A Rai and S Gurung v Bupa Care Homes (ANS) Ltd: 2303135/2023 and 2303137/2023
EMPLOYMENT TRIBUNALS
Case No 2303135/2023, 2303137/2023
Between
A Rai and S GurungClaimantMr J Cook, CounselRespondent
Before
Employment Judge McLarenMr O Lawrence (instructed by Counsel) for claimantMr J Cook (instructed by Counsel) for respondentDate 2 April 2025
JUDGMENT
The unanimous judgment of the Tribunal for both claimants is as follows:-[1]The complaint of direct race discrimination is not well-founded and is dismissed.[2]The complaint of victimisation is not well-founded and is dismissed.[3]The complaint of unfair dismissal is not well-founded. The claimants were fairly dismissed.
REASONS
[1]The claimants worked for the respondent which operates care homes. Ms Rai was employed as a Housekeeping Assistant and Ms Gurung as a Healthcare Assistant but at the relevant time both were working as carers on the night shift, providing care for elderly residents primarily with dementia.[2]They were dismissed on 10 February 2023. This was on grounds of conduct and followed an incident on 8 December 2022 when an overnight inspection took place at the care home where they worked. Two managers attended and decided that the claimants and several others were asleep or preparing to sleep. The claimants were dismissed. It appears that the majority of staff who were dismissed were Nepalese. On that basis both bring claims of unfair dismissal and race discrimination.[3]Both claimants also bring claims of victimisation. The respondent referred the claimants to the disclosure and barring service on 25 September 2023. The claimants say this was as a result of their having brought employment tribunal proceedings. As this was brought as an amendment to the claim the relevant date on which this complaint is deemed to be presented as 1 February 2024. The respondent states that they have a statutory duty to make referrals to the DBS and its doing so was not because the claimant had done a protected act but in compliance of its statutory duty.[4]The case had been listed for five days to include remedy. Unfortunately, there was some delay in starting the hearing as a Nepalese interpreter could not be found immediately. In discussion with the parties, bearing in mind the delay in starting together with the number of witnesses, we concluded that the hearing would be limited to liability only. It would address any issue of a “Polkey “ reduction and contributory conduct.[5]We heard evidence from both of the claimants. For the respondent’s we heard evidence from Angela Thomas, Resident Experience Manager at the home were the claimants worked who investigated the allegations, Duana MacDermot, Clinical Duty Manager at the respondent who carried out the night visit, Julie Taylor, a Care Home Manager for the respondent who took the decision to dismiss, Phidelima Umeyor, Regional Director for the respondent who heard the appeal, Wayne Siegert, a Trainee Nurse Associate who took part in the night visit and Zoe Romani Assistant Speak Up Officer. We were also provided with a bundle of 737 pages.[6]In reaching our decision we took account of all the pages in the bundle to which we were referred, the witness evidence, and the parties’ helpful written submissions and expanded oral submissions. Issues[7]The issues had been agreed between the parties. These were discussed and it was agreed that some small adjustments would be made to clarify the out-of-time point. It would also expand to points in relation to remedy.[8]The amended agreed issues are therefore as follows. Unfair Dismissal Reason for dismissal[1]What was the reason or principal reason for the Claimant’s dismissal? Was it a potentially fair reason? Conduct issues[2]Did the Respondent act reasonably in the circumstances, including its size and administrative resources, in treating the alleged misconduct as a sufficient reason for the Claimant’s dismissal?[3]In particular, did the Respondent form:3.1 a genuine belief that the Claimant was guilty of the misconduct alleged3.2 on reasonable grounds3.3 after such investigation as was reasonable? (BHS v Burchell [1978] IRLR 379)[4]Was dismissal a sanction within the range of reasonable responses open to the Respondent?[5]Did the Respondent follow a fair procedure? Unfair dismissal—Remedy Compensation What basic award should be made to the Claimant?[7]Are there any grounds on which the basic award should be reduced, e.g. contributory fault? If so, by how much?[8]What compensatory award should be made to the Claimant, taking into account what is just and equitable in all the circumstances having regard to the loss sustained by the Claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer? In particular:8.1 what past losses has the Claimant sustained as a result of her dismissal?8.2 what future losses is the Claimant likely to sustain as a result of her dismissal?8.3 what amount should be awarded for loss of statutory rights?[9]If compensation is awarded, should any award to the Claimant be reduced in accordance with Polkey?[10]Are there any grounds on which the compensatory award should be reduced, e.g. contributory fault? If so, by how much? Direct discrimination contrary to section 13 of the Equality Act 2010[11]Allegation 12.1 is out of time. Does it form a continuing act with any allegation of discrimination that is in time? If not, would it be just and equitable to extend time?[12]Did the Respondent treat the Claimant less favourably than it treats or would have treated others? The Claimant alleges the following:12.1 The Respondent’s decision to suspend only the Nepalese employees pending an investigation in relation to the allegations was due to their race as the other two staff members involved, who were of British and African origin, continued their scheduled shifts.12.2 The Respondent’s decision to investigate only the Nepalese employees from the night of the alleged incident was due to their race.12.3 The Respondent’s decision to instigate formal decision process to only the Nepalese employees from the night of the alleged incident was due to their race.12.4 The Respondent prioritising senior members of staff’s account (who had prejudice towards Nepalese people) over the Nepalese members of staff’s account.12.5 The Respondent’s decision to dismiss only the Nepalese employees from the night of the alleged incident was due to their race.[13]For the avoidance of doubt, the Respondent's position is that not only Nepalese employees were disciplined, dismissed and referred to the DBS and that the Claimant's case is based on a misunderstanding of the factual position. Victimisation contrary to section 27 of the Equality Act 2010[14]The detriment complained of took place on 25 September 2023. Any claim brought after 24 December 2023 in respect of that detriment is out of time. The application to amend was allowed on 1 February 2024. Is it just and equitable to extend time to enable the claimant to pursue this complaint?[15]The Respondent accepts that the presentation of Employment Tribunal claims by Mrs Rai and Mrs Gurung, containing claims under the Equality Act 2010, on 4 July 2023, were protected acts for the purposes of s.27(2) Equality Act 2010?[16]Did the Respondent subject the Claimant to a detriment because the Claimant had done a protected act or the Respondent believed that the Claimant had done, or may do, a protected act? (EqA 2010, s 27(1)) The Claimant relies on the following: - The Respondent has submitted a case against the Claimant to the Disclosure and Barring Service (“DBS”). This means that should DBS decide to bar the Claimant using the Respondent’s reasons to dismiss the Claimant, she will no longer be able to work in the healthcare industry, Equality Act 2010 claims—remedy[17]What declarations, if any, as to the rights of the Claimant and Respondent would be appropriate?[18]What compensation, if any, should the Respondent be ordered to pay to the Claimant? In particular:18.1 Absent any discrimination, what are the chances that the Claimant would have been dismissed (Chagger)?18.2 what financial losses has the Claimant sustained as a result of the dismissal?18.3 has the Claimant made reasonable attempts to mitigate her losses?18.4 what injury to feelings, if any, has the Claimant sustained?18.5 what personal injury, if any, has the Claimant sustained?18.6 did the Respondent unreasonably fail to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures? If so, would it be just and equitable to increase the award of compensation? If so, by what percentage (up to a maximum of 25%)?18.7 did the Claimant unreasonably fail to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures? If so, would it be just and equitable to decrease the award of compensation? If so, by what percentage (up to a maximum of 25%)?18.8 what interest, if any, should be added to the compensatory award?18.9 does the compensatory award need to be grossed up to take into account the impact of taxation?[19]What recommendations, if any, would be appropriate? Finding of facts Credibility 9. In making findings of fact we found the evidence of both claimants to be contradictory and generally speaking, where there was a conflict between their evidence and that of respondents’ witness we preferred the evidence of the respondents. We reached this view of the claimants’ credibility for a number of reasons. 10. Their witness statements contained large amounts of duplicated material. When asked about this, Mrs Rai suggested that this was complete chance. On balance of probability that cannot be the case. Where witness statements are word for word identical, we find that this undermines the credibility of each witness giving that evidence. 11. We also noted that Mrs Rai introduced new matters in oral evidence which she did not mention at any stage during the disciplinary process or in her witness statement. Her explanation as to what she was doing on the night of the incident which led to her dismissal evolved over time. There was a clear contradiction to what she told the appeal meeting and what she said in her witness statement. 12. Mrs Gurung’s account of what she was doing at the time of the incident also varied throughout her witness statement and the notes of the meeting. We noted that when Mrs Gurung was asked about her allegation that in April 2021 concern had been issued only to Nepalese colleagues. In her answer, when she was shown evidence of this was not the case, she made reference to yet a further unnamed white nurse which had not been brought up before. We also note her evidence that PIR sensors were routinely turned off and yet she said, other than the evening of the incident, she always checked them. That seems a pointless exercise and undermines her credibility. 13. The respondents’ witnesses were generally consistent in their evidence. With the exception of Mrs Taylor, whose evidence is addressed below, their evidence was consistent with the findings they made as reflected in contemporaneous documentation. Where they could not recall a detail, given the passage of time, they made that clear. Mrs Taylor’s evidence was less consistent. In answer to cross-examination questions she accepted that she had made some mistakes. However, we found that she was giving honest answers based on her best recollection and therefore again, found her evidence to be credible. Policies 14. Both claimants were employed at a particular care home, Warren Lodge where they worked as night carers. The Home accommodates residents seeking residential nursing dementia care on a permanent basis or for short stays. All residents are vulnerable people. The home has 64 beds, spread over 2 floors and specialises in dementia care. 15. Mrs Rai was taken to page 223 dated 1.12.15 and Mrs Gurung was taken to page 477 dated 20.5.15 and both confirmed they had signed to say they had received a copy of a number of policies which included the night working policy and had signed to agree to abide by this policy. Both accepted that they were aware of the policy which made it clear that one could be dismissed for sleeping on duty and in that case, there could be a referral to the Secretary of State for consideration to be placed on the Protection of Vulnerable Adult List. 16. Mrs Gurung also accepted that on 7 September 2020 she was made aware that supplementary charts must be completed at the time of care and kept in rooms not in a corridor. During cross examination she accepted that she understood that forms are to be completed by the carer giving that care. There must be no sleeping at any time 24 hours a day by staff. She accepted she was aware that staff must be alert at all times. Night staff must position themselves throughout the floor to ensure they are aware of any residents who are up and about. 17. Mrs Gurung accepted that on 28 April 2021 she was sent a letter of concern which would stay on her file. At that point she was found to have put herself in a situation that left her vulnerable to falling asleep which was set out as a disciplinary matter with potential dismissal outcomes. The letter made it clear this was not acceptable. 18. She also confirmed that on 2 May 2022 she understood the position on safety checks. This included whether any required sensor equipment was in place, whether the resident had a drink, if they were comfortable and whether clothing or bedding were clean and dry. She was also aware that staff must consider whether the resident had a meaningful occupation of some kind or company. She also accepted that she knew that staff were to record all care at the time it is given. 19. On 2 June 2022 Mrs Gurung was issued a further supervision document which emphasised that safety checks must include whether the residents are a safe position, whether any required sensor equipment was in place, whether they had a drink. It also emphasised all care must be recorded at the time it was given.[20]Mrs Rai was taken to a note of a one-to-one supervision dated 25 October 2019. That set out that staff the lounge were not sitting in a sleeping position with feet up or to be using sheets as blankets. Staff when writing notes were not to sit altogether and overnight one carer was to sit in one corridor, one in the lounge area and one in the other corridor. Staff were reminded they were not take their breaks at the same time. Mrs Rai said that she had not signed this document, nor was it issued to her.[21]She was taken to a further one-to-one supervision dated 1 November 2019. Among other points this specifies that supplementary charts are to be fully completed at the time of care, there is to be no sleeping at any time 24-hour day by any staff, and night staff should spread themselves throughout the floor.[22]On 4 August 2022 there is a further supervision note. Mrs Rai is reminded that she must offer fluids residents overnight. Again she was reminded of the no sleeping policy, and she was told that staff are to be wakeful and ready to respond.[23]While Mrs Rai disputed whether she had signed or seen 25 October document she confirmed in answer to cross examination questions that she was aware that staff were not to sleep on duty. She was aware that the forms were to be completed at the time care was given. Mrs Rai also confirmed that she knew that the form must be completed by the person providing the care as well as it being done at the time the care was given. She was also aware that staff were to be spread out and not all be in one place and that rest breaks were not to be taken together.[24]On the balance of probabilities we also find that she was aware of the terms of the document of 25 October. There is no reason why the respondent would not have issued this as the document suggests. Mrs Rai did not set out in her witness statement or at any time during the disciplinary procedure that she did not receive this document at the time. Further, the notice was signed by Ms Gilbert who was the nurse assigned to the night shift. Mrs Rai accepted that the lady with the same name as her worked day shifts and therefore it in our view that it is more likely that this relates to a day shift worker. Mrs Rai did not dispute that she had received the supervision of 4 August 2022.[25]We find that both claimants had the respondent’s night work policy communicated to them. Both understood that they were not to sleep on the job. While the night work policy does not reference preparing to sleep. We find that both claimants had been told via supervisions (and in Mrs Gurung’s case via a formal note of concern) that they could not put themselves in a position where they might fall asleep, expressly they must not sit in a sleeping position with their feet up and with a sheet across them. We find that they were aware that preparing to sleep or putting themselves in position there would have the possibility of falling asleep were also disciplinary matters and potential dismissal.[26]We accept the respondent’s evidence that putting yourself in a position where you could fall asleep and not being wakeful was extremely dangerous. It potentially put at risk the health and well-being of the elderly vulnerable residents in the respondent’s care. We accept that it was taken extremely seriously and there was little difference in the respondent’s mind between being asleep and putting yourself in a position to sleep and that was known to the claimants.[27]We find that both of the claimants knew that they were to be wakeful. not be preparing to sleep or put themselves in a position where they could fall asleep and be ready to respond at all times during their shift. We find that both claimants also understood that staff were not to sit together during the shift but must be spread out across the floor. We also find they both understood that carers were not take breaks together and the paperwork had to be completed at the time care was given. It was not acceptable to complete the care records at a later date.[28]The claimants have always accepted that they were sitting in the lounge together during a break. They also volunteered that they did not complete care records at the time care was given. They accepted that they shared residents’ records out between them and that the person giving the care was not necessarily the person who completed the record of that care. Instead they accepted their colleague’s information as to what had been done and at what time. We find that the matters they admitted are in clear breach of the respondent’s policy and procedure and the claimants were fully aware of that. Events of the 7/8 December 2022[29]It is common ground that both claimants were on night shift on the 7/8 December 2022. Both individuals stated that they had completed their usual rounds of personal care and necessary checks of the residents allocated their rota and sat down in the lounge of the ground floor to rest. In their evidence to this tribunal both claimants gave an account of what they said happened at around 3 a.m.[30]Mrs Rai’s position to this tribunal is that she was sitting in an armchair drinking tea. She was sitting on a sheet because the chairs were “smelly”. It was noted that during the appeal she said that she was sitting with her eyes closed. When this inconsistency was put to her she confirmed that her witness statement was correct, and she was sitting on a sheet in an armchair drinking tea.[31]Ms Gurung stated that she was on her mobile phone watching Netflix. She had her reading glasses on and was generally doing her coursework for her NVQ although at the exact moment of the inspection she was googling the equality and diversity policy. She had dimmed the light on her mobile phone. Mrs Rai said that she was able to see Mrs Gurung and confirm that she was not asleep. Mrs Gurung was unable to confirm whether her colleagues were awake or asleep.[32]Both say that in accordance with usual practice the main lights were off to create a calming atmosphere for residents, but a side lamp was on. Both said that this was to allow the residents to wind down. It was their practice during their shifts to ensure that area was not entirely lit up as that tricks the residents into thinking it’s daytime. Both claimants believe that management were aware of this practice, and they had not been told it was incorrect. Mrs Gurung accepted that it would be very dangerous if the area was in darkness as the residents could fall.[33]Mrs Rai believe that there were four residents in the lounge, Mrs Gurung thinks that there were three. On her account only one was awake and was standing up. This individual was leaning on a radiator. Both claimants accepted that no one was assisting or comforting this resident.[34]Mrs Gurung accepted that she did not check whether the sensor system which is in place in the rooms of residents who are at high risk of falls was on or not.[35]Both claimants accepted that they had the residents’ files in the lounge area with them. It is their practice to divide the files up between the group and to fill in the record in the central area. They also agreed that while carers were responsible for particular residents and should complete their hourly checks themselves, if for example they provided help to another resident then they would simply tell the lead carer that and the lead carer would note this. Mrs Gurung said that she had her resident files next to her on a side table and that they remained there and were not removed by management until the end of her shift after 8 a.m. the following day. As far as providing fluid and updating the fluid records of residents is concerned, they do not wake residents up who are asleep.[36]At about 3.05 in the morning two managers Miss Macdermot and Mr Siegert, arrived to carry out an unannounced night check. Neither claimant thought much of this as this was usual practice and they carried on with their shift.[37]The respondent’s evidence is very different. On 15 November Mr Siegert sent an email to Miss Macdermot stating that he had been told by a colleague that the night staff were all asleep between 12 to 5 and finished assisting residents at 10 PM. They did not do hourly checks and falsified documentation.[38]Miss Macdermot explained that once this had been brought to her attention, she discussed it with other managers and decided that an unannounced night visit would take place. Mrs Gurung accepted that this was why the night visit took place. She been unaware of it at the time but accepted that this was the respondent’s reason i.e there had been in effect a complaint about sleeping on night duty.[39]Miss Macdermot, accompanied by Mr Siegert, conducted an unannounced visit on the night of 7 December and a second one on the night of 8 December. She did not accept that, because the question of sleeping during the night had been raised which is why she was carrying out the unannounced visit that she was predisposed to discover staff asleep. She accepted that it was a possibility but not an expectation. We accept her evidence on this point.[40]Miss Macdermot said that when she arrived at the home at around 3 a.m. it was all in the dark. All the lights were switched off in the corridors. This was not in accordance with practice which required light throughout the facility to be illuminated to ensure clear visibility. That is particularly important in the corridors because it is a known matter that in this particular home residents are active throughout the night.[41]She and her colleague made their way towards the lounge as that is an obvious starting place as a communal area. She opened the door and discovered that there was no light in the room at all. She had to find the light switch behind the door and therefore was confident that there was no light in the room to help her do this. She was asked whether not there were lamps and confirmed that there were none. She stated that there were no side lamps in the communal areas in this particular care home at that time. This was later confirmed by Mrs Thomas who was asked the same question. She explained the reason for this is that the residents can be aggressive and threw things and therefore movable objects were all removed.[42]Having switched on the light it was her evidence that there were three residents in the room. While the plan which she provided shows those residents in the middle of the room that was not accurate. They were about the room and were not impeding her view of any of the carers.[43]To her immediate left she saw one carer who was obviously asleep. The claimants were at the far side of the room, but Miss MacDermot said that she could see them. She could see that Mrs Rai’s eyes were shut. Mrs Gurung had her head turned away from her and therefore she could not observe whether her eyes were open or shut.[44]Once the lights were on, she and her colleague attempted to rouse the sleeping staff. Even when the lights were on there was no reaction; no one stood up, greeted them or explained that they were taking a short break. Miss MacDermot noted that in particular Mrs Rai took some time to wake up. She formed the view that both Mrs Rai and Mrs Gurung were asleep because both took time to respond to the lights being put on and the request to wake up This was her view although she accepted that she could not see whether not Mrs Gurung’s eyes were shut or not because her head was turned away.[45]She observed that all three of the carers had fashioned makeshift beds by pushing two chairs together. In her original interview Miss MacDermot had described the carers as being enveloped in blankets with their heads resting on pillows. In answer to cross-examination questions she confirmed that this was in fact a mixture of sheets, a jacket and coat and one person had a blanket. She was specific that she remembered that the claimants also had pillows. She believed this indicated they had both settled into a deep sleep.[46]Miss Macdermot and her colleagues then made their way upstairs where they found a similar scene in the cinema room. They found two care assistants fast asleep with the lights switched off.[47]Miss Macdermot and her colleague then went downstairs to the nurse’s station where they found the nurse in charge, Ms Gillett, working in an office with the door shut. When she was told that they had found carers asleep on duty she replied, “oh again” and did not seem surprised but carried on working.[48]Miss Macdermot and a colleague then went to check on all the residents and look at their daily notes. These notes were found in the lounge rather than the resident’s room. Although it was only 3:05 a.m., it was noted that daily notes had already been filled out up to 7:15 a.m. This suggested that the required checks had not been carried out as documented. There were also inconsistencies in the recorded times. Mrs Rai was documented as having performed checks in both room 7 and room 16 simultaneously. The logs also contained pre-populated time entries extending up 7.15 a.m. The records of rooms 22 and 28 were incomplete.[49]Miss MacDermot and her colleague then inspected rooms, and they found an agency carer asleep on the floor of a resident’s room. They found that some resident’s rooms had their passive infrared sensors switched off which are integral to their safety and security The residents in the first floor were still wearing their day clothes, and some were showing signs of obvious neglect.[50]Miss Macdermot carried out a repeat visit to the same care home the following night accompanied by a different colleague, Ms John the home manager. On that occasion two other carers were found asleep and there were further examples of pre-completed notes. Over the course of the two nights it is Miss Macdermot’s evidence that seven employees were asleep, five Nepalese, one British and one West African. All those who were found asleep were suspended for that and for what Miss Macdermot felt was severe neglect of residents.[51]Miss Macdermot disputes the account later given by Mrs Gurung that she was awake and watching Netflix at the time of the visit or that Ms Rai was sitting up drinking tea. Miss MacDermot accepted that on the first visit the neglect on the first floor was worse than that on the ground floor. She was adamant, however, that the issue with records applied to those for both floors.[52]Miss MacDermot was a credible witness. Her account was consistent with the notes she took of her inspection, throughout her interviews, in her witness statement and in cross-examination. We have found that she was not predisposed to find the claimants asleep. While the claimants give a different account, we find that they are less credible witnesses for the reasons we have summarised above. On the balance of probabilities we accept Miss MacDermot’s account as true and therefore find that she did see the home in darkness, there were no lights in the lounge, there were no lamps, there were four residents in the lounge one of whom was unattended and standing by the radiator and both claimants were asleep with pillows and other coverings. The suspension and investigation[53]The following day, 9 December 2022, both of the claimants were then suspended and told not to discuss this because the matter was being investigated. The letter, which is headed precautionary suspension from duty, set out that two allegations of gross misconduct being investigated. Those were during the night visit on 8 December at approximately 3 a.m they were found sleeping the dining room which is not in line with the night working policy. Secondly, during the night visit several residents’ night checks were not completed as per resident’s individual care plans and night checks had been falsified.[54]The investigation was carried out by Angela Thomas, Resident Experience Manager at Warren Lodge care home. It is accepted that Mrs Thomas is Mr Siegert’s aunt. Mrs Thomas did not therefore interview him but was provided with a note of the interview which was carried out by somebody else. It was put to Mrs Thomas that she was likely to accept the evidence of her nephew where there was a conflict between that and the evidence of the claimants. She did not accept this and said in any event she considered the evidence of Miss MacDermot and the documentary evidence in considering the respondent’s position.[55]While we accept that it is likely that an individual would be predisposed to believe a family member, we find that Mrs Thomas took sufficient steps by having her nephew interviewed by another person and considering the evidence of Miss MacDermot as the lead account, supported by the documentary evidence, to avoid any bias. This family relationship did not mean that the investigation was fundamentally flawed and unfair.[56]Mrs Thomas interviewed each claimant separately as part of an investigation which took place on 28 December 2022. As part of this investigation Mrs Thomas interviewed Miss Macdermot, Mr Siegert (via a colleague), Ms Gillett and the claimants. Mrs Thomas also reviewed a number of policies. These included the night working policy, the BUPA care services working guide UK of 2019 and the BUPA code and values. Where it existed, she also took into account the notes of one-to-one supervision forms and, for Mrs Gurung, the formal note of concern. Mrs Thomas wrote separate reports for each of the claimants. Findings for Mrs Rai[57]From her interview with Mrs Rai and her reading of the documentation Mrs Thomas concluded that the first allegation of sleeping on duty should move towards a disciplinary hearing. She reached this decision having considered all of the witness statements and the relevant policies. She accepted that Mrs Rai denied she was sleeping but she did agree in the investigation that she had a sheet on the chair in the lounge and that she was resting. There was no clear reason why the lights were out and the claimant was not able to provide the name of any manager who had agreed that light in the communal area should be off. Mrs Thomas accepted the evidence of Miss Macdermot and Mr Siegert that the lights were off in the lounge, and they had to call twice before Mrs Rai woke up. She also took into account the fact that Mrs Rai had three supervisions on a file calling out no sleeping on duty, one of which mentioned not using sheets. She therefore recommended that this allegation went to a[58]It was put to Mrs Thomas that her report in fact concluded that there was evidence of an intention to sleep and that was why she recommend the allegation should move forward a disciplinary hearing rather the allegation she was investigating was that Mrs Rai was found to be sleeping. She confirmed that as she was not present, she could not say definitely whether Mrs Rai was or was not sleeping. She had to weigh up the possibility and she felt it was not likely that she was awake. She also accepted that if staff are having a break they can relax. That is not a breach of the night working policy. However staff are not allowed to take breaks together. Mrs Rai had also been warned that she was to be alert at all times, and it was not therefore appropriate to put her feet up in a dark room as that made it likely she would fall asleep.[59]While we note the discrepancy between the allegation and Mrs Thomas’s recommendation, we find that her report reflects sufficient concerns for it to move to a disciplinary hearing. Mrs Thomas was not making the decision but merely confirming whether there was sufficient concern for matters to move to the next stage.[60]Mrs Thomas agreed that the second allegation has two parts to it, firstly that night checks were not completed and secondly, that night checks had been falsified. We note that in the interview between Miss MacDermot and Mrs Thomas, Miss MacDermot says that she only found evidence of pre-population in the documents that she took from the first floor. In her evidence she told us it related to both floors. In any event Mrs Thomas went through documentation taken from the ground floor and reached the conclusion that pre-population and falsification had happened on the ground floor as well as set out below.[61]Various records were discussed at Mrs Thomas’s interview with Mrs Rai. Information was discussed about residents X, H, N, S, P, G and Q.[62]The form for resident G’s hourly safety checks (page 287) show that the document is completed with checks apparently carried out at least until 22.15. Thereafter the figures appear to have been altered and are unclear. On the claimant’s evidence the last entry is timed at 07.15. Her counsel submits that in fact that is 03.15. Mrs Thomas formed the belief that it was 7.15. As the claimant herself believed her handwriting said 7.15, while we understand counsel’s logic on this, we find that it was reasonable for Mrs Thomas to believe that was timed at 7.15. Mrs Thomas formed the view that this form was therefore pre-populated.[63]It is her evidence that this amounts to falsification because it is putting down that a visit will be made at a particular time when staff cannot be certain of the time that they will be able to attend to a resident. She explained that accuracy is extremely important. If there is an incident matters can end up in a coroner’s court when the precise time at which care was given, or what care was given by who, will matter. It was her view that the care records are legal records and deliberate inaccuracy in them amounts to creating a false record.[64]Mrs Rai’s explanation for this one was it was a mistake, and she crossed it out before the visit, she said this was before 1 a.m. and there was new paperwork. This was not found by the respondent in the resident’s room or file. We note that it was subsequently determined that this document was probably not collected by Miss MacDermot until the following day. On its face therefore there would be no issue with the times being pre-populated. However, because it was Mrs Rai’s evidence that she stopped using this form at 1 a.m., the fact that it was not collected until the following day does not assist the claimant. It still evidences prepopulation and, in the respondent’s reasonable belief, falsification. It does not then matter if the time is 2 or 7 as Mrs Rai said she completed it by 1 a.m.[65]The record for resident P for the hourly check was at page 288 and the positional change record at page 298. Their fluid intake chart was at page 295. Mrs Thomas found that the hourly safety check chart had been prepopulated with time entries at 3.20 to 7.15 written in. In her view this amounts to falsification. The positional change recording form showed that the resident had been repositioned by one person only, Mrs Rai at 03.05. It was Mrs Thomas’s evidence that it would take two people to reposition a resident, and we can see that on all other occasions there are two initials. Further, Mrs Thomas did not believe the time could be right because at 03.05 Mrs Rai was in the lounge where she was found by Miss MacDermot. She could not therefore have been repositioning resident P. This was an example of falsification.[66]Resident P’s fluid charts shows that no fluid was given between 3.05 and 6.40. This is not doing hourly checks. Further Mrs Rai cannot have been providing fluid to resident P at 3.05 as she was in the lounge. That is falsification.[67]We also note that while it is the claimants’ position that fluid is not given where an individual is asleep, on this residents form she indicates she did a fluid check when the resident was asleep. Similarly, with resident S at page 294 Mrs Rai carries out a check at 02.30 when the resident is noted as asleep. There are no more checks until 9.11 which indicates two things. Firstly it is not correct that the claimant did not do fluid checks if the resident was asleep. Secondly this demonstrates a failure to carry out hourly checks.[68]Resident Q’s forms were not included in the bundle. From the notes of Mrs Thomas’s interview with Mrs Rai this is given as an example of hourly checks not been completed after 1 a.m.[69]Resident V’s information was at page 289. This shows the last hourly check at 22.15. After that there are entries for times but no entry of any activity. Mrs Thomas believed this indicated that Mrs Rai had not carried out hourly checks after 22.15 and had pre-populated the form. She found that this was evidence of pre-population which in her mind amounts to falsification as well as evidence of no hourly checks.[70]The fluid chart for resident X was at page 291. Mrs Thomas believed that this showed that no fluid had been offered to the resident before 09 21 in the morning. This therefore demonstrated a failure to do checks[71]The fluid chart for resident H was at page 292 and again Mrs Thomas believed this showed that no fluid had been offered before 9 a.m The fluid chart for resident N showed the same, with the first fluid being offered at 8:20 a.m. This demonstrated failure to carry out hourly checks.[72]Mrs Thomas also considered page 296 which was the repositioning chart for resident N. This is originally considered because the care plan had been amended to mean that the repositioning should take place every two hours whereas the form shows that for our repositioning was being carried out. This concern was not taken any further.[73]In summary Mrs Thomas considered that the documents for resident G and V were falsified because they were pre-populated. The three documents for resident P showed no hourly checks and falsification on two grounds. It was pre-populated and contains a time 3.05 which was not possible on the claimant’s own account. That for residents Q, V, X and H showed that no care was given on an hourly basis.[74]Mrs Thomas accordingly reached the conclusion that the second allegation was upheld in both parts, not giving care and falsification. She took into account the evidence from the interview notes together with a review of hourly check documents and fluid charts for a number of residents. Mrs Rai was unable to provide any explanation as to why the daily notes had not been completed or had been pre-populated. No fluid charts had been completed in line with BUPA policy and documents had been falsified in regard to fluids. Mrs Thomas concluded that she had a reasonable belief that Mrs Rai had not completed fluid charts in line with policy and the documents were falsified in regard to fluids been in breach of residents. She was also unable to give an account of why supplementary charts were not completed in line with correct procedures. For all these reasons she recommended this allegation also proceeded to[75]In her witness statement Mrs Rai stated that the investigation meeting was flawed, unfair and biased against her. She relied on the changes she made to the notes once she received the typed-up version of the conversation. In answer to cross examination questions she also said that she was denied the opportunity of an interpreter and was told he could not talk to anybody. She accepted that this was not something she requested at the time. We find it was reasonable for this not to be proactively offered since the claimant was engaged to work in an environment where she was required to use English.[76]We find that she was given all the information in advance of the hearing. She had every opportunity to put her side of the case. We find that the procedure followed by Mrs Thomas was a reasonable one and was fair in all the circumstances. We find that Mrs Thomas reached a fair and reasonable view, based on a fair thorough and reasonable investigation that there was sufficient evidence that the matter should proceed to a disciplinary hearing. Findings for Mrs Gurung.[77]From her interview with Mrs Gurung, Ms Thomas considered the first allegation and took into account the witness statements and relevant policy document. While Mrs Gurung denied being asleep at the time she did say that was a sheet on her chair and the lights were off on the ground floor. Ms Thomas formed a belief that Mrs Gurung understood the night working policy and there was an intention to sleep. Mrs Thomas considered the supervision in September 2022 and believes that Mrs Gurung understood that she was not either to sleep or evidence an intention to sleep.[78]She recommended this allegation move forward to a disciplinary hearing. While we note the discrepancy between the allegation and Mrs Thomas’ recommendation, we find that her report reflects sufficient concerns for it to move to a disciplinary hearing. Mrs Thomas was not making the decision but merely confirming whether there was sufficient concern for matters to move to the next stage.[79]The paperwork in relation to residents which was considered was the same for both claimants. She understood that Mrs Gurung was saying that the logbooks had been taken to the lounge. She explained that the folders are divided amongst the carers with 10 to 11 folders each. She accepted therefore that she was not completing the residents’ charts to reflect the checks she herself carried out. Mrs Thomas considers this to be falsification since Mrs Gurung was prepared to note what other colleagues had done in relation to residents as if she had done it herself.[80]On the basis of the paperwork there was no evidence that Mrs Gurung had carried out hourly checks. Mrs Thomas concluded that Mrs Gurung was not able to give accounts of why people had not been supported with hourly checks. She was not able to explain the correct process of supporting residents at night or writing up log sheets in an appropriate manner.[81]In the interview between Mrs Thomas and Mrs Gurung, the claimant accepted that in effect she pre-populated charts. She was asked why times are written in before checks had been carried out and she said that she did all the hours like that that she wrote the hours first and then filled out later. It was put to her this was not accurate as it was not giving the correct time.[82]On the basis of the investigation and Mrs Gurung’s admissions, Mrs Thomas concluded that the second allegation should be heard at a[83]We find that, based on Mrs Gurung’s admission of the groups practice in terms of record-keeping Mrs Thomas formed a belief that Mrs Gurung had falsified records by not carrying out her own checks. She also treated the paperwork for the various residents as evidence that no hourly checks have been carried out by any carer since, if they had this would have been noted, albeit not by the person who carried out the checks. Disciplinary hearing by Julie Taylor[84]Following Mrs Thomas’ recommendations, Julie Taylor, a care home manager of another home, was appointed to chair the disciplinary hearing. She was sent Mrs Thomas’ investigation reports, together with the multiple appendices that accompanied these. Mrs Taylor received and reviewed these in advance of the disciplinary hearings which were held on 7 February 2023 for Mrs Rai and 17 February 2023 for Mrs Gurung. Mrs Rai[85]We were taken to the notes of Mrs Rai’s interview with Mrs Taylor and the disciplinary outcome letter. Mrs Taylor upheld allegation one namely that Mrs Rai was found to be sleeping in the dining room. Her outcome letter specified that she relied on the evidence of Miss MacDermot and Mr Siegert. She made reference to the resident being found in the lounge and the lack of care as evidencing that Mrs Rai was sleeping. She also made reference to the fact that the corridors were in darkness and the doors of resident rooms were shut. She specified that when questioned Mrs Rai was unable to provide a satisfactory answer and had many inconsistencies in her responses. Mrs Taylor satisfied herself that Mrs Rai was aware of the night working policy and knew that not only was she not allowed to sleep on duty, but she was also not permitted to make herself comfortable with the intention to sleep, she had to be wakeful and ready to respond to emergencies and the needs of residents at all times. In her outcome letter she found that Mrs Rai was asleep.[86]This conclusion was challenged by the claimants on a number of points. In the interview notes with Mrs Rai it was noted that Mrs Rai said that a side lamp on the table was on. This explanation was not noted in the decision letter. Mr Taylor explained that she did consider this, but she did not believe that this care home had lamps because of the type of residents.[87]We find that she had heard Mrs Rai’s explanation and had reached the conclusion set out in the letter that in fact all the lights were off. She did not accept that it was a mistake not to refer to the lamp in the letter and we accept her evidence. We find that the letter sets out the evidence that she preferred in reaching her conclusion. We find that she wrote the outcome letter having considered all the points that have been put to her which included Mrs Rai’s explanation. She simply did not accept it.[88]It was also suggested Mrs Taylor that her conclusion that the first allegation was upheld relying on the fact that PIR sensors were switched off was not a reasonable one because there was no evidence that they were switched off by Mrs Rai, or any evidence that they were all switched off. We find that this is simply one of the factors that she took into account. She formed the view that sensors were likely to be deliberately disabled to prevent staff from being disturbed. On the balance of probabilities we find was she entitled to reach this conclusion.[89]We find that she reached her conclusion having heard and considered all the points made by Mrs Rai and that she preferred the evidence of Miss MacDermot and Mr Siegert. The letter set out some of the supporting evidence which she also relied on which included the fact that residents were found in the lounge whereas Mrs Rai had said they were all settled by 2.30 a.m.[90]On the second allegation her conclusion is criticised because she only refers to resident G and to resident P’s position chart. It was suggested that she had not looked at any of the other documentation in the disciplinary pack. Mrs Taylor did not accept this. It was her evidence that she had considered all of the documentation in reaching her decision. We accept that this was the case. On the balance of probabilities we find that she did take it all into account.[91]On the two specifics, on resident G it is suggested that the time shown is not 6:10 a.m. but 2.10 a.m. That is contrary to the claimant’s evidence. Again we find it reasonable for the respondent to find that the entry was 6.10. After all that is what the claimant thought a handwriting said. This argument is made on the basis that the form itself was not removed until the following day. It was the claimant’s own evidence that she stopped filling this form in at 1 a.m. While Mrs Taylor admits it was a mistake in her letter to say the form for resident G was found at 3 a.m. that is irrelevant because on the claimant’s own evidence she had pre-populated it by 1 a.m. We find that Mrs Taylor reached the reasonable conclusion that this amounted to pre-population and falsification. Mrs Taylor is entitled to accept this is falsification.[92]On resident P’s positional chart Mrs Taylor’s decision was criticised because it was said that this was not part of the investigation report. We do not agree. Resident P’s position chart is referred to in those documents and the claimant brings up that that she is responsible for resident P in the investigation meeting. It was clearly discussed, and the claimant understood the allegation.[93]While we accept that it is likely that this form was not taken until the following day and therefore Mrs Taylor did make a mistake in saying this was taken at 3 a.m., it clearly shows falsification because it shows the claimant attending to the resident at 3. 05 because on her own evidence she was in the lounge.[94]We find that Mrs Taylor relied on these two specifics as examples of falsification by pre-population and indeed falsification as to time. We also find that she considered the rest of the documentation which had been discussed with the claimant in the disciplinary investigation to conclude that hourly checks had not been carried out.[95]The decision was set out in writing on 10 February and the right of appeal was confirmed. Mrs Gurung[96]Again we were taken to the notes of Mrs Gurung’s interview and the disciplinary outcome letter. The meeting lasted for 90 minutes. Mrs Gurung was given the opportunity to respond each the allegations against her. She admitted that she did not check the infrared sensors. She admitted that one resident was in the lounge, and no one was attending to them.[97]Mrs Gurung now relies upon her phone records showing that she was on Netflix at points just before and just after the night visit. She also relied on the fact that Ms Gillet, in her interview as part of the investigation, stated that they were all awake at 2.30 when she went to make a drink. She did not accept that it was nearly half an hour later that she was found asleep. She also now relies on the fact that Mrs Thomas in the investigation made a comment that lights could be off in order to allow the residents to wind down. However, in the same paragraph where she gives that evidence Mrs Thomas also states that she tells people is unacceptable to have the lights off.[98]These points were not mentioned during the disciplinary hearing. Mrs Taylor was asked about watching Netflix and concluded that even if Mrs Gurung had been awake and watching Netflix, she was still in a pitchblack room with residents who were standing and moving around. The fact she claimed she was watching Netflix does not prove that she was awake.[99]Mrs Gurung was unable to explain why Miss Macdermot and Mr Siegert both say that a number of residents were wandering the corridor on their arrival. She could not explain why they both say the lounge was in total darkness. She cannot explain why they say she was sitting in two chairs. She does not know what anyone else in the lounge was doing although she was awake, she could not give evidence that she saw others either awake or asleep so she cannot comment on whether the allegations against other individuals are correct. She also cannot explain why Miss Macdermot and Mr Siegert say there were more than one of the residents in the lounge standing up. She confirmed that she was saying that both individuals were lying. She is unaware of any motive they might have for lying. She did suggest that possibly it was because she blew the whistle in 2021 but accepted that if that were the motive, it would not be a reason for them to lie about everyone else.[100]Mrs Taylor upheld the allegation that Mrs Gurung was found to be sleeping. When she was questioned about this, she explained that she did not believe Mrs Gurung’s explanation given during her interview. She did not accept that there was a side lamp. She found that residents were walking around and within the lounge. Mrs Gurung admitted that there was at least one resident in the lounge that she was not attempting to assist. This was evidence that she was sleeping or at least not wakeful. Mrs Taylor found that drinks were not in reach of residents. She considered that the reason that fluids were not available was evidence that the staff, including Mrs Gurung, were sleeping.[101]It was put to her that the narrative in the outcome letter set out under this allegation does not specify that Mrs Gurung was asleep but that she had been found with all the lights off with a sheet in a position suggest that she was asleep or preparing to make herself comfortable to sleep. Mrs Taylor explained that this was equally bad, staff must be awake. They must not preparing to make themselves comfortable with the intention to sleep and they have to be wakeful. Mrs Gurung was aware of this from the previous letter of concern which had identified this as a possible dismissal issue. Mrs Taylor reached a conclusion that not being wakeful is also an act of gross misconduct.[102]In the outcome letter Mrs Taylor also upheld the second allegation. The letter specifies that she did so based on forms not being completed for residents V, I, two and four. Mrs Gurung stated, when the form for resident V was put to her in the investigation meeting as evidencing that no check had been carried out since 22.15, that they must’ve been doing something else.[103]The letter also states that Miss MacDermot checked resident folders at 3 a.m. and they had been pre-populated which is a falsification of residents’ information. We find that this was a mistake. Miss MacDermot had not said she had done this for the ground floor; however Mrs Thomas investigation report had gone through paperwork for the ground floor and had found pre-population. We do not find that this is a material mistake by Mrs Taylor attributing the information to the wrong person. The evidence was there and was taken into account.[104]The outcome letter reflects the admission that Mrs Gurung made in the disciplinary interview, namely that she writes all the times of the hourly checks even if that is not the time that the resident is checked. Mrs Gurung had also admitted to the same pre-population in her interview with Mrs Thomas. She had confirmed that she writes the hours first and fills them out later.[105]In her interview with Mrs Taylor, Mrs Gurung also confirmed, when she was asked how night checks are carried out, that she didn’t always do them when it said hourly. She might do them one to 2 hours later. Mrs Taylor accepted this as evidence that night checks were not therefore been carried out.[106]She also confirmed that she was doing 10 to 11 random folders for residents and not necessarily those that she was caring for. Mrs Thomas concluded that Mrs Gurung was guilty of noncompletion of night checks and falsification as it is the respondents view that putting an incorrect time down amounts to falsification. On the respondents understanding of falsification, Mrs Gurung admitted to this. She also admitted that she prepopulated paperwork.[107]In cross-examination Mrs Taylor said that she did not look at forms for Mrs Gurung. She also accepted that she was wrong to find that Mrs Gurung had been guilty of falsification. While that was the evidence that she gave to the tribunal, that is not borne out by the contemporaneous documentation or Mrs Gurung’s admissions. Mrs Taylor did ask Mrs Gurung about residents’ documentation in the disciplinary interview. That included documents that are within the tribunal bundle and additional paperwork that Mrs Gurung requested, and which was given time to read prior to the interview. She must therefore have looked at forms for Mrs Gurung. It is clear from the notes that they look through paperwork.[108]We find that Mrs Taylor was a nervous witness and was being asked to record details of events that occurred in February 2023. She also confirmed that in advance of the hearing she had not re-read the paperwork that related to the disciplinary matters. We find that her evidence on her thought processes recreated in 2025 for a decision that she took in 2023 are not reliable and we prefer the contemporaneous documentary evidence. On that basis we find that Mrs Taylor did consider relevant paperwork for Mrs Gurung and did find that, on her own admission, she did not carry out hourly checks and she pre-populated forms which also amounts to falsification as this is not the time it was checked. She therefore upheld the second allegation based on the evidence that she heard.[109]Mrs Taylor considered all available sanctions in the case of each claimant. She considered options of a final written waring and retraining. She concluded that the breaches were sufficiently serious to warrant dismissal without notice. She considered that they were sufficiently serious to warrant dismissal without any warnings. The claimants were informed of this and told of the right to appeal.[110]We accept that both claimants were dismissed for a combination of the two allegations against them and not for either one or the other. This is a case where the reason for dismissal were in effect composite reasons. We find that Mrs Taylor found both reasons had been made out for both claimants. The appeal[111]Both claimants appealed against their dismissal on identical grounds firstly that the breaches of the disciplinary procedure and secondly the decision was too harsh. Ms Umeyor was appointed to chair the appeal hearing. Prior to meeting each individual claimant she read and reviewed the investigation notes and the disciplinary hearing notes. She also looked at the outcome of disciplinary hearings. The appeal meetings took place on 31 March with Mrs Rai and 4 April with Mrs Gurung. Mrs Rai[112]This claimant attended without anyone accompanying her. The grounds of the appeal were discussed. While Ms Umeyor took into account what was said to her including her denial which been sleeping on duty, she concluded there was no new information. She had no reason to doubt the credibility of the witnesses who made the allegation that led to the disciplinary outcome decision. She also took on board Mrs Rai’s point of view that the outcome was too harsh but concluded that it was sufficiently serious to warrant dismissal. She confirmed this outcome in a letter of 24 April. Mrs Gurung[113]Mrs Gurung did not attend with a representative or colleague. In the discipline appeal meeting she denied falsification of the residents’ records and provided evidence of her mobile browsing history to support a claim that she was not sleeping on her shift.[114]The appeal chair concluded she did not doubt the credibility of witnesses who made the allegations, and that Mrs Gurung had not provided new information. She therefore upheld the first allegation. As to the decision being too harsh, she also noted that Mrs Gurung had supervisions which noted that supplemental charts were be to completed at the time of care and kept in the room, staff were not to sleep on duty, staff were to spread themselves throughout the floor and record all care given the times given.[115]She concluded that even if she was watching Netflix, she can still fall asleep. The decision to dismiss was upheld. Discrimination allegations[116]A number of allegations of direct discrimination are made. It is the claimant’s position only the Nepalese staff members were suspended. They say that a white British nurse was not suspended. This individual was identified as Danielle Gillett. A carer of African origin was also present and was not suspended. This carer was identified as Morufat Temitope.[117]Miss MacDermot was asked about the treatment of Morufat Temitope. It is agreed that she was not suspended during the night shift. Miss MacDermot said that she did not observe her sleeping. Further when she looked at the records prepared on the first floor none of those had Morufat’s signature. Miss MacDermot did confirm that Morufat was hostile towards her and her colleague but neither Miss MacDermot nor Mr Siegert reported that they discovered any wrongdoing.[118]Miss Gillett was not found to be asleep. She was awake in the office with the door closed doing paperwork. The bundle contained a letter which indicates that this individual was investigated through a formal disciplinary process and was issued with a written warning. It also refers to the suspension being lifted the day after the disciplinary outcome confirming that Ms Gillett was also suspended.[119]Miss MacDermot confirmed that over the two nights she suspended everybody that she found to be sleeping and/or not preparing records appropriately. This included Ms Hamblin-Harris who is white British and Ms Gassama who was West African. Miss MacDermot confirmed that they reported the agency worker to the agency. She would have no knowledge of what happened with an agency worker thereafter.[120]Miss MacDermot was asked about the timing of the suspensions. She confirmed that she suspended the claimants. It was put to her that the staff who were found asleep on the second night, who were not Nepalese, were allowed to carry out several shifts. She told us that that was not the case. She treated all staff the same. She could not suspend during a shift because that would leave the care home without any staff she did so as soon as the shift had finished. There was no difference in treatment.[121]We accept Miss MacDermot’s evidence. The claimants are relying on second-hand accounts as to what happened to other staff. Miss MacDermot was able to give first-hand evidence. We find therefore that over the two nights all staff who were found to be asleep and/or to have incorrectly completed records were suspended. We also find that they were all suspended with immediate effect from the end of the shift. There was no difference in treatment between the Nepalese staff and the white British or West African members of staff.[122]The claimants also state that only Nepalese employees were investigated and that formal decision processes related to only Nepalese employees from the night. The bundle contained outcome letters for other staff. We accept the evidence of the respondent’s witnesses accompanied with the relevant documentation that all staff who were suspended were invited to a disciplinary process. Formal decisions were made in all cases. All were dismissed with the exception of Mrs Gassama who had resigned prior to the incident occurring. The information sent to the disclosure and barring service indicated that Mrs Gassama would also have been invited to a disciplinary meeting had she not already resigned.[123]We find that with the exception of Mrs Gassama, all staff who were thought to be sleeping on duty were subject to an investigation and formal decision process. This included a white British employee. We find that the reason for exclusion of the West African employee was a difference in circumstances namely her prior resignation.[124]The claimants also states that the decision to dismiss Nepalese employees was because of their race. We have found that a white British employee was dismissed for the same reason.[125]The claimants state that the respondent preferred senior members of staff account, who are prejudiced against Nepalese people, over the Nepalese members of staff account. In essence the cases that they were not asleep, the records were not done inappropriately and the respondent simply failed to believe their accounts. In their witness statements both claimants give examples of what they said amounted to evidence of discrimination by both Mr Siegert and Miss MacDermot.[126]There are two allegations made against Mr Siegert. These are that he made insensitive comments about the investigation process and was responsible for allocating the Nepalese staff to less favourable areas of the home in which to work.[127]In Mrs Gurung’s witness statement she set out that Mr Siegert made insensitive comments during the investigation process. This consisted of comparing Nepalese staff at the home to the news of Nepalese nurses abroad who had abused residents and saying they were all the same. Mrs Gurung was also told by a colleague that Mr Siegert discussed the investigation with other staff and asserted he would make sure that the suspended staff would no longer work in the care service and that they should start looking for cleaning jobs. She also stated he had been heard to say he wants to get rid of older staff all of whom are Nepalese which indicated his bias.[128]Mr Siegert gave evidence that he made no such comments either about making sure the staff should be sacked so they could become cleaners or that he wanted to get rid of older staff. No reference to these comments were made by either claimant when they met with Mrs Thomas. Both signed the notes that meeting and did not make any amendments to reflect these allegations. Mrs Thomas confirmed that no information about discrimination was raised with her.[129]On the balance of probabilities we prefer the evidence of Mr Siegert to that of the claimants on this point. They are relying on what they say they were told by somebody else who has not given any evidence. We place more weight on the direct evidence Mr Siegert. We also make this finding on the basis that we think, again the balance of probabilities, that had the claimants been made aware of this it would have been raised at the time and it was not. We find therefore that no such comments were made by Mr Siegert.[130]Ms Gurung believed that there was a disturbing pattern of behaviour disadvantaging Nepalese staff because between January and March 2021 there was a clear segregation of staff assigned to night shifts. Nepalese staff were assigned to the first floor where residents with behavioural challenges required more demanding care, while white British staff were predominantly assigned to the ground floor, where the work was considerably lighter. It was only after she raised concerns that this unfair treatment of staff that work was distributed equally between the two floors. In his witness statement Mr Siegert also told us that there was no difference between the ground floor and the first floor. All residents at the home require nursing care and all have similar nursing needs.[131]Again, on the balance of probabilities we prefer the evidence of Mr Siegert. The claimant’s evidence was at times confused and contradictory whereas his account was consistent. We find therefore that there were no difference in the type of residents on either floor and that there was no disadvantage to any staff member being assigned to any particular floor. We find that there was no different treatment of Nepalese staff in the assignment of work.[132]In relation to Miss MacDermot, Mrs Gurung complains that in October 2022 five Nepalese staff were gathered to share food during break time when Miss McDermott walked in and questioned why they were eating together in a very rude manner. In answer to cross examination questions Mrs Gurung said that this was around 11 PM.[133]Miss MacDermot was not cross-examined on this point. Her witness statement explains that she believed this was at 9.30, and not at 11as the claimants say. It was a busy time for assisting residents as she was surprised to find staff taking a break and she expressed her concern about that. Her intention was not to be rude or disrespectful was made out of concern for the welfare of residents. On the balance of probabilities we prefer the evidence of Miss MacDermot. Her evidence has been consistent throughout. The claimants have not been consistent. We therefore find that there was no intention to be rude and that this was not motivated because it was Nepalese staff meeting together but was a genuine question about why staff would be on a break at a busy time.[134]We find therefore that there was no prejudice against Nepalese staff in the minds of either Miss MacDermot or Mr Siegert. The claimants have not provided any evidence as to why any of Ms Thomas, Ms Taylor or Ms Umeyor are prejudiced against Nepalese staff. We find that all three decision-makers properly considered all the evidence before them and reached a conclusion as to the credibility of the respective evidence which was not influenced by the claimant’s race or national origin. We note that all staff who were suspended over the two nights were treated in the same way.[135]Mrs Gurung states on 28 April 2021 she and two other Nepalese comments were issued a letter of concern with being in a position that could lead to sleep through the night check, but a white British colleague was not. The bundle contained a letter to the white British colleague who was on the same shift who was given the same letter of concern. Mrs Gurung suggested that there was some other colleague that she had not identified. We did not accept her evidence on this point.[136]Following their dismissals Mrs Gurung and Mrs Rai were sent letters informing them that there was a requirement to flag concerning behaviour with relevant parties. Having reviewed the file both were advised that they had now been referred to the Disclosure and Barring Service. The DBS would consider the case and consider whether there needed to be placed on a provisional list of care workers were unsuitable to work with vulnerable adults.[137]By way of an amendment made on 1 February 2024 both claimants added an allegation of victimisation to their claim. Both rely on the submission of their claim forms on 4 July 2023 as the protected act which led to the detriment of the DBS referral.[138]Zoe Romani the Assistant Speak up Officer gave evidence on the respondent’s motives. She confirmed that everybody who was found asleep on the night shift of the 8/9 December were referred to the DBS. This included two non-Nepalese staff.[139]Ms Romani explained that the respondent is under a statutory obligation to make a referral to DBS as there is an obligation to remove somebody from engaging a regulated activity with vulnerable adults in circumstances where that person harms or puts at risk of harm vulnerable adults. The DBS lists a failure to identify and/or meet care needs as one of its non-exhaustive examples of conduct which could give rise to harm or risk of harm. This includes ignoring residents and unmet social care needs[140]She explained that it is the respondent’s policy that falling asleep on duty is regarded as neglect, particularly where several other members of staff are asleep at the same time. Care staff who asleep or not providing care to not in a position to respond to request for care from residents. This is made clear in the night working policy and is also part of the training provided to home managers. It was the respondent’s belief that on two occasions a total of seven employees were found sleeping over two nights in the case of an emergency the residents would have been at risk. The situation therefore met the harm or risk of harm threshold. Further issues of care records being pre-populated indicated dishonesty and neglect. Mrs Romani explained that once the threshold is met then there is a duty to make the referral. This is a legal requirement not a matter of preference.[141]The timing of the referral is said by the claimants to be an act of victimisation. Ms Romani explained that they had to wait for the conclusion of any appeals before proceeding. The first appeal was determined on 2 May 2023. She then explained that the need for obtaining documentation and staffing issues meant she was not in a position to refer until September. Ms Romani confirmed that only the two claimants had brought employment tribunal claims. Staff who had not done so were also referred. Law/Submissions Direct Discrimination[142]The claim includes direct discrimination. S13 of the Equality Act (“EqA”) provides “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”.[143]S.13 EqA focuses on whether an individual has been treated ‘less favourably’ because of a protected characteristic, the question that follows is, treated less favourably than whom? The words ‘would treat others’ makes it clear that it is possible to construct a purely hypothetical comparison.[144]Whether the comparator is actual or hypothetical, the comparison must help to shed light on the reason for the treatment. Shamoon v the Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 identified that the comparator required for the purposes of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim so that he, or she, is not a member of the protected class. There must be ‘no material difference between the circumstances relating to each case’ when determining whether the claimant has been treated less favourably than a comparator.[145]A complaint of direct discrimination will only succeed where the tribunal finds that the protected characteristic was the reason for the claimant’s less favourable treatment. We considered the question of the degree of connection between the employer’s action and the influence of the alleged discrimination and the Supreme Court decision in Royal Mail Group Limited v Efobi (2019) EWCA Civ 18 paragraph 28 “The aspect of section 136(2) which is the focus of this appeal is not the only respect in which the opportunity was taken to alter the wording of the old provisions so as more clearly to reflect the way in which they had been interpreted by the courts. The old provisions referred to “an adequate explanation” (or “a reasonable alternative explanation”). Those phrases were also apt to mislead in that they could have given the impression that the explanation had to be one which showed that the employer had acted for a reason which satisfied some objective standard of reasonableness or acceptability. It was, however, established that it did not matter if the employer had acted for an unfair or discreditable reason provided that the reason had nothing to do with the protected characteristic: see eg Glasgow City Council v Zafar [1997] 1 WLR 1659, 1663; Bahl v The Law Society [2004] EWCA Civ 1070; [2004] IRLR 799; Laing v Manchester City Council, para 51”.[146]This decision confirmed the question is whether discrimination had nothing to do with the decision or the behaviour of an alleged wrongdoer responsible for the impugned conduct.[147]In the Supreme Court decision in R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and ors 2010 IRLR 136, SC. Lord Phillips’s explained that direct discrimination can arise in one of two ways: where a decision is taken on a ground that is inherently discriminatory, or where it is taken for a reason that is subjectively discriminatory.[148]The ‘but for’ test will apply principally in cases where some kind of criterion has been applied that is indissociably linked to a protected characteristic and, in that sense, is inherently discriminatory. However, in the majority of cases, the best approach is to focus in factual terms on the reason why the employer acted as it did. This entails the tribunal considering the subjective motivations of the putative discriminator in order to determine whether the less favourable treatment was in any way influenced by the protected characteristic relied on.[149]As Lord Nicholls put it in Nagarajan v London Regional Transport 1999 ICR 877, HL: ‘Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.’[150]The claimant brings a separate claim for victimisation. Victimisation is defined as follows (1)A person(a) (A) victimises another person(b) (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. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.[151]The respondent conceded that the claimant did a protected act by bringing proceedings under the equality act on 4 July 2023 and is also accepted that referring the claimant to DBS amounted to a detriment. The relevant legal point to consider is therefore the causation test. We were reminded the protected act must be a more than a minor or trivial causal influence on the detriment. Burden of proof in discrimination[152]Igen v Wong Ltd [2005] EWCA Civ 142, [2005] ICR 931, CA. remains the leading case in this area. There, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out to the tribunal’s satisfaction (i.e., on the balance of probabilities) is the second stage engaged, whereby the burden then ‘shifts’ to the respondent to prove, again on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground.[153]The Supreme Court in Royal Mail Group v Efobi, considering s136(2) of the Equality Act confirmed that at the first stage of the two-stage test, all the evidence should be considered, not only evidence from the claimant.[154]The bare facts of a difference in treatment and a difference in status only indicate a possibility of discrimination, they are not 'without more' sufficient material from which a Tribunal can conclude that there has been discrimination, Madarassy v Nomura International [2007] IRLR246 CA. Time limits ,Equality Act 2010 (“EA”)[155]Section 123 EA provides: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[156]The key question in determining whether there was conduct extending over a period is whether there was an ongoing situation or continuing state of affairs which amounted to discrimination (Hendricks v Metropolitan Police Commissioner [2002] IRLR 96). The claimant bears the burden of proving, by direct evidence or inference, that numerous alleged incidents of discrimination are linked to each other so as to amount to a continuing discriminatory state of affairs.[157]In Jones v Secretary of State for Health and Social Care [2024] EAT 2 the EAT held reviewed the authorities relating to just and equitable extensions and noted that there was a ‘common practice’ among those seeking to argue that time limits should not be extended to rely on the comments of Lord Justice Auld in Bexley Community Centre (t/a Leisure Link) v Robertson 2003 IRLR 434, CA that time limits in the employment tribunal are ‘exercised strictly’ and that a decision to extend time is the ‘exception rather than the rule’, as if they were principles of law. The EAT stated that the practice of relying on these comments out of context should cease. What tribunals should regard as the relevant legal principles are that employment tribunals have a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere.[158]The relevant factors will vary from case to case. The Court of Appeal in Abertawe Bro Morgannyg University Local Health Board v Morgan [2018] IRLR 1050 observed that the wording of section 120(1)(b) “such other period as the employment tribunal whether to extend time. Leggatt LJ said that “factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reason for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claims while matters were fresh).”[159]Tribunals are encouraged to “assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular… ‘The length of, and the reasons for, the delay’ ” (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 22).[160]In Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022]UKEAT 132 the EAT held that the potential merits of a claim, which was not so weak as to be struck out under Rule 37, are not irrelevant when it comes to deciding whether it is just and equitable to extend time. If these the merits are weighed in the balance against the claimant the assessment of the merits “must have been properly reached by reference to identifiable factors that are apparent at the preliminary hearing, and taken proper account, particularly where the claim is one of discrimination, of the fact that the tribunal does not have all the evidence before it and is not conducting the trial”. Unfair Dismissal s 98(1) ERA[161]Once the employer has established a potentially fair reason for the dismissal under section 98(1) of ERA 1996 the tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason.[162]Section 98(4) of ERA 1996 provides that, where an employer can show a potentially fair reason for dismissal: "... the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[163]Where misconduct is said to be the reason for dismissal then, as set out in British Home Stores Ltd v Burchell 1980 ICR 303 EAT, the respondent must show that it believed the claimant guilty of misconduct, it had in mind reasonable grounds upon which to sustain that belief, and at the stage at which the belief was formed on those grounds, it carried out as much investigation into the matter was reasonable in the circumstances.[164]It is not enough that the employer has a reason that is capable of justifying dismissal. The tribunal must also be satisfied that, in all the circumstances, the employer was actually justified in dismissing for that reason. It must consider whether in all the circumstances it was reasonable for the employer to treat that reason as sufficient reason to dismiss. In this regard, there is no burden of proof on either party and the issue of whether the dismissal was reasonable is a neutral one for the tribunal to decide.[165]When assessing whether the respondent adopted a reasonable procedure and was reasonable in treating the reason as sufficient to dismiss, the tribunal must use the range of reasonable responses test.[166]By the case of Sainsbury's Supermarkets Ltd v Hitt 2003 IRLR 23 tribunals were reminded that throughout their consideration in relation to the procedure adopted and the substantive fairness of the dismissal, the test is whether the respondent’s actions were within the band of reasonable responses of a reasonable employer.[167]In this case the Court of Appeal decided that the subjective standards of a reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. The tribunal is not required to carry out any further investigations and must be careful not to substitute its own standards of what was an adequate investigation to the standard that could be objectively expected of a reasonable employer[168]Counsel for the claimant submitted as follows “The investigation should be looked at as a whole when assessing the question of reasonableness. Whether and to what extent it is necessary to carry out specific inquiry into any defences advanced by the employee in order to meet the Burchell test will depend on the circumstances as a whole: Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94 at [23]. When considering whether conduct should be characterised as gross misconduct, an employer should consider whether the conduct is repudiatory, entitling the employer to dismiss with immediate effect: Wilson v Racher [1974] IRLR 114. The conduct must be a deliberate and wilful breach of the contract or amount to gross negligence: Sandwell & West Birmingham Hospitals NHS Trust v Westwood [2009] UKEAT/0032/09. What constitutes gross misconduct must be considered in relation to the particular employment and employee: Hamilton v Argyll & Clyde Health Board [1993] IRLR 99.”[169]We were also addressed on the position where a number of different complaints form part of the reason to dismiss. We were directed to Smith v Glasgow City District Council [1987] ICR 796 HL). This provided that in circumstances where there are a number of complaints each one which forms part of the reason to dismiss all the complaints must be examined together. The tribunal must then assess fairness on the basis of that composite reason.[170]We were also directed to Robinson v Combat Stress EAT 0310/14, an employment tribunal identified three separate complaints, including one of sexual assault, which together formed the employer’s composite reason for dismissal. The tribunal found that the investigation into the allegation of sexual assault was ‘deeply flawed’, since no reasonable employer would have carried it out in the way this employer had. It nevertheless concluded that dismissal based upon the remaining two complaints was fair. The EAT held that the tribunal had erred in sidelining the complaint of sexual assault and looking separately at the other two complaints without appreciating that they were only part of the employer’s reason for dismissal: “Where the reason for dismissal is a composite of a number of conclusions about a number of different events, it is the whole of that reasoning which the Tribunal must examine, for it is that which the employer held as the actual reason for its dismissal of the employee.” [18][171]We were also referred to 2 cases which deal with the scope for employees to argue the dismissal was unfair based on inconsistent treatment. Counsel for the respondent set out in this way “The leading case on this issue is Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, EAT (subsequently approved by the Court of Appeal in Paul v East Surrey District Health Authority [1995] IRLR 305). In Hadjioannou, the EAT identified three sets of circumstances where a dismissal may be rendered unfair by inconsistent treatment:a. Where employees have been led by the employer to believe that certain conduct will not lead to dismissal.b. Where evidence of other cases being treated more leniently supports a complaint that the reason stated by the employer was not the real reason for dismissal.c. Where decisions made by the employer in “truly parallel circumstances” indicate that it was not reasonable for the employer to dismiss. In considering disparity of treatment the ET must, as in approaching all aspects of the unfair dismissal test, take care not to substitute its decision for that of the employer. Where the employer has distinguished between previous cases and the index case, that distinction may only be impugned by the ET where the distinction drawn by the employer is irrational (Kier Islington Ltd v Pelzman UKEAT/0266/10).” Polkey and contributory conduct[172]The basic award may be reduced where the tribunal ‘considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such as it would be just and equitable to reduce or reduce further the amount of the award to any extent...’. In respect of other awards ‘where the tribunal finds that the [act] was to any extent caused or contributed to by any action of the complainant, [the tribunal] shall reduce the amount of the compensatory award by such proportion as it considers just and equitable...’.[173]For the basic award (but not other awards), conduct which was not known to the employer and cannot have caused or contributed to the dismissal can still be taken into account.[174]To fall into this category, the claimant’s conduct must be ‘culpable or blameworthy’. Save in respect of the basic award, such conduct must cause or contribute to the claimant’s dismissal, rather than its fairness or unfairness. Such conduct need not amount to gross misconduct.[175]A ‘Polkey’ deduction is the phrase used in unfair dismissal cases to describe the reduction in any award for future loss to reflect the chance that the individual would have been dismissed fairly in any event[176]The tribunal must assess any Polkey deduction in two respects:1) If a fair process had occurred, would it have affected when the claimant would have been dismissed? and 2) What is the percentage chance that a fair process would still have resulted in the claimant’s dismissal?[177]Where there is a significant overlap between the factors taken into account in making a Polkey deduction and when making a deduction for contributory conduct, the ET should consider expressly, whether in the light of that overlap, it is just and equitable to make a finding of contributory conduct, and, if so, what its amount should be. This is to avoid the risk of penalizing the claimant twice for the same conduct.
Conclusion
[178]We have then considered the findings of fact as we have made them and the applicable law as we have set out above. Our conclusions are set out below, adopting the issues list as a framework. Unfair dismissal[179]We have found that the claimants were dismissed on the basis of two separate allegations, the second of which had two parts. But the dismissal was for both matters together.[180]We have found that Mrs Taylor formed a genuine belief that Mrs Rai was guilty of all of the misconduct alleged in that she believed that she was asleep and had not completed residents’ night checks and night checks had been falsified.[181]We have found that Mrs Taylor formed a genuine belief that Mrs Guring was guilty of misconduct in that she was not wakeful. While the letter of dismissal has the allegation that Mrs Gurung was found to be sleeping and the decision is that she was not wakeful, we find that this was equally understood by the claimants to be prohibited and to amount to misconduct. We find therefore Mrs Taylor formed a genuine belief that Mrs Gurung had committed an act of misconduct in not being wakeful. We also found that Mrs Taylor formed a genuine belief that Mrs Gurung had not completed residents’ night checks and night checks had been falsified.[182]We are satisfied, therefore, that the decision maker found that all parts of all of the disciplinary allegations against each of the claimants was made out. The question of a composite decision as submitted by the claimants’ counsel does not arise.[183]We find that for both claimant’s such investigation as was reasonable had been carried out. It was not biased. Mrs Thomas’ investigation was extremely thorough and falls within the ambit of reasonableness. We are satisfied that the decision-maker took all this into account when making her decision. We find therefore that Mrs Taylor formed her genuine belief on reasonable grounds after a reasonable investigation.[184]We also conclude that in all the circumstances dismissal is within the range of reasonable responses. The respondents were clear that being asleep on duty, or not being wakeful, not carrying out checks and falsifying records puts vulnerable residents at risk. We are satisfied that alternatives were considered, but in all the circumstances dismissal was a reasonable response. We are satisfied that the respondent followed a fair procedure.[185]In relation to Mrs Gurung, if we were wrong to conclude that the first allegation was made out, we have preferred the evidence of Miss MacDermot to that of Mrs Gurung. Our finding was that she was in fact asleep. We would therefore find that, in addition to her culpable conduct in relation to not completing residents checks and falsifying paperwork, she was also guilty of blameworthy conduct in falling asleep. We would have applied a 100% reduction to any compensation.[186]The claims for unfair dismissal do not succeed. Direct discrimination[187]The claimants must show that they were treated less favourably than actual hypothetical comparator. In this case the direct discrimination complained of, suspension, investigation, a formal disciplinary procedure and dismissal are all said by the claimants to be things that happened to Nepalese employees only.[188]To the extent that the claimants seek to rely on Danielle Gillett, we find that she is not an appropriate comparator. Her circumstances were materially different and she was not found to be asleep.[189]To the extent the claimants seek to rely on Morufat Temitope we have found that her circumstances were materially different. She was not found to be asleep nor was she found to have pre-populated or falsified any paperwork.[190]The only appropriate comparator is therefore the other individual who was found asleep on the night shift. On our findings of fact we have found that a white British employee who was also found to be sleeping was treated in exactly the same way.[191]The claimants raised a complaint that senior members of staff accounts who were prejudiced against the Nepalese were prioritised over accounts given by Nepalese staff. Three examples were given of this to illustrate prejudice. We have found that this did not occur. There is no evidence of prejudice by senior members of staff.[192]We conclude that the reason the claimants were treated as they were because the respondent formed a reasonable belief that they had committed acts of misconduct. Where they formed this reasonable belief about non-Nepalese staff they acted in the same way.[193]This claim does not succeed because there is no difference in treatment. The claimants have not proved facts from which inferences could be drawn that the employer had treated them less favourably on the ground of their nationality or race. The burden of proof does not therefore shift to the employer. Even if it were to do so, we are satisfied that the decision-maker reached a decision on the basis of a proper investigation and there are no surrounding facts from which one could infer discrimination.[194]Issues of time were raised about 2 of the allegations. We have not addressed these as we have found the claims do not succeed in any event[195]The respondent has conceded that there was a protected act and there was detriment. The question is causation, where the claimants referred to the disclosure and barring service because they had brought an employment tribunal claim or not.[196]We have made findings of fact that all staff who were found to be asleep on the relevant two days were referred to the disclosure service. Only the claimants had brought employment tribunal claims. We find that there is no link whatsoever between what is said to be the protected act and the decision to refer the claimants in the way that they did. This claim does not succeed.