Mr B AdenaikeClaimantMinistry of JusticeRespondent
Before
Employment Judge Bloch QCIn person for claimantDate 23 February 2022
JUDGMENT
[1]Dismissal of unfair dismissal complaint The complaint of unfair dismissal is dismissed on withdrawal.[2]Striking out of disability claim The complaint of disability discrimination is struck out.
REASONS
Introduction
[1]By notice dated the 17 August 2018 the preliminary hearing was listed for the purposes of identifying the claims and issues.[2]By an email to the Tribunal dated 19 January 2019 the respondents applied to strike out the claim. There were in fact two broad types of claim, the first an unfair dismissal claim and the second a discrimination claim, apparently based on both race and disability. 1 of 3[3]The claimant had considerable difficulty defining the grounds of his discrimination claims. It is apparent from reading the claim form that it is seriously underparticularised and vague in the extreme. There were also potentially serious difficulties in relation to the unfair dismissal claim.[4]That said, at an early stage of the hearing today the claimant confirmed that he was no longer claiming unfair dismissal and wished that part of his claim to be withdrawn. I explored this carefully with him and he confirmed that that was the case. Indeed, this was consistent with the list of issues which he produced for the purposes of the preliminary hearing today.[5]Therefore, the claims which remained were the race and disability discrimination claims.[6]I explored carefully with the claimant the nature of the race discrimination claim and this revealed that the claim was a fairly narrow one. The essence of the claim is that following an altercation between the claimant (who describes himself as black) and a Mr Matthew Chandler (white) a Mr Nuna who terminated the claimant’s assignment with the Ministry of Justice ignored what was said (apparently in the claimant’s favour) by Manager Joy Atotileto (black) and instead gave attention only to what certain white alleged witnesses said about the incident. Accordingly, the claimant’s case is that on grounds of his being black he was treated less advantageously than Mr Matthew Chandler and in particular that the process leading to his assignment being terminated was improperly conducted.[7]The respondents will apparently say that the reason for the termination of the assignment was not merely because of the above altercation but a further incident which occurred (which the claimant maintains was entirely fabricated) where he is alleged to have threatened Mr Matthew Chandler. However, the claimant carefully explained that that part of his claim was not based upon race discrimination. The employees who “conspired” to report this alleged event did so because they were friends with Mr Chandler rather than because of any race discrimination towards the claimant.[8]The dyslexia/disability claim was discussed in detail in the course of the hearing today. The claim form was extremely vague as to what detriment was alleged to have been suffered by the claimant as a result of his alleged condition of dyslexia. Indeed, he appeared to be alleging that the unfavourable treatment arising from his dyslexia was a failure by management to respond to his emails and/or getting the claimant to do the Manager’s work. However, in the Tribunal the claimant asserted that this was not his case - the disadvantage was his not being “crosstrained” for other types of work, as were his colleagues in January or February 2017. However, it was plain that not only was this not part of the pleaded claim 2 of 3 but that the claimant was engaged in a high degree of speculation in this regard. An email which he showed me in 2017 showed him alleging that he had not received cross-training because he was agency staff and not in full employment. Indeed quite candidly he accepted that he did not know why he was not crosstrained. He accepted that he had never asserted by email or other correspondence disadvantageous treatment in this regard on grounds of his disability. In all the circumstances it seemed to me that particularly in the absence of any formal application to amend the claim form, as well as the potential time problems in relation to amending this claim (although to be fair, while the claimant initially dated this event as January 2017 he then said it continued until the end of his engagement on the 1 February 2018) it would be unfair to the respondent to allow this claim to be listed as one of the issues in the case. This was a new claim and, moreover, it appeared to me to be highly speculative and inconsistent with the documents and existing pleaded claim. It is entirely a matter for the claimant whether at some or other stage he would, having formulated the point appropriately, seek to amend the claim form. However, there was no such amendment application before me and in the circumstances, given that the basis of the existing complaint of disability was disavowed by the Claimant, in my judgment it should be struck out. _________________________7/3/19_[1]The claimant was employed at all material times by Brook Street UK Ltd. He worked as an agency worker for the respondent from 16 July 2015. On 1 February 2018 his assignment with the respondent was terminated with effect on 2 February 2018. By a claim form presented on 30 April 2018, following a period of early conciliation from 17 March to 18 April 2018, he brings a complaint of direct discrimination because of race or colour.
The issues
[2]The issues were set out by Employment Judge Bloch QC at a preliminary hearing heard on 5 February 2019. The issues are as follows: - “Equality Act s.13 direct discrimination because of race or colour2.1 It is not in dispute that the claimant’s assignment to the Ministry of Justice was summarily terminated on 2 February 2018.2.2 Was that treatment “less favourable” ie did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (comparators in not materially different circumstances)? The claimant relies on the following comparator, Mr Matthew Chandler (white).2.3 If so, was this because of the claimant’s protected characteristic (namely being black). Remedy If the claimant succeeds in whole or in part the Tribunal will be concerned with issues of remedy and in particular if the claimant is awarded compensation and/or damages will decide how much should be awarded.”
The law
[3]As per the IDS Employment Law Handbook Discrimination at Work at 15.7 “An employer directly discriminates against a person if: It treats that person less favourably than it treats or would treat others, and The difference in treatment is because of a protected characteristic. Tribunals often deal with these two stages in turn… However, as Lord Nicholls commented in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL (a sex discrimination case), in some cases the “less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.”[4]Regarding the burden of proof, as per the IDS Handbook at 33.11 “Two stage approach. As succinctly put by Her Honour Judge Edey QC in Fennell v Foot Anstey LLP EAT 0290/15, “Although guidance as to how to approach the burden of proof has been provided by this and higher appellate courts, all judicial authority agrees that the wording of the statute remains the touchstone.”[5]Further, at paragraph 33.12: “The Court of Appeal explicitly endorsed guidelines previously set down by the EAT in Barton v Investec Henderson Crossthwaite Securities Ltd [2003] ICR 1205, EAT, albeit with some adjustments, and confirmed that they apply across all strands of discrimination. The guidelines can be summarised as follows: it is for the claimant to prove, on the balance of probabilities, facts from which the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. If the claimant does not prove such facts, the claim will fail. in deciding whether the claimant has proved such facts it is important to bear in mind that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In many cases the discrimination will not be intentional but merely based on the assumption that ‘he or she would not have fitted in’ the outcome at this stage will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal (see further Chapter34, ‘Proving discrimination’, under ‘Inferring discrimination’) the tribunal does not have to reach a definitive determination that such facts would lead it to conclude that there was discrimination – it merely has to decide what inferences could be drawn in considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts these inferences could include any that it is just and equitable to draw from an evasive or equivocal reply to a request for information (see Chapter 34, ‘Proving discrimination’, under ‘Ask and respond process’) inference may also be drawn from any failure to comply with a relevant Code of Practice (see Chapter 34, ‘Proving discrimination’, under ‘Inferring discrimination – breach of EHRC Codes of Practice when the claimant has proved facts from which inferences could be drawn that the respondent has treated the claimant less favourably on a protected ground, the burden of proof moves to the respondent it is then for the respondent to prove that it did not commit or, as the case may be, it is not to be treated as having committed that act to discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever on the protected ground not only must the respondent provide an explanation for the facts proved by the claimant, from which the inference could be drawn, but that the explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment since the respondent would generally be in possession of the facts necessary to provide an explanation, the tribunal would normal expect cogent evidence to discharge that burden – in particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or any Code of Practice”[6]Dealing with less favourable treatment, as per the IDS Handbook at 15.17 “The test posed by the legislation is an objective one – the fact that a claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment. … That said, the claimant’s perception of the effect of treatment upon him or her is likely to significantly influence the Tribunal’s conclusion as to whether, objectively, that treatment was less favourable.”[7]In addition, we have taken from the claimant’s opening note the following citation: - “Where there is an actual comparator, asking the less favourable treatment question may be the most direct route to the answer to both questions; but where there is none it will usually be better to focus on the reason why question than to get bogged down in the often arid and confusing task of “constructing a hypothetical comparator”.” Comparator[8]S.23 requires the comparator to be in not materially different circumstances.[9]Dealing with whether the less favourable treatment was because of the claimant’s race we have taken paragraph 20 of Mr Talalay’s opening note which states as follows: - “As to whether the less favourable treatment was because of the claimant’s race, this is not a “but for” test but instead requires the court to ascertain “what, consciously or unconsciously was [the] reason” for the less favourable treatment (Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065 at [29]). The Tribunal is not required to consider the motive of the person, but their reason for the less favourable treatment, which can be subconscious (Amnesty International v Ahmed [2009] ICR 1450 [33-39]).”[10]We have also taken account of the extract quoted by the claimant in his opening note from the case of Nagarajan v London Regional Transport 1999 ICR 877, HL as follows: - “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”[11]Lastly, and taken from paragraph 21 of Mr Talalay’s opening note: - “Finally, it is the reasons of the decision maker(s) in respect of the act complained of that is relevant for the Tribunal. It will not be sufficient to show that the decision maker was acting on the basis of tainted information on the part of someone else, and that would need to be pleaded as a separate act (CLFIS (UK) Ltd v Reynolds [2015] ICR 1010 at [45-6])”
The evidence
[12]We were provided with a bundle running to 265 pages.[13]In addition, we had witness statements and heard evidence from the following: The claimant Mr Michael Nuna, operations manager, Field House, at the relevant time. He took the decision to terminate the claimant’s assignment Ms Finola Hayes, cluster manager HMCTS Ms Joy Atotileto, member of the promulgation team for the respondent who was in the post room with the claimant on 1 February 2018
The facts
[14]The claimant was an agency worker employed by Brook Street UK Ltd. As from 16 July 2015 he was placed on assignment with the respondent.[15]As part of his assignment the claimant was subject to the Ministry of Justice Conduct Policy. This provides as follows: - “If you work for us under a contract you will also be expected to keep to this policy. This includes agency workers, consultants and contractors and interim staff. However, if your conduct falls below the standards we expect, we will deal with this under the terms of your contract under which you provide your services.”[16]As part of the conduct policy in the section dealing with standards of behaviour, the following is set out: - “You will not: Harass, victimise or bully others through your actions, language or behaviour (whether done deliberately or not). What is unacceptable behaviour? Examples of unacceptable behaviour Unacceptable behaviour may include: Unwanted contact such as verbal abuse or offensive gestures; Unwanted physical contact (including unnecessary touching, and physical threats or assaults);”[17]As might be expected the respondent had a Discipline Policy and Guidance. This provides as follows: - “Who does it apply to This policy applies to all permanent and fixed term employees except those in the NOMS business group. People at all levels of seniority and length of service are covered. It applies to everyone in the same manner. People working with MOJ under contract arrangements will also adhere to the conduct policy. This includes agency workers, consultants/contractors and interim staff. However, should their conduct fall below the required standards, the issues should be managed under the terms of the contracts under which their services are provided.”[18]It has been a matter of complaint by the claimant that he was not dealt with under the Discipline Policy and Guidance. The claimant has complained to us that that was not only due to a breach of the policy but a breach of the spirit of the policy. We find that the discipline policy did not apply to agency workers and so the respondent cannot be said to have been in breach of that policy as regards the claimant.[19]Nevertheless, the disciplinary policy makes plain that “Offensive, abusive or repeated unwanted behaviour falls into the category of serious misconduct whereas “physical violence or threatening behaviour falls into the category of gross misconduct”.[20]We have been provided with the induction handbook for Brook Street Temporary Employees on Assignment at the Crown Commercial Service. This represents the terms of contract under which agency workers such as the claimant were engaged. This provides as follows: - “Behaviour and conduct If your behaviour, conduct or attitude gives cause for concern, this could result in the immediate termination of your assignment. … Whilst on assignment you Shall not engage in any form of physical or verbal abuse, threatening behaviour, harassment, bullying or be otherwise uncivil to persons encountered in the course of the assignment with the client or Brook Street.”[21]The claimant describes his race as black Nigerian.[22]This case primarily concerns events on 1 February 2018. On that day Ms Atotileto had been asked to supervise the post and the claimant had been rostered to work in the post room.[23]It is clear that there was a disagreement between the claimant and Mr Matthew Chandler. Unfortunately, the claimant’s witness statement concerning how this incident began is in very general terms. He states: “The claimant was subjected to bullying, racist abuse and had foul and offensive language directed at him when he attempted to ask Mr Matt Chandler a question related to the office, while in the post room.”[24]Similarly, the claimant’s claim form is very brief on the details of this confrontation. He has pleaded: - “Matt called me a cunt and I asked him why he used such profane word on me and he looked at me strangely and said: Yes, you’re a cunt and what are you going to do about it – your time is up.”[25]The claimant made a contemporaneous complaint on 1 February 2018 at 17:26. Again this is singularly lacking in any detail as to how this event began. The complaint states as follows: - “I was verbally abused today by the support team manager – Matt. … I am forced against my will to stop working today because of an action that emanated from a manager that abused me verbally by calling me a cunt in the presence of a member of staff (Mrs Joy Atotileto)”[26]Perhaps the best account of how this incident began is contained in the notes of the grievance hearing heard by Brook Street on 20 February 2018. The claimant’s account of how this incident began is recorded as follows: - “I was put on the rota in the post room, it was the first time I have ever had to do this in my 2 years 7 months with the MoJ. I had to call each team in Field House, there were 5 or 6 of them and ask them to supply 1 or 2 team members to deal with the private post. This means post for individuals, judges, etc. There are normally between 6 or 12, actually 6 to 8. Matt Chandler was the first manager to attend the post room as his office is the nearest to the post room. Matt picked up the post and looked at me in a strange way, and said “I was unaware that you were in charge” before without warning calling me a “cunt”, I asked “Why are you calling me that?”, before he replied, “Yes you are, a cunt”. I asked Joy what I should do and she said, “Just leave it”.”[27]On 5 February 2018 Mr Chandler provided a written account of his recollection of the beginning of this incident. He states as follows: - “On Thursday morning I received a phone call from Steven requesting someone from the support team attend the post opening duties. Because I was covering Kris who was running late I thought I’d better go into the post room to explain to Joy (manager) that the support team don’t attend post opening duties but distribute the internal mail around the building that is given to us by whoever is the post room manager that day. I went into the post room where I saw Joy standing on the right on the room and Steven was sitting to the left of me. I explained to Joy that the support team do not do post opening duties but to give me the internal post and I will get someone to distribute the mail. As I was explaining this to Joy, Steven spoke in a loud aggressive voice which I found very intimidating, he said: “You do send someone into the post room” in an aggressive manner, I turned to look at him and replied, “No we don’t send anyone into the post room” (in a calm manner). I turned back to Joy and explained to her again saying “When you have the internal post ready give it to me so I can pass it on to one of the team to distribute.” I was then interrupted again by Steven in a very loud intimidating and aggressive manner saying, “Since when do you stop sending someone into the post room, you do send someone in”. That’s when I replied, “Don’t speak to me like I am some kind of a cunt”. Steven then shouted at me very aggressively, “What do you mean a cunt”. I felt very threatened by his manner so I decided to leave the post room, as I was walking out of the post room I replied to him loudly “Just don’t talk to me like I am some sort of cunt (I emphasised the I am)” “[28]The only other witness was Ms Atotileto. Her account was as follows: - “Whilst the claimant was calling the various teams to come for the post opening, Matthew Chandler walked into the post room and requested that when we were finished sorting his team be given the personal post. The claimant responded by asking why Matthew needed the personal post and Matthew replied that that was the order being made. The claimant replied by asking “who made such an order?!” adding that, as far as he was aware it was usually the supervisor who appointed individuals to do the personal post. There followed a heated exchange of words between them and in the process Matthew used the word cunt. There were further words exchanged and all I could hear was the claimant saying was “Did you just call me a cunt?” while pointing at himself. Matthew Chandler replied “Yes! I called you a cunt. What are you going to do?” I cannot, however, recall exactly what else was said between Matthew and the claimant. I tried to calm the situation by asking the claimant to keep quiet and for Matthew to leave. Other than the claimant, Matthew and me, there was no-one else in the post room when the argument began. The only other person who saw any of it was Isabel who came into the post room just as it was ending.”[29]It appears to us that there is a consistent thread in these accounts. The claimant was asking Mr Chandler to do something and Mr Chandler was reacting that he/his team do not to that and challenged the claimant as to his authority to tell him to do it. There was then a heated exchange of words. Mr Chandler suggests that he was referring to himself as a cunt. However, both the claimant and Ms Atotileto refer to the claimant at some stage asking if Mr Chandler had called him a cunt and Mr Chandler responding words to the effect “Yes you are a cunt what are you going to do about it”. We find that that probably happened.[30]Ms Atotileto tried to calm the situation by asking the claimant to calm down and Mr Chandler to leave. Mr Chandler left the post room. Isabel Guymer entered as the situation was ending. She was a colleague. She later told Mr Nuna that she had not seen or heard anything. Possibly she just did not want to get involved.[31]Normally, the post room door would be shut. However, after Mr Chandler went in Ms Atotileto told us it was left ajar. Further, after the incident Ms Atotileto told us that she asked the claimant to sit at the far end of the post room so that the claimant could not see Mr Chandler. Again, that suggests the door was open. We find that during and after the incident in the post room. which has been referred to as the first incident, the door was open. The relevance is that people in the adjacent office could have heard and partially seen what went on during the altercation.[32]The post room has a signing in and out book. The timings are clearly approximate. It indicates that the claimant went into the post room at 10.15 and logged himself out at 11.35. Ms Atotileto also went in at 10.15 and logged herself out at 11.45. Isabel is recorded as entering, along with a number of others, at 10.55. We were told that short absences from the post room were not recorded in the log in book.[33]At some stage after incident 1, it is the respondent’s case that a further incident took place between the claimant and Mr Chandler. Mr Michael Nuna said that Mr M Fitzgerald came and reported the incident to him while he was having a meeting with Andrea Gardener. His evidence was that Mr Fitzgerald told him of a threat made by the claimant to Mr Chandler. Mr Nuna asked if there were any witnesses and was told Ms Atotileto, Mr George Osborn and Mr Nicholas Bird.[34]Due to the claimant’s line manager and delivery manager not being in the office, (Ms Ola Odunlami and Mr Paul Sagoe) Mr Nuna took it upon himself to investigate.[35]Mr Nuna went and received oral accounts of the incidents from Ms Atotileto, Mr Fitzgerald, Mr Osborn, Mr Bird and Isabel about what had happened. As recorded, Isabel said she had not seen anything. Each was seen on a one to one basis. On the following day all of them were asked to provide written accounts of their recollection of the incident.[36]Mr George Osborn described the following: - “Shortly after Joy and Steven entered the fourth-floor post room, Matthew went into the post room, I didn’t hear exact words at first regarding what he said. When he left the post room I heard a heated exchange between Matt and Steven not exactly word for word but I can recall the following. I heard Matt say, “You don’t have to talk to me like that, like I am a cunt”. I then heard Stephen reply saying something muffled then I did hear “You are a cunt”. Then Matt replied with “No, you are a cunt”. Shortly after Mark closed the post room door to diffuse the situation and nothing else was said and Steven left the post room and walked away from the section. Them approximately 10 minutes after, Steven returned to our section and was standing near the copy room and said very clearly and aggressively to Matt “If you think you are man enough and have enough grace or guts then let’s go outside and sort this out now” in which Matt didn’t react. Then shortly after Mark came to your office and reported it rightfully.”[37]Mr Fitzgerald put it as follows: - “When inside the post room Matthew explained to Joy that his team did not do post opening, but they do collect the personal post and distribute it around the building. In the meantime [the claimant] got involved in the conversation and a few words were exchanged between himself and M Chandler, which resulted in M Chandler saying to [the claimant] “Do not speak to me like I am a cunt.” As Mr Chandler left the post room words were still being exchanged between the two men, with vulgar and offensive language being used. At this point I, Mark Fitzgerald got up and closed the post room door and signalled with my hand to both Stephen and Matthew to calm it down. I presumed this had resolved the situation, but unfortunately it had not. A few minutes later Stephen came out of the post room and walked down the office. On his return back up the office [the claimant] looked directly at Mr Chandler, said in a very hostile and aggressive manner; IF YOU HAVE THE GUTS AND THE GRACE THEN LET’S FINISH THIS OUTSIDE.”[38]Mr Nicholas Bird put it as follows: - “I was not there when the initial argument started. But as I returned to my desk I heard a few exchanges between the two. From what I could work out Steven had asked Matt with authority to do something he was usually not required to do. The C word was used, but I can not recall exactly how this exchange between the two. I think it may have originally started as Matt saying, “Treat me like a C”, however misheard from the post room as Matt calling him a C. But this all happened so fast and I was shocked it was just happening, so I don’t feel reliable on the exact exchange. Steven left the post room shortly after and when he returned he was still visibly shaken by the altercation and said something along the lines “We are both adults, if you don’t have the grace, we can take this outside” (not exact words, but close).”[39]Mr Chandler put it as follows: - “I carried on working but felt very uneasy. Approximately five minutes later Steven came out of the post room and walked up the office. I could see over my computer, he was walking slowly up the office, looking back over his shoulder staring at me with a very intimidating look. He went out the main door and approximately 5 minutes later he came back and was walking towards the post room. He was staring at me, so I looked down at my computer, again I was feeling very intimidated. When Steven got to the end of the section by the post room door he said in a very intimidating and aggressive manner, “If you think you are man enough and have the guts and grace, let’s go outside and sort this out now”.[40]Ms Atotileto was interviewed and described the exchange within the post room but was not a witness to the event that happened outside it.[41]When Mr Nuna spoke to Mr Chandler, Mr Chandler admitted using inappropriate language and was told he would be subjected to the disciplinary process.[42]Mr Nuna next spoke to Ms Ola Odunlami She told him she was not surprised in relation to Steven’s tone and manner as she had been observing this for some time.[43]Mr Nuna then asked the claimant to come into his office. The claimant denied that the second incident had occurred at all.[44]The claimant’s case is that incident 2 has been fabricated. He points to timings and the following evidence:44.1 All the witnesses say that the second incident happened between a few and 10 minutes after the first incident. Given that Isabel is logged in to the post room at 10.55 that suggests that the first incident was around that time. The claimant says he never left the post room until 11.35, 40 minutes later, and, consequently, says that the second incident cannot have happened.44.2 Secondly, Ms Atotileto has given evidence that the claimant did not leave the post room until 11.35, which supports the claimant’s case. She also gave evidence that Mr Nuna came into the post room and asked her to come to his office. She said that this was at a time when the claimant was still in the post room. This poses the question that if the claimant had not left the post room and incident 2 had not happened, why was Mr Nuna investigating incident 2?[45]The claimant suggests that Mr Nuna must have been in what can only be regarded as a conspiracy to fabricate the case against the claimant that he threatened Mr Chandler. The concentration on timings and whether the claimant left the post room temporarily has only really occurred during he course of this hearing, some three and a half years after the event. We found that Ms Atotileto was a straightforward witness who was credible and endeavouring to assist the tribunal. However, in one respect, we find that she probably mis-recalled what happened. This was that the claimant temporarily left the post room before 11.35 and that is when incident 2 took place. We have considered whether incident 2 has been fabricated and find that it probably took place as described by the witnesses. While Mr Chandler’s statement could be self-serving and seeking to avoid his responsibility for his actions, we consider it to be inherently improbable that three other witnesses would invent details, provide broadly consistent accounts and collude with management, in the shape of Mr Nuna, to remove the claimant from his assignment. We do not believe the claimant when he says incident 2 did not take place because we prefer the accounts provided in the contemporaneous documentation and from the respondent’s witnesses.[46]Later, Mr Nuna consulted Brook Street. He spoke to a lady called Rita. He explained to her what had occurred and due to the length of time Steven had worked at this office he wanted to know what policy he would have to go through. Rita said she would get back to him. Rita called him back and she explained to him that due to the matter being gross misconduct, Mr Nuna “had the right to terminate the assignment and the disciplinary side of things would be done by Brook Street due to them being his employer.”[47]Thereafter Mr Nuna terminated the claimant’s assignment with immediate effect.[48]Mr Chandler was later disciplined under the Fast Track Disciplinary Process for inappropriate language, found to have committed serious misconduct and was issued with a first written warning for a period of six months. Comparator[49]The claimant relies on Mr Chandler. We find that Mr Chandler is not an appropriate comparator for three reasons:49.1 Firstly, Mr Chandler was an employee and not an agency worker. Mr Chandler was subject to the disciplinary policy and the claimant was not.49.2 Secondly, Mr Chandler accepted at least some misconduct. The claimant denied everything.49.3 Thirdly, Mr Chandler was only accused of serious misconduct whereas the claimant was accused of gross misconduct.[50]We find that there is a material difference in the circumstances between the claimant and Mr Chandler and that he is not an appropriate comparator.[51]Accordingly, we have approached this case on the basis of a hypothetical comparator, namely a white agency worker accused of gross misconduct, namely threatening another worker.
Conclusions
[52]We find that the claimant did threaten Mr Chandler in incident 2.[53]We find that Mr Nuna conducted a reasonable investigation, genuinely thought that the claimant had threatened Mr Chandler, concluded that the claimant’s conduct gave cause for concern and terminated the claimant’s assignment forthwith.[54]We have considered whether Mr Nuna’s actions were motivated on the grounds of the claimant’s race. In particular, the claimant has highlighted the following to us in his witness statement. “I would like to highlight that many studies have shown that people (black people included) still perceive a black person as more threatening if they do not understand the context. I feel that I have been deemed to be emotional since I stammer sometimes (which was also referred to by Mr Michael Nuna during his email to Brook Street). I feel that Mr Nuna’s pre-conceived notion about me resulted in my being treated less favourably.”[55]However, we have concluded that this is not a case where Mr Nuna could have made a misconception of aggression on the claimant’s part and that sub conscious bias may have been in play. This is because the nature of the words used by the claimant and the context made clear that it was an overt threat of violence.[56]We find that the claimant was not less favourably treated than a hypothetical comparator. We find that the hypothetical comparator would have been treated in exactly the same way. Indeed, Ms Hayes gave us evidence which we accept that across her cluster: “a number of agency assignments have been ended following inappropriate behaviour, many of which would be deemed less serious than the incident involving the claimant.”[57]Accordingly, we find that the claimant has not proved a prima facie case of less favourable treatment requiring an explanation from the respondent.[58]For the above reasons the claimant’s claim is dismissed.