ms Razzaq. He did not raise the matters with Ms Razzaq and there was no evidence they were raised with Mr Williams. He also did not raise any of the matters above with with Ms De Abreu as originally alleged - she was not working that day). His evidence of having raised these matters was very unsatisfactory and confused.

[99]The claimant also emailed the administrator, Ms Jackson, a few minutes later the same day about his expiring permit to work, referring to a meeting they had in March. He had said in the March meeting he would make a post study application in May, but had not given a date. He went on to say the Visa would cost him almost £8000 and accordingly he was seeking sponsorship having advised the deputy managers of a desire to move to Bierley hospital. He said – “there are no concerns”, seeking to reassure Ms Jackson.

[100]At 2.27pm the next day, on Sunday 30 April, the claimant emailed Mr Firth as follows from his work email with a heading “REQUEST FOR SUPPORT AND ALLEDGED DISCRIMINATION EXPERIENCE:” Dear Sir, Good day. I hope this email finds you well. I like to use this opportunity to thank you for the educative meeting held on the 27th May [sic] 2023. I am glad you talked about the health and safety risk with regards keeping mop buckets in the unit for 24 hours round the clock.I had raised the concern previously with one of the team leader. The importance of infection control cannot be over-emphasized . I have some concerns I failed to address during the meeting. These concerns are stated below; 1, I asked during our last general meeting in March when we would be receiving our ID cards. I was told it would be sorted in due time because our pictures had been sent across to the appropriate bodies. 2, I also intimated the team leader about being added into the service general group chat. I realised since February we had not been added. Being added to the group whatsapp would enable us feel like we are part of a team. I was told by the team leader they would communicate with management about it. At the moment, I have not been added. I hope we would be added in May, 2023. 3, I was allocated [resident] today. I was also allocated [resident] last week Friday, I really enjoy working with [resident] as he is so much fun to support always. Sadly, I was told by a former Assistant team lead to speak like a normal person to him and stop blabbing. He said HE heard someone saying I do not speak well to [resident]. So I informed him if there were any concerns with regards my support to [resident], I can be informed about it and improve myself to be a better support worker.l was told to stop using husky voice making statements like “ you will bum yourself’, “dinner cooking”, “what are we having on Wednesday, we are going to have fish and chips on Wednesday”?.! took [resident] for a shop visit. It is imperative funds for trips are collected from TL office. While I was with [resident] in TL office , I communicated with him and was strictly advised by TL that I should ensure I do not speak to [resident] the way I speak and I should speak like a normal person(the way I normally talk) to everybody. TL specifically informed me, saying “ you should be yourself and stop using husky voices to respond to [resident]”. It feels the action of assistant TL and TL signify mild expressions of discrimination. Majority of my colleagues from different cultural background use the same statements or phrases when talking to [resident]. I need clarity with regards this and if possible I need more advise/ training if needed, to better support [resident] going forward. I believe [resident] deserves all the support he needs. 4, I am open to constructive criticisms, It makes me become a better version of me and I eager to learn and become a better version of myself daily. Thanks Kind regards

[101]Pausing there, the claimant said this in his original ET1 that: “It all started 29th April 2023. I raised concern in [] on health and safety concern with management. I realised infection control procedure were not complied with as mopped bucket and mop used to clean faeces and urine are left throughout the day in the unit and because we deal with services users with varying degree of learning development and challenging behaviour, this could be hazardous to their health. I also witness a [respondent] healthcare support worker using force to control and push a service user. I reported this (30/4/23) but nothing was done so I decided to send an email to the registered manager (Jeff Firth) to correct this. Instead I was blacklisted and told I raised unnecessary points. ...To ensure safety ..I whistleblowed contacting the care home regulatory body”.

[102]It is plain that he is not a good historian. It is clear and we find as follows. The claimant did not make oral disclosures about “Naveed (colleague) pushing or restraining a service user to Ms De Abreu or to Ms Razzaq on or before 2.27pm on 30 April. His evidence about this was confused and expanded to list two residents and two colleagues. He also alleged that he had observed these matters “during his shadow shifts”, that is in the three week period from 27 February. He had completed no documentation at all at any time to record either this allegation or the allegation about residents being put to bed early. This was in the context of good feedback generally on his resident notes – pink notes - and his incident reporting. There was no doubt he understood the need to report and document any incidents accurately. His failure to do so in context is very surprising and wholly contrary to the respondent’s policies and the interests of residents.

[103]Nor did the claimant raise abuse of residents in his email to Mr Firth. When the claimant said to CQC he had “reported this to team leaders, the only matter we find he had raised in passing to a team leader was the mop bucket issue in a later meeting with Ms De Abreu. Mr Firth had himself observed the same issue in April and had sought to tackle it firmly with staff in the team meeting. The claimant did not report to Mr Firth that the mop bucket issue had continued on his Saturday shift (which would have been useful information for Mr Firth), nor did he raise it with the team leaders on that shift. Conclusions on the protected disclosures

[104]It will be apparent from the findings above that we do not find the claimant’s pleaded oral disclosure 1 took place.

[105]Disclosure 2 - the email to Mr Firth - was not of itself a qualifying disclosure in our judgment. The claimant omitted to tell Mr Firth the information given to the CQC, namely that he reported the mop bucket issue had happened on Monday, Tuesday and again on his Saturday shift, the day before, and that he had observed the abuse of residents. His belief that the mop bucket paragraph to Mr Firth was made in the public interest (which he maintained in evidence) was not objectively reasonable: the email was mainly about his own interests or concerns and he had knowingly and deliberately left out the information which would have assisted Mr Firth to safeguard residents. His explanation in evidence of fearing factions and reprisals in telling Mr Firth, and the need to observe matters and then inform people when he chose, belied the obligations of his job description and was wholly at odds with the public interest. His subjective belief was not reasonable.

[106]As to disclosure 3, given the provisions of Section 43 C (2) and our findings about the respondent’s Freedom to Speak up Policy authorising disclosure to the CQC – the claimant’s disclosure to the CQC is to be treated as a disclosure to the employer. During submissions the respondent relied upon the additional requirements of 43F(1)(b), namely the additional requirement for the whistleblower to reasonably believe that the information disclosed and any allegation are substantially true – this is an additional requirement which in the circumstances of this case the claimant does not need to establish.

[107]We ask then whether in the claimant’s reasonable belief the disclosure of information within his email to the CQC, was believed by him (subjectively) to have been made in the public interest and whether he was reasonable in that belief. (Given its contents, the claimant’s belief that the reported matters tended to show the health and safety of residents was endangered was reasonable). Again we come to assess, following a structured approach, whether he also held a belief that he did so in the public interest, and whether if so, that was objectively a reasonable belief.

[108]The claimant’s evidence was that he read the respondent’s whistleblowing policy. His explanation of why he had not previously or internally reported the allegations was to say it was his choice to report depending on how he felt and the policy permitted raising to the CQC. He said in cross examination that it was Ms Senior’s opinion that he had made up the allegations of resident abuse – he did not say in plain terms this was untrue. He also did not mention to Mr Firth or the respondent in any subsequent communications (which raised many allegations) the allegations of resident abuse. During his evidence he maintained he observed things happening and decided that he would speak “at the right time”. In our judgment he may have observed residents going to bed early during his shadow shifts, because that was clearly documented, and he may have observed guiding residents, but he has inflated these matters into abuse, and his belief that he acted in the public interest in communicating with the CQC, was again, entirely unreasonable. The public interest was served by him raising any matters or concerns promptly and with sufficient detail and clarity that they could be investigated properly and fairly. The claimant held a masters degree. He fully understood his reporting obligations. We have concluded that his expression in cross examination “at the right time” meant, to suit only himself – neither the residents nor the public were served by his delay. He was concerned for his Visa situation and he sought to gain protection from dismissal during probation (which he had seen happen to another white colleague) by securing whistle blower status. The events that followed Allegation 5: KE states: On 4 May: “I reported this (30/04/23) but nothing was done, so I decided to send a mail to the registered manager (Jeff Firth) to correct this. Instead, I was blacklisted and told I raised unnecessary points.” On 4 May: KE states that he was told that if he wanted to pass his probationary period, he needed to stop making complaints – person involved alleged to be Mr Firth Allegation 6: on 4 May “I have been threatened to be quiet and stop raising concerns if I want to grown in CYGNET”

[109]We consider it likely that on seeing the claimant’s Sunday email requesting support and reporting discrimination, and not knowing of the CQC report, Mr Firth asked the two colleagues for an update on any issues with the claimant that day. Later that afternoon Ms Razzaq and the acting team leader, Mr Naveed Hussain, emailed Mr Firth copying in Ms De Abreu and Ms Levitt. They addressed the claimant’s interactions with a particular resident. Mr Hussain described telling the claimant that he should keep his tone normal with a particular resident. He then included this in his email to Mr Firth: I said I am sorry I didnt meant to tell you off but I just don’t want you to get in trouble as it doesn’t sound appropriate he said well he’s responding okay to me. I felt like he took this personally as he did not want to talk to me for rest of the shift, Jeff I did not mean to upset him I just wanted him to talk to [resident] like an adult. We all repeat words/sentences but we speak like adults and give [resident] a chance to respond”.

[110]Ms Razzaq emailed in brief terms describing a similar incident of her giving advice to the claimant to speak to the resident in a normal manner, and the claimant not accepting that advice and indicating he was using communication techniques passed on by colleagues.

[111]On Monday 1 May the claimant was in direct WhatsApp contact with a colleague, Jo Jo, about a shift swap for that week, having also spoken to Mr Firth. In passing we note that the claimant had holiday approved by Mr Firth, and spoke to him about this shift swap without difficulty, and yet said he feared reprisals from reporting abuse to him. The claimant also wanted to be able to swap with a different colleague (to be found by Jo Jo) for the following week. Mr Firth approved the shift swap between the claimant and Jo Jo that week. Jo Jo was described by the claimant as mixed race/Asian.

[112]On Tuesday 2 May Ms Jackson confirmed to the claimant that as he was now aware the units were not providing sponsorship, he would not be able to work there if his visa expired and he was asked to keep her updated. Again, a perfectly proper and polite reply to the claimant’s communication to her.

[113]On 3 May, the claimant’s next shift after his complaints to CQC and to Mr Firth, Mr Firth convened a meeting with him, with Ms Jeffrey from HR as a note taker. Mr Firth had not been made aware of the complaint to CQC and sought to deal only with the claimant’s letter to him seeking support on alleged discrimination.

[114]Mr Firth dealt quickly with the id cards and WhatsApp questions – saying Ms Jeffery covers many sites and ID badges can take time – patience was required – and the claimant could give the respondent’s telephone number/details if an issue arose when out with a service user. He then dealt with the WhatsApp matter quickly saying that he could not police it as it was not official. He advised the claimant on how to find out rota issues directly. He then moved on to the third issue - the claimant alleging discrimination by the two colleague criticising him for the use of his voice with a resident.

[115]That discussion took much longer and Mr Firth sought many times for the claimant to explain why he felt discriminated against, and to robustly put the claimant right about the need not to speak to the resident like a child. Mr Firth was also clear that concerns were investigated so if the claimant was saying others had done so, he needed to say who, and when. The claimant described other colleagues using a childlike voice during his shadowing period. Mr Firth also sought to understand why colleagues giving him advice was discrimination and the claimant raised the comment of Ms Boboe – without giving her name - as above. Ultimately the meeting ended with Mr Firth agreeing to talk to Ms Razzaq about the tone of her voice with the claimant, and being clear that if the claimant wanted to allege discrimination he would have to give clear examples of what was said. There the meeting ended.

[116]The same day Mr Firth then sent a memo to all staff requiring them to refresh their Equality and Diversity e learning by the end of May and to acknowledge receipt of the respondent’s Equality policies for both colleagues and residents by initialling those policies (which was then done). He also prepared diversity training exercises to complete at the May staff meetings and told colleagues that would be done.

[117]The claimant was not blacklisted. He was not told he had raised unnecessary points. Mr Firth did not tell him if he wanted to pass his probationary period he needed to stop making complaints. During evidence this allegation was abandoned against Mr Firth but said to have been said by Ms Razzaq privately to the claimant with the words, “if you want to grow in Cygnet”. We find it was not said on 4 May or at all. These allegations are dismissed.

[118]On 4 May the claimant sent an email to Mr Firth requesting a shift swap for the following week with a white colleague. The colleague emailed on 6 May to say he was okay with that (swapping on 9/10 May) and that he would call on Monday to confirm. Mr Firth did not reply to those emails – he had previously asked the claimant to text the work phone with shift swaps. Allegation 7: 3-5 May, 8-9 May and 13-14 May PDA gave me unrealistic deadline and frustrated my efforts while on duties for raising concerns to CQC – KE states he was required to prepare meals quickly, carry out personal care, take residents out on bus trips when on medications for recent anxiety incident. This allegation was narrowed to 13-14 May during the course of the claimant’s evidence and in his chronology

[119]On 5 May the local safeguarding team made Mr Firth aware of three concerns raised anonymously (they were the claimant’s concerns to the CQC). Mr Firth replied the same day to say the concerns would be investigated – he was very familiar with the necessary processes having undertaken 20 or so such investigations. He was asked to report back by no later than 13 May. He began his work interviewing staff on 8 May, and 10 May and reviewing CCTV, incident reports, handovers, and restraint reports. He completed his report on the afternoon of 11 May. He found the concerns unsubstantiated and the local safeguarding and CQC took the matter no further. He concluded the mop bucket allegation was not substantiated despite his own concerns in April, because the allegation was of 12 hour periods when buckets were left out and he did not find evidence to substantiate that degree of default, albeit he accepted that there were times when the buckets were not put away. 120. 22 of 60 or so staff were interviewed, Mr Firth did not interview the claimant but a random selection of staff from each team. He made no assumptions that the whistleblower was the claimant and indeed did not believe it to be him at this stage.

[121]The claimant had not heard whether his shift swap was approved for 10 May and so he attended work on time on 10 May. Ms Levitt then called Mr Ward and approved the swap and Mr Ward came into work and the claimant was released to be able to take his son to an appointment (which had been the reason for the shift swap).

[122]The claimant’s allegation about shift swaps was discussed in case management as support for his allegation that he was treated unfavourably in relation to transfers and his allegations of race discrimination. He said white colleagues (Rob and Laura) had had shift swaps approved and he had not. His position had changed by this hearing because it was apparent his swap with Jo Jo the previous week had been approved by Mr Firth and that Ms Levitt permitted his shift swap later on the morning of 10 May.

[123]His new position was that Mr Firth did not want him to swap shifts with a white colleague (Mr Ward) as opposed to a mixed race colleague (Jo-Jo) – this was complete nonsense. He also alleged Ms De Abreu/Mr Firth had deliberately not approved his 10 May shift swap, told him it was approved so that he would not attend, and then because he had attended suspecting foul play, he had foiled their plan and Mr Ward thought the claimant was smart for not being caught out. Again, this is a fanciful conspiracy allegation – Ms Levitt sorted out the practical issue for the claimant – in all likelihood Mr Firth had overlooked the request because he was concentrating on the need to investigate the CQC concerns raised. He did not recall seeing the claimant’s email and we accepted that evidence.

[124]On 10 May Ms Levitt also talked to the claimant with Ms Jackson as note taker because there was still no news on the claimant’s visa application. Ms Levitt asked the claimant if he had waited so long to apply because he thought he would get a sponsored position and the claimant explained he had had to clear his university fees before the University would provide everything he needed to apply. Ms Levitt expressed her concern that if the claimant went on leave his visa could expire while he was away. Again this was a civil and polite conversation which had to take place given the imminence of the claimant’s permission expiry. As this was the last conversation about visa/permissions we can confirm our conclusion that allegation 3 (a) is factually without merit. The claimant was not treated like an illegal immigrant by the occasions when proper enquiries were made about his progress with applications to provide him permission to work beyond the end of May.

[125]Nor was the claimant given unrealistic deadlines or work during this period – the duties he describes were all part of his job description and the only evidence in the pink notes was that the claimant had assisted a resident to have an enjoyable time with no issues while out on a bus trip. This allegation was in any event abandoned or narrowed to being about only the events on 13/14 May, which were alleged as:

[126]Allegation 8: Patricia De Abreu allocated the most challenging residents to the claimant; he was attacked by those residents; “Patricia De Abreu intentions to ensure fatal assault that could result in death occurred. I was attacked 13/5/23 and 14/05/23. I was not debriefed after the assault, not first aid treatment was done, except constant criticism from Patricia De Abreu and lack support when I needed one – all pursued as whistleblowing detriment

[127]On Saturday 13 May Ms De Abreu allocated the claimant a unit with two residents, and on Sunday Ms Razzaq allocated him a different resident. The claimant was also allocated one of same residents with a float supporter worker on Monday 8 May by Ms De Abreu, but there were no incidents on that day – all had gone well on 8 May. We repeat our findings about the allocation sheets generally. Staffing allocations had to conform to care plans (whether 1: 2 care and so on). All staff appeared to have their fair share of support to different residents. There were no patterns discernible in the allocation sheets.

[128]The claimant did complete at least 3 incident reports that weekend, including having suffered the first resident holding him and refusing to release him. The claimant had to summon other staff to help; that afternoon the same resident was reported to have engaged in inappropriate sexual behaviour, when the claimant took him to the park. On Saturday the claimant returned from that experience and was then asked to take his second Saturday resident to the pub. While at the pub the resident, who was known to throw his drinks to the floor, did so in the pub. The claimant did not report that incident in an incident report, but it is clear from Ms De Abreu’s handover notes that he reported it to her, that the pub owner had been in touch and she had provided reassurance. The claimant was not asked to make an incident report for that event - Ms De Abreu could have asked him to do so.

[129]On Sunday 14 May 2023, the claimant was allocated a different resident with a colleague allocated to the resident sharing that unit. The claimant’s resident had dietary requirements. A colleague who was visiting the unit saw that only one roast lunch was being cooked by the claimant’s colleague, and raised this with the claimant, it being obvious that the resident with dietary requirements would not be have his lunch served on time by the claimant. The same criticism was made later in the day and the claimant believed a colleague to be spying on him, and he confronted him. In fact Ms De Abreu had asked the colleague to collect the resident’s intake notes for her to review. The colleague was also upset that the claimant did not appear to take on board the resident’s dietary requirements.

[130]Ms De Abreu had debriefed the claimant on 13 May concerning the park incident and she recorded that in an email. On 14 May she also sent an email in the evening about the claimant to the other management headed KE concerns. She recorded the claimant talking to her in a catch up about having witnessed mop buckets being left around the units in his shadowing shifts and that she had explained to him that he needed tio raise information as and when raised because it impacted the service to withhold information until a catch up.

[131]She went on to relay the dietary requirements episodes above and gave him legitimate direction and support on that issue. Allegation 9: On [17]16 May 2023 Mr Firth dismissed the claimant – alleged as whistleblowing detriment and victimisation. The claimant states that Mr Firth did not follow the respondent’s probationary policies when reaching his decision to dismiss him.

[132]The claimant was not at work on Monday 15 May. He emailed Mr Firth from his personal email account at 6.56am with a subject heading: “Concerns on Victimization”. The claimant described some of the events of the weekend briefly but set out in detail the dietary requirements events, and protested that alleging he had prepared the wrong food for the resident was victimisation of him, because he had previously complained under the Equality Act about treatment by the team leaders. We find this email was a protected act, applying Section 27 2 (c ) and (d). It was not argued that the email was in bad faith, but rather it played no part in Mr Firth’s thinking because he had not seen it – he had no recollection of it.

[133]We find Mr Firth’s lack of recollection of that email in 2024, because it might have gone into junk or otherwise not been received by him, was not the case in may 2023. Mr Firth decided he was going to end the claimant’s employment that day, Monday 15 May, the day of its receipt. He invited the claimant to come to his 3 month probationary review, which was at a time when the claimant was not scheduled to be working. By this stage the claimant had also had holiday approved from 22 May until 2 June.

[134]Ms Levitt completed a probationary assessment report form for the claimant that day – 15 May - which was balanced but indicated “requires improvement” across many categories. In the discussion that followed after the claimant arrived late for the meeting Mr Firth said this: One of those concerns Kenneth is around your defensive nature when feedback or constructive criticism is being discussed with yourself, which to be honest with you Kenneth I am seeing right now. Being constantly interrupted while I am trying to speak with you and you shaking your head and smiling. What your suggesting is that all concerns that have been raised around following care plans, and your conduct are not true so all other people raising the concerns are lying and there is no reasons why people would feel the way they do when concerns are being addressed. Your colleagues have stated that you appear confrontational and intimidating when they request things or speak with you. You have also generalised a group of people over email without names or substance when raising a concern, you stated that you felt that victimised in this email while generalising a race within your email without names/examples or substance. All concerns are taken seriously at Beacon House Kenneth and I would like to hope that you can take feedback on board when trying to give feedback to yourself as everything I am discussing with you now or trying to discuss appears to be taken as a personal attack on yourself. I am here to identify and evaluate people’s performances and make sure Beacon House is safe and individuals are supported correctly and we have a positive working environment and when I am addressing concerns they do not come from anywhere Kenneth. KE – I did not do that. JF – You wrote an email stating that did you not? 134. At this point in the meeting the claimant exited for a comfort break and wrote another email in similar terms to that which he had sent the previous day. When he returned to the meeting Mr Firth, who had not seen the second email, raised the issue of the pub cup throwing incident. He then confirmed that the claimant’s demeanour that day seemed to have substantiated the colleagues’ comments about him and he confirmed his decision to end the claimant’s probation that day. 134. The email the claimant sent to Mr Firth on 30 April, which had been addressed in the meeting on 3 May, did not refer to victimisation, whereas the claimant’s email the day before his dismissal very much did. 134. Mr Firth’s main reason to dismiss was said to be a call from the pub landlady, and concern that the incident had gone unreported by the claimant, and that there was the risk of residents not being able to return to the pub. He had not, however, documented that conversation, or indeed any concerns with the claimant’s reporting previously and he did not give him targets to improve on reporting, which would have been more typical, or indeed seek to investigate the concerns raised by Ms De Abreu any further, which was a more typical approach with probationers. It was also clear that the claimant had reported the pub incident to Ms De Abreu and she had documented a conversation with the pub to reassure them on the day. 134. Albeit a team leader had been let go by Mr Firth during probation, which suggests that for serious matters he would not always go through the need to allow improvement, we consider that what was in his mind is best informed by what he said at the time, and the other contemporaneous material. From the extract above, we consider the claimant’s complaint of victimisation/Equality Act sent early the previous morning was a material influence on Mr Firth. Asking ourselves – why did he dismiss the claimant, we find there were three main influences: the concerns raised by Ms De Abreu about the dietary requirements incidents and communication with colleagues; the pub incident and the claimant’s complaints of discrimination/victimisation. A fourth element form completeness and if we are wrong that the claimant had made protected disclosures, was that by this stage, given Ms De Abreu’s email about the claimant raising matters from his shadow shifts, we consider Mr Firth knew that in all likelihood the claimant was the CQC communicant and this too influenced his decision. 134. The claimant’s complaint that Mr Firth subjected him to a protected disclosure detriment by dismissing him fails, because we have not upheld that the claimant made a protected disclosure. As for the victimisation allegation – this succeeds – the claimant’s protected act was a material influence on Mr Firth’s decision to dismiss him.

[135]Allegation 13 On 27 June 2023 Mr Bingley refused the claimant’s transfer request (to be transferred to either Bury, Bierley or Harrogate) and emailed the claimant to attend work on 28 June, the next day, at Kirkside – said to be direct race discrimination and whistleblowing detriment.

[136]The events that followed can be briefly summarised. The claimant immediately raised a grievance and appealed his dismissal. The grievance was investigated by Ms Bradshaw and she interviewed witnesses including the claimant in late May and on into June, producing a report and outcome by 12 June. The investigation was considered and thorough and the outcomes fair, albeit she did not herself look at the WhatsApp group members – she made a recommendation to tackle the issue, namely tell all probationers/new starters in induction. The claimant told Ms Bradshaw he had complained to the CQC, but again, he suggested that he had complained internally first, nothing was done, and so he reported matters further. Again this was not accurate history.

[137]The dismissal appeal process was also fair. Mr Bingley considered the claimant’s appeal against dismissal in a thorough and considered way. The claimant was represented by a union representative, and Mr Bingley concluded that Mr Firth had not applied the respondent’s probation policy. He upheld the appeal and reinstated the claimant in a considered letter which requested confirmation of a right to work. The claimant was clear he did not want to return to the units managed by Mr Firth. Mr Bingley and HR asked for a hospital/Bierley vacancy but there were none at that time. They identified a nearby Leeds location and when the claimant provided his right to work evidence he was directed attend for work at the nearby site. Mr Bingley also confirmed that the claimant would be paid for the shifts he had missed between his dismissal and returning to work – it was a full reinstatement.

[138]The claimant did not accept either the grievance report in total (because it considered some of the allegations not upheld and implicitly contained some fair criticism of him had been made), and he expressed concerns to Mr Bingley about his probation report but Mr Bingley confirmed that although he was still on probation, that report was null and void.

[139]Mr Bingley’s evidence was clear and straightforward. He did not know of the CQC or other alleged whistleblows. There are no facts from which we can conclude (taking into account all our other findings about transfers) that his failure to transfer the claimant to the destinations desired by the claimant was less favourable treatment because of race. These allegations are dismissed.

[140]Allegation 14 On 29 June the claimant resigned – pursued as constructive unfair dismissal, the principal reason asserted as whistleblowing detriment in that the reasons for his resignation were: Constant unfair criticism, giving unreasonable task to make me fail; Demeaning me in front of other colleagues; Bullying and discrimination against me and turning a blind eye to this; Refusing to investigate or thoroughly investigate grievance raised by me Failing to provide me adequate support, training, and transfer recommendation to do my job effectively

[141]It will be apparent from the conclusions above that this complaint must also fail. The Tribunal has not upheld the claimant’s whistleblowing case. The claimant was, generally, tackled about legitimate probationer type issues, including resident dietary requirements, how to speak to residents, and so on. He was not bullied. He was provided with support and training to do his role and feedback from his team leaders and management. A transfer was provided on his reinstatement but it was clear from his correspondence after the appeal and grievance that he would be satisfied only with: a transfer to the setting of his choice; and/or a full exoneration of his capabilities and approach to work. When that was not forthcoming he resigned. Whilst his resignation letter suggests he resigned in part at least because of the harsh treatment (or even has we have found it the victimisation which influenced his dismissal on 16 May), he has not proven the principal reason was whistleblowing detriment and the complaint must fail.

[142]The final complaint alleged by the claimant was one of an unlawful deduction from wages in relation to the expense of a £2 bus ticket for a trip with a resident. The claimant did not submit the evidence of that trip to the Tribunal and has not proven that allegation. The respondent also settled all other pay issues arising from the circumstances above with the claimant, such that we find that had there been such evidence submitted to the respondent as an expense claim, it would have been discharged. There has been no unlawful deduction of £2 and that complaint is also dismissed.

[143]The consequence of our decisions above is that a one day Remedy Hearing will be arranged, which the parties will receive in due course. If they are able to agree remedy between them, then they must let the Tribunal know. Considering the conclusions and findings above and applying them to the claimant’s schedule of loss, the likely matter arising is an injury to feelings award, and interest, and that is a matter which the parties may well be able to agree. REMEDY JUDGMENT

Background

[1]The claimant’s case for a compensatory award/financial losses does not succeed.

[2]The Tribunal awards £10,000 by way of injury to feelings.

[3]The Tribunal uplifts this award by 10% (£1000) for the respondents’ unreasonable failure to follow a provision of the ACAS code.

[4]The Tribunal awards £1286.15 by way of interest thereon.

[5]The total sum payable by the respondents is £12, 286.15.

[6]The recoupment regulations do not apply to this award.