Mr S Kassama v Cherish Children’s Care Ltd: 2402642/2020
EMPLOYMENT TRIBUNALS
Case No 2402642/2020
Between
Mr S KassamaClaimantCherish Children’s Care LtdRespondent
Before
Employment Judge SlaterDate 24 October 2024
JUDGMENT
[1]The Tribunal does not have jurisdiction to deal with the race discrimination complaints relating to the handling of the first grievance (part of10.2.1 in the list of issues), the complaint in10.2.2 about the use of the “n” word by a manager in 2017, or10.2.3 or 10.2.4.[2]The complaint of direct race discrimination relating to the handling of the second grievance (part of 10.2.1) is not well founded.[3]The complaint of direct race discrimination about the stereotypes’ conversation in late November 2019 (part of 10.2.2) is well founded.[4]The complaint of constructive unfair dismissal is well founded.[5]The respondent was in breach of contract by not paying the claimant for the full amount of pay to which he was entitled during his 2 weeks on garden leave. Case No. 2402642/2020 2[6]The respondent is ordered to pay to the claimant compensation of £9659 for unfair dismissal.[7]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply to this award for unfair dismissal. The grand total of the award is £9659. The prescribed element is £8709. The period of the prescribed element is 12 February 2020 to 20 November 2020. The excess of the grand total over the prescribed element is £950. The annex to this judgment explains the operation of the Recoupment Regulations.[8]The respondent is ordered to pay to the claimant compensation of £5000 plus interest of £1966 for direct race discrimination.[9]The respondent is ordered to pay to the claimant damages of £535.56 gross for breach of contract.
REASONS
[1]The claimant claimed unfair constructive dismissal, direct race discrimination and breach of contract in relation to notice pay.[2]The issues were recorded at a preliminary hearing in September 2020. These, with slight amendments agreed at the start of this hearing, are set out in the Annex to these reasons.[3]We noted, at the start of the hearing, that there could be some time limit issues in relation to earlier complaints.
Relevant Facts
[4]The respondent was a care company providing support to young people. They have a number of residential homes, including at relevant times Salvo House where the claimant worked. The home was regulated by Ofsted and there were regular inspections. Certain standards of cleanliness and maintaining proper records were Case No. 2402642/2020 2 amongst the things required by Ofsted. The regulations required residential care workers to acquire their NVQ within two years of starting work.[5]The claimant began employment with the respondent on 13 March 2017 as a Residential Support Worker. The claimant identifies himself as black African.[6]There is a factual dispute as to whether and, if so, when, the claimant was given a written contract of employment. There is a contract in the bundle dated 30 May 2017 but not signed by the claimant, and the claimant said he had not seen that contract. However, the claimant's witness statement refers to not being given a contract in the first year but he does not say in that statement that he was never provided with one. We find it more likely than not that the claimant was provided with a written contract at some point, although he may have mislaid this and forgotten it.[7]The claimant understood (at least by relevant times) that he was on a zero hours’ contract. We are told that the respondent no longer employs employees of the claimant's type on such contracts.[8]According to the written contract, the claimant was required to give four weeks’ notice of termination.[9]The claimant’s manager at Salvo House was Jackie Hodson. Chris Baker was the deputy manager and Chris Baker was in a relationship with Jackie Hodson’s daughter.[10]Staff working at the home faced challenging behaviour from the young people resident there. This included swearing, use of sexualised comments and use of racist words. There was what we will describe as a “verbal abuse log” to record this, although recording was not always done, including, on his own admission, by the claimant. Each young person also had a personal log which was to be completed. Some relevant parts of the logs are missing, and we have not had an explanation for that.[11]At some time between April to mid-2017 (but in any event before the young person JH came to the home) there was an incident where Jackie Hodson repeated the N word in full which had been used by a mixed race young person to the claimant. We accept the claimant's account of that incident. The young person told Jackie Hodson that she could not use the word because she is white. Jackie Hodson said she was only repeating what he had said. We accept the claimant's evidence that he recorded that incident in the verbal abuse log and also the young person’s log. The claimant asked for these parts of the logs to be disclosed but they have not been produced.[12]In mid-2017 a new young person (JH) moved to the home. JH made racist comments targeting the claimant. JH had a history of difficulty in attending school. When he was due to start a new school in September, or possibly into early October 2017, he said that he did not want to be taken to his new school by black or Asian workers. Jackie Hodson agreed that only white staff would take him to school. We find that the respondent’s reasons were to go along with the young person’s wishes to prevent him being easily identifiable as a looked-after child being taken to school by a carer who did not look as if they could be his parent or relative. Case No. 2402642/2020 3[13]Jackie Hodson ran the home in a way which was not in accordance with what Alex Wood, head of HR, considered to be good practice. Many matters were dealt with informally and without involving HR. Threats were sometimes made to staff that matters would be referred to HR, although it appears referrals were never made in practice. Staff were allowed to change rotas at very short notice, sometimes creating difficulties with staffing.[14]The claimant was frequently late for work, but this was never addressed formally with him. Threats were made to report him to HR.[15]On 30 January 2018, there was a staff meeting which the claimant did not attend but he would have received notes of. The notes recorded Jackie Hodson raising issues about the need to complete the verbal abuse log, specifying the abuse rather than making generalisations. She also raised issues about cleaning with all staff.[16]On 10 May 2018, the claimant alleges (at 10.2.3 in the List of Issues) that, on 10 May 2018, (a date which he supplied at the start of this hearing), on a couple of occasions, a child called the claimant a black bastard, the N word, etc.; he told the white manager that he was not comfortable with this but the manager refused to take action. The claimant’s witness statement contains no evidence in support of this allegation. The claimant, on whom the burden falls to prove facts on which he relies, has not satisfied us that this particular incident occurred.[17]The claimant identified a co-worker (Kelly) as an actual comparator for this complaint. He said she was in a relationship with an Asian person in the workplace and he asserted that, when children used racist slurs and she raised this, it was taken seriously, and children were punished by losing activities. The claimant has been unspecific about what was said when and the context. The claimant (on whom the burden falls to prove the facts on which he relies) has not satisfied us as to the facts on which he relies in relation to complaints made by Kelly and action taken.[18]On 28 April and 10 May 2019, issues about cleaning not being done during waking shifts were raised with the claimant by Jackie and Chris. Jackie, on 28 April, reassured the claimant that it was not all down to him, but the claimant felt he was being blamed for lack of effort by other staff. Chris, on 10 May 2019, said he had been directed by Jackie to say she was still unhappy about the cleaning and the next conversation about cleaning would be a formal warning.[19]Jackie Hodson rang the claimant on 20 May 2019 to find out where he was up to on his NVQ. The claimant raised in that conversation that he felt he had been unfairly singled out in relation to the cleaning. Jackie Hodson accused the claimant of shouting at her and being disrespectful. We consider it likely that both Jackie Hodson and the claimant were agitated during this conversation.[20]On 20 May 2019, the claimant raised his first grievance, sending this in writing to HR – this related to the cleaning matters and the claimant’s perception that he was being singled out in relation to these issues.[21]In its formal response to this claim, the respondent denied that there had been any grievance. This was acknowledged in Alex Wood’s evidence to be incorrect. We Case No. 2402642/2020 4 find that the respondent did prepare a response to this grievance and it was sent by post to the claimant as was the respondent’s normal practice. The claimant says this response was not received and he made a number of phone calls chasing it up. He did not, however, chase this up in writing. We do not consider it necessary for us to make a finding as to whether or not the claimant received this particular response.[22]In the response prepared by the respondent to the grievance, it was recorded that Jackie Hodson had said the claimant never seemed to do the cleaning and noted that the claimant was behind on his NVQ work. It was also recorded that Emily had reminded Jackie Hodson of the importance of talking professionally on the phone and trying to avoid argument.[23]We find that all staff were allocated cleaning duties. Cleaning issues were discussed with other staff in supervisions around this time and staff were told that everyone was being told that, if the cleanliness of the home did not improve, then staff would be getting verbal warnings.[24]On 23 November 2019 (or around that date), there was an incident after an unofficial Christmas party which involved the claimant and another employee. The claimant and the other employee were both intoxicated. The mother of one of the employees who was driving a group home (including the claimant) called her partner because of concerns about the claimant's behaviour. The mother’s partner arrived and had an altercation with the claimant. The claimant phoned Jackie Hodson and explained what had happened. It does not appear that Jackie Hodson contacted HR about this, although the claimant may have thought that she did. The employee whose mother had been driving contacted HR. HR understood a report had been made to the police, but the employee involved did not want to pursue this and no police action was taken.[25]Around 26 November 2019, Jackie Hodson divulged the claimant's personal details about his partner being pregnant to one of the young people. We find that she did this because the young person was expecting the claimant to be there, and the claimant was not there. There have been some inconsistencies in the explanations we have been given for Jackie Hodson’s actions. For example, Alex Wood’s response to the second grievance includes that this was also to prepare the young person for when the claimant was to take his paternity leave. However, we learned from Alex Wood in her evidence that a plan was in progress to transition the young person to another home. There was also a suggestion that the claimant had been let down the young person by not being there for the young person’s birthday, but Jackie Hodson’s notes on a response to the claimant's grievance refers to the birthday being in October. Jackie Hodson accepted that she should not have divulged this information to the young person.[26]Alex Wood gave evidence to us that, traditionally, personal details about care workers are not shared. We find that personal details about another care worker should not be shared with a young person. Care workers are even discouraged from sharing their own personal details, but they can do so if they choose to do so.[27]When the claimant found out about the sharing of his personal information from the young person he called Jackie Hodson who confirmed that she had told the young Case No. 2402642/2020 5 person about the pregnancy and said “sorry”. The claimant could not discuss this further with her at the time as he was with the young person.[28]Around 27 November 2019, Jackie Hodson involved the claimant in a conversation with a young person about racial stereotypes. We prefer the evidence of the claimant (which is consistent with his second grievance) as to what happened to that in Jackie Hodson’s witness statement. We consider the account given in the claimant's grievance dated 6 December 2019 (which is the nearest to a contemporaneous account which we have) to be the most reliable evidence as to what took place. No-one else who was present at that conversation gave evidence to the Tribunal. Alex Wood took written statements in the investigation, but these have not been disclosed or included in the bundle. Alex Wood was unable to tell us why, although it appears from her evidence that this information would, in the normal course of things, have been retained by the respondent in its archive.[29]We find that the conversation about racist stereotypes started between Jackie Hodson and the young person when the young person made comments about Jews and money. Jackie then went on to involve the claimant, who had been working in the office. Jackie initiated a discussion about a stereotype of black men having large penises. We find that the claimant had been told previously by a senior worker, Peter, that Jackie had set him up for a “right conversation” with the young person. We find from this that Jackie had in mind that she would involve the claimant in a discussion about black men and penises. The exchange was witnessed by Pete and Steve. Jackie and Pete laughed after Jackie said that she had used this particular example. The conversation made the claimant feel uncomfortable.[30]On 29 November 2019, the claimant spoke to Jackie Hodson about divulging his personal information. Jackie Hodson said she had already said she was sorry. The claimant tried to speak to Jackie Hodson about the stereotypes conversation. It appears that there was then a heated conversation bringing in various other issues.[31]Chris, who had come on shift, later called the claimant into the office for a meeting with him and Jackie. The claimant understood that Chris was going to try to mediate between the claimant and Jackie Hodson. The claimant allowed Jackie Hodson to speak uninterrupted but, when it was the claimant’s turn to speak, Jackie kept interrupted, calling the claimant a liar. The conversation ended with Jackie Hodson leaving the office.[32]Later that day, Chris called the claimant back into the office for a supervision. Chris referred to the earlier meeting and accused the claimant of criticising a manager attempting to address behavioural and performance issues. The claimant refused to sign the supervision form.[33]There is an undated letter from Chris Baker in the bundle which (from a reference in it) was written before 2 December 2019 in which he includes a warning that failure to attend training would lead to disciplinary action. He also says that there is a requirement to submit training work by 2 December 2019 and raised issues with timekeeping. We find it is likely that this was the document produced following the meeting on 29 November. It refers to what Chris considered it to be an unpleasant supervision and asserted that the claimant had been criticising a manager attempting to address behavioural and performance issues. Case No. 2402642/2020 6[34]There was a further conversation with Chris on 2 December 2019, with an extra part of the supervision added about respecting colleagues. The claimant raised the matter about young people being told about his private life but Chris said he could not comment.[35]On 3 December 2019, Emily in HR emailed the claimant asking him to provide a statement about incidents on a staff night out. As previously noted, one of the other employees had contacted HR about this but the claimant did not know about this and he thought that Jackie Hodson had alerted HR.[36]On 6 December 2019, the claimant emailed Emily with an account of the incidents. On the same day he also sent to HR a second written grievance. This gave a detailed account about Jackie Hodson divulging his partner’s pregnancy to a young person and the conversation about stereotypes and the subsequent conversations with Jackie and Chris. The claimant also went on sick leave on this day with stress. The sick leave was for the period 6-28 December 2019.[37]On the claimant's return to work, he had a return to work interview on 2 January 2020 with two of the senior employees, Paige and Naz. Issues were raised with the claimant about not attending training sessions, saying there was a significant risk of disciplinary action and being taken off shift until his training was up to date and that his NVQ was outstanding. He was told about cleaning to be done each night and paperwork to be completed, and he agreed with those matters. Alex Wood says that the things that were raised should not have been raised in the return to work interview but should have been raised in a supervision.[38]The claimant was also told by Paige and Naz to update paperwork but, when he went to look at the paperwork, he found that others had also got behind on this. Based on what the claimant says in his resignation letter, we find that the claimant was reassured by Paige and Naz that it was not only him who was being told they had to keep paperwork up to date. The claimant has not satisfied us that he was singled out in relation to requirements to complete paperwork. The correct paperwork was required to meet regulatory requirements and would be something that was looked at during Ofsted inspections.[39]Alex Wood prepared a response to the grievance. We find that she understood that her response had been posted to the claimant in accordance with the respondent’s usual practice but we find that it was not received by the claimant. It is possible that this was because the claimant had not updated HR as to the correct address to use. It appears he had multiple addresses on various documents.[40]We find that the claimant began looking for work around January 2020. We find he had been happy in his job but find that the events of late November 2019 (in particular the conduct of Jackie Hodson in revealing his personal details to a young person and the stereotypes conversation) caused him to consider leaving.[41]The claimant had a supervision with Peter and Mark, who was an acting senior, on 18 January 2020. This was about the claimant not following instructions to collect staff. The claimant explained he needed to get to a game shop because it closed at 6.00pm. Case No. 2402642/2020 7[42]On 22 January 2020, the claimant had a conversation with Pete, who was senior to the claimant, which the claimant covertly recorded. Pete asked the claimant to stay until 11.00pm. The claimant asked to speak to Peter about a pre-existing situation. It is not clear from what is recorded in the transcript what this was about, but Pete appears (from what he said) to have known what it was because he said he did not want to get involved. From what is written in the claimant's resignation letter, we find that the claimant had previously been speaking to Pete on the phone and heard Jackie Hodson saying in the background (when the claimant said he could not stay late), “see, this is what I mean about staff not pulling their weight”. The claimant was upset by this. We find that the claimant wanted to talk to Pete about Jackie’s behaviour towards him.[43]On 28 January 2020, the claimant handed in his notice. He gave two weeks’ notice of termination. The claimant has not satisfied us that this was the amount of notice he thought he had to give. We consider it more likely that this notice was given with the intention of starting a new job after the two week period. The claimant had, when he resigned, got the possibility of work subject to references, but we are told that this job fell through.[44]The claimant said in his resignation letter that “due to the situation and the hostility I am feeling at the workplace I feel I have been left with no choice but to look for another job. I have tried to resolve issues with the manager through policies set by the company and have waited for over two months without anything, or even knowing what is going on”. This must be a reference to the issues about Jackie raised in his grievance and about not having received a response to his grievance. The claimant also refers to the back to work meeting and being told he would end up in a disciplinary if he did not deal with paperwork and broke other rules. He also referred to Jackie’s comments when he said he could not work late.[45]When asked in cross examination why he decided to resign at that particular time, the claimant referred to the email from Emily asking for a transcript. However, once that email was produced, we could see that that occurred before the claimant’s grievance. We consider that Emily’s email was a trigger for the grievance and the ongoing possibility of an investigation was possibly a contributory factor in the claimant's resignation. However, we find that the factors referred to in the resignation letter were genuine reasons for his resignation. We accept the claimant's evidence that he did not specifically mention race discrimination in his resignation letter because he was intending to let it go until the notice pay issue arose.[46]By email dated 30 January 2020, Alex Wood accepted the claimant's resignation but put him on garden leave, saying he would be paid for his notice period but should not attend for work. She wrote that he would be paid for the period with the calculation based on the average number of hours he had worked per week over the last eight weeks. We accept Alex Wood’s evidence that this was normal practice for any employees on the type of contract the claimant had who were put on garden leave. However, based on Alex Wood’s evidence, we find that this should not have included weeks when the claimant was on sick leave.[47]The claimant had a conversation with Emily in HR which he recorded covertly on 3 February 2020. The claimant questioned not being allowed to work his notice and questioned whether the eight weeks would include the three weeks he had been Case No. 2402642/2020 8 on sick leave. Emily said she would pass the questions on to Alex Wood. It does not appear that there was any further response to the queries and the respondent went ahead and calculated the pay on the basis of eight weeks which included the time when the claimant had been on sick leave.[48]We are told that Emily sent an email attaching a copy of Alex Wood’s response to the grievance to the claimant on 5 February 2020, although this does not appear to have been produced to us in the bundle.[49]The claimant’s employment came to an end on 11 February 2020.[50]The claimant went to ACAS under the early conciliation procedure on 18 February and the early conciliation certificate was issued on 18 March 2020.[51]The claimant was paid his final wage on 28 February 2020. We find that a payslip was sent to the claimant, but it appears this did not reach him.[52]The claimant based his notice pay claim in his Schedule of Loss on the net pay he received and what he thought he should have received. The payslip has now been provided to us and we can see from that that the claimant was paid for 11 hours for the two weeks. We found it was past practice for employees on the same contracts as the claimant who were put on garden leave to be paid on an average of the preceding eight weeks, but it was incorrect to include the period of sick leave. We can see from the payslip that £114 was deducted for fines and Alex Wood informed us that this was for speeding fines. We can see that the pay rate was £9.50 per hour at this time.[53]The claim was presented on 1 April 2020. Evidence relating to the people the claimant named as actual comparators[54]The claimant named Chris as an actual comparator in relation to the complaints in 10.2.2. We find that Chris Baker was more senior than the claimant. He was deputy manager at the home. When he was subjected to abuse from young people about his size, Chris could (because of his seniority) ring Jackie up and say, “this is what I am doing”. The claimant accepted that he could not do the same because he did not have the same authority.[55]The claimant named a fellow employee, Kelly, in relation to the complaint at 10.2.3. The claimant asserted that, when she raised the issue of racial slurs, action was taken, and no action was taken when he raised matters. We had no specific evidence of examples of Kelly raising matters and action being taken and the claimant raising matters and action not being taken.[56]We heard that Jackie Hodson was dismissed from her role as manager of the home in March 2021. Case No. 2402642/2020 9 Submissions[57]Both parties made oral submissions.
The Law
[58]The law we have to apply is as follows. Constructive Unfair Dismissal[59]In relation to constructive unfair dismissal, the definition of “dismissal” includes that an employee is to be regarded as dismissed if the employee terminates the contract under which he is employed, with or without notice, in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[60]An employee will be entitled to terminate a contract of employment without notice if the respondent is in fundamental, or very serious, breach of that contract and the employee has not affirmed the contract by their conduct.[61]An implied term of the employment contract is the term of mutual trust and confidence. This is to the effect that an employer will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee. In the case of Woods v WM Car Services (Peterborough) Limited 1981 ICR 666, Browne-Wilkinson J said that the Tribunal must look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. Direct Race Discrimination[62]The law in relation to direct race discrimination is contained in the Equality Act 2010. Section 13(1) provides that: “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.”[63]Protected characteristics include race and race is defined as including colour and ethnic origins.[64]Section 23 provides that: “On a comparison of cases for the purposes of direct discrimination there must be no material difference between the circumstances relating to each case.”[65]Section 136 provides provisions about burden of proof which say that, if there are facts from which the court could decide, in the absence of any other explanation, that a person contravened the provision concerned, the court must hold that the contravention occurred, but this does not apply if the employer shows that they did not contravene the provision. The effect of that is that there is an initial burden of proof on the claimant to prove facts from which the Tribunal could conclude that there was direct race discrimination and, if they satisfy that initial burden, the burden then passes Case No. 2402642/2020 10 to the respondent which must satisfy the Tribunal that the reason for what they did was nothing to do with race. Conclusions Direct Race Discrimination
Conclusions
[66]We deal with race discrimination first because all the matters relied on for race discrimination are also relied on for constructive unfair dismissal, and our conclusions on race discrimination may have implications for our conclusions on unfair dismissal.[67]The complaints were discussed and identified at the preliminary hearing for case management as being of direct race discrimination. During the Tribunal’s deliberations, it occurred to us that perhaps some of the complaints might have been better framed as harassment related to race. However, given the discussion which had taken place at the preliminary hearing and the fact that we had not discussed reframing the complaints with the parties and invited submissions on this, we considered that we were bound to consider the complaints as they had been framed at the preliminary hearing as complaints of direct race discrimination. We consider it unlikely, however, that the success or otherwise of the complaints would have been affected by a reframing as complaints of harassment had this been done.[68]Given the date early conciliation started, acts prior to 19 November 2019 will be out of time unless they form part of a continuing act of discrimination with acts of discrimination after this date. If a complaint was presented out of time the Tribunal only has jurisdiction or power to deal with it if the Tribunal considers it just and equitable to do so in all the circumstances. In relation to each complaint which is potentially out of time, we will consider the merits of the complaint before considering whether we have jurisdiction to deal with it. Allegation 10.2.1 The respondent handled his grievances of 20 May 2019 and 6 December 2019 in a way in which they would not have handled the grievances had he not been black. In particular he received no response to his first grievance and the response in relation to the second grievance was only received after he had resigned.[69]We found that responses were prepared to the grievances and the respondent sent them, or believed they were sent to the claimant, at an address the respondent had on file for the claimant. In relation to the second grievance, we found this was not received until a copy was sent after the claimant's resignation, and we did not consider it necessary to decide whether the first response was received.[70]The initial burden of proof is on the claimant to prove facts from which we could conclude that there was direct race discrimination, leaving aside the respondent’s explanation. We conclude in relation to this complaint that the claimant has not proved such facts. We had no evidence from which we could conclude that grievances from someone who was not black or from a different ethnic origin would have been dealt with in a more favourable way. Case No. 2402642/2020 11[71]In addition, the complaint in relation to the second grievance is in time but the complaint in relation to the first grievance is out of time unless it forms part of a continuing act. We have concluded that it was not part of a continuing act of discrimination. There are no circumstances which make us consider it would be just and equitable to consider the complaint out of time.[72]We therefore have no jurisdiction to consider the complaint in relation to the first grievance and, for the reasons we have given, the complaint in relation to the second grievance is not well-founded. Allegation 10.2.2[73]The complaint of race discrimination at 10.2.2 in fact contains two different complaints.[74]The claimant named Chris Baker as an actual comparator in relation to the complaints. We do not consider him to be an appropriate comparator for either complaint due to the difference in seniority. Chris Baker could take action due to his seniority which the claimant could not authorise. Any comparison, therefore, has to be with a hypothetical comparator.[75]The first complaint contained in 10.2.2 is that at the end of November 2019 (and we think the dates are slightly wrong on this) a white manager identified to be Jackie stereotyped the claimant by referring to a black man’s penis being big, and held this discussion with a child in the care of the claimant.[76]We conclude that the claimant has proved facts from which we could conclude that this was direct race discrimination. Jackie Hodson raised this particular stereotype about black men and penis size involving the claimant in the conversation with the young person. It was overtly about skin colour and the claimant was brought into the discussion because he was a black man. The prior conversation with Pete where Pete told the claimant that Jackie was setting him up for a “right conversation” with the young person, suggests that the conversation was premeditated. The claimant, as a black man, would obviously be more affected by the conversation than someone who was not a black man. Jackie Hodson’s repetition of the N word in 2017 is another matter from which we can infer discrimination on this occasion.[77]The burden, therefore, passes to the respondent to explain why this took place and to persuade the Tribunal that it had nothing to do with race. The respondent has not discharged this burden. There is no explanation as to why Jackie Hodson used that particular example, which was bound to be embarrassing, or why she did not invite the claimant to discuss stereotypes relating to black men without herself suggesting the stereotype to be used.[78]The complaint is presented in time, and we conclude it is well-founded.[79]The next complaint contained in 10.2.2 is a 2017 complaint about Jackie Hodson using the N word in full to the claimant. We found in our findings of fact that this did occur, and it was in 2017. Case No. 2402642/2020 12[80]We conclude that the claimant has proved facts from which we could conclude that this was direct race discrimination. It was use of an explicitly racial term, which is an offensive way of describing a black person. The fact that relevant logs are missing without proper explanation could be a further factor in support of satisfying the initial burden of proof, but we do not need to rely on this. The burden passes to the respondent to prove that the treatment was in no material way because of race.[81]We conclude that the respondent has not provided a satisfactory non race-related explanation for the repetition in full of this word by Jackie. Jackie Hodson provided some explanation at paragraph 16 in her witness statement, but this does not explain why she had to repeat the full term.[82]This complaint would, therefore, have succeeded but for the time limit issue. The complaint was presented out of time, occurring in 2017. We do not consider it forms part of a continuing act of discrimination and there are no circumstances which could lead us to conclude that it would be just and equitable to consider the complaint so long after the event. We have no jurisdiction to consider this complaint. Allegation 10.2.3 On a couple of occasions a child calling the claimant “black bastard, N word, etc”, the claimant telling the white manager he was not comfortable with this but on the basis that it was considered that the child was not using the words directly against the claimant the manager refused to take action.[83]In relation to this particular complaint, we found that the claimant did not satisfy us of the relevant facts on which he relies. We would, therefore, have concluded on the merits that the complaint was not well-founded.[84]The claimant placed it as occurring on 10 May 2018. This makes the complaint out of time. We do not consider it forms part of a continuing act and there are no circumstances which could lead us to conclude it is just and equitable to consider it out of time. We, therefore, have no jurisdiction to consider that complaint. Allegation 10.2.4 A child indicated that they were not prepared to be taken to school either by a black or Asian member of staff and a white manager made the decision that the black or Asian staff should not take the child to school again.[85]We placed this as occurring in 2017, probably September or October 2017.[86]We conclude that the claimant satisfies the initial burden of proof. The claimant was told not to take the young person to school because he was black. This is overtly because of race. We accept that the claimant found this hurtful and, because of this, it was detrimental treatment. However, we accepted the respondent’s explanation that this was because of the white child’s wishes not to stand out as a child in care, being taken to school by black or Asian care workers who were obviously not parents or relatives. We conclude that an appropriate hypothetical comparator would be a white care worker who a black child did not want taking them to school for the same reasons. Case No. 2402642/2020 13[87]The respondent has satisfied us that this was not less favourable treatment because of race. The complaint would not have succeeded on its merits for these reasons. However, the complaint was also presented out of time. We do not consider it forms part of a continuing act of discrimination and there are no circumstances which could lead us to consider it just and equitable to consider it out of time. We, therefore, do not have jurisdiction to consider that complaint. Constructive Unfair Dismissal[88]This complaint was presented in time. Contrary to a submission made by the respondent, it does not matter for time limits that some events relied on were more than three months before the claim was presented. Time runs from the effective date of termination.[89]We consider each of the matters relied on, whether we found they had occurred as a matter of fact and, if so, whether the event is capable of contributing to a breach of the implied duty of mutual trust and confidence. Allegation 10.1.1.1 Expecting the claimant to do all of the cleaning on night duties when others were also on waking duties.[90]As explained in our findings of fact, we were not satisfied that the claimant was expected to do all the cleaning on night shifts when others were also on waking duties. Allegation 10.1.1.2 Blaming the claimant over others when the cleaning was not completed overnight.[91]Again, we were not satisfied that the claimant was blamed over others when the cleaning was not completed overnight. Allegation 10.1.1.3 Threatening a formal warning for failing to complete the cleaning.[92]The claimant was threatened with a formal warning for failing to complete the cleaning. However, others were also threatened with warnings.[93]We conclude that the respondent had reasonable and proper cause for making such threats. Keeping the home clean was important and a matter which would be considered in Ofsted inspections.[94]We conclude that this cannot form part of a breach of the implied term. Allegation 10.1.1.4 Being accused of shouting, swearing and being disrespectful to his manager when trying to voice his concerns. Case No. 2402642/2020 14[95]The claimant was accused in May 2019 by Jackie Hodson of such behaviour. However, we found this occurred in the context of a heated exchange between both of them.[96]We do not consider, having regard to this context, that this is a matter capable of contributing to a breach of the implied term. Allegation 10.1.1.5[97]Allegation 10.1.1.5 contains a number of complaints which we separate.[98]The first is failing to respond to the two grievances. We found that the respondent did respond to these, although the claimant did not receive the second response and may not have received the first.[99]The second complaint is the divulging of personal information. We found this occurred around 26 November 2019. This was something which should not have happened. Only a care worker themselves could decide to divulge such information if they wished to do so. It was wholly inappropriate for Jackie Hodson to divulge the information about the pregnancy without the claimant's consent. We consider this can contribute to a breach of the implied term.[100]The third matter is the conversation about black men and penis size. We found this occurred as described by the claimant. We have found this to be direct race discrimination. This can contribute to a breach of the implied term.[101]The fourth matter is being put under pressure in relation to paperwork on his return to work after sick leave. The respondent did tell the claimant to complete paperwork but we found the claimant was not being singled out. Completion of paperwork was important to meet regulatory requirements. The respondent had reasonable and proper cause for this action and it cannot contribute to a breach of the implied term.[102]The claimant also relied for his constructive unfair dismissal complaint on the matters raised as complaints of race discrimination. Many of these duplicate the complaints which were listed separately for constructive unfair dismissal. The only matters which were not duplicated and which we have found to have occurred were the use of the N word by Jackie Hodson in 2017 and the complaint at 10.2.4 which was about not taking the white child to school.[103]Potentially, the use of the N word could contribute to a breach of the implied term. However, due to the passage of time (the event occurring in 2017) during which the claimant did not complain about this, we conclude that it did not, as a matter of fact, contribute to the claimant's decision to resign.[104]In relation to the matter about being told not to take the young person to school, we have found that this happened but we conclude that the respondent had reasonable and proper cause for their actions so it could not contribute to a breach of the implied term. In addition, we are not satisfied that this event, which occurred in 2017, was a reason for the resignation because of the lapse of time. Case No. 2402642/2020 15[105]We conclude that, in relation to the two matters which we consider can contribute to breach of the implied term, the divulgence of personal information and the conversation about black men and penis size, do constitute together a breach of the implied duty of mutual trust and confidence, and this was a fundamental or very serious breach of contract.[106]For constructive dismissal the breach of contract needs to be an effective cause of the resignation – it does not have to be the only or even the main cause. Whilst it appears there were some other factors at play, such as a potential investigation about the Christmas party incident, we conclude that the breach of contract we have found was an effective cause of resignation.[107]The claimant was looking for new work and thought he had found a new job when he resigned, but we find that he was motivated to look for work because he had become unhappy at work in a job which he had loved. An effective cause of this unhappiness was the matters which we have concluded constituted the breach of contract.[108]We conclude for this reasons that the complaint of constructive unfair dismissal is well-founded. Breach of Contract[109]In relation to the complaint of breach of contract, the respondent accepts that it paid the claimant during his garden leave for less hours than should have been the case. This should have been calculated on an average of eight weeks prior to his resignation excluding periods when he was on sick leave. The claimant was paid for 11 hours for the two weeks. This should have been more. The respondent was in breach of contract by paying the claimant less than the amount he was entitled to. Remedy Unfair dismissal
Remedy
[110]The claimant had completed two years of service as at the effective date of termination. The respondent agreed that the claimant’s gross weekly pay for these purposes was £325. The claimant's age at the effective date of termination was 27. The unfair dismissal basic award is calculated as follows: 2 x £325 = £650.[111]For the compensatory award considering loss of earnings, the respondent agreed that the claimant should be compensated in full for the six weeks immediately after he left the respondent, during which time he was not working. We have accepted the figure calculated by the respondent of £303 as net weekly pay, which in fact is slightly higher than the figure given by the claimant of £1,300 per month. The respondent took this figure from payslips where the claimant was working complete months and calculated an average. For the six weeks at £303 that gives a figure of £1,818.[112]The respondent has argued that the claimant should not be entitled to any other loss of earnings on the basis that they argue he has not sufficiently mitigated his loss. The burden is on the respondent to satisfy the Tribunal that the claimant has not taken Case No. 2402642/2020 16 reasonable steps to mitigate his loss. The respondent has not satisfied us about that in this case. The claimant started work relatively soon after leaving the respondent. There may have been delays with obtaining DBS checks, particularly at times when we got into Covid and that tended to delay lots of things even more. There may also have been restrictions about moving between homes that perhaps had some impact. In any event, the claimant's evidence has satisfied us that he took such work as he could find, sometimes working two jobs at a time. On 20 November 2020, the claimant started a new job where he was earning at least as much as with the respondent so he does not claim any loss of earnings after that point.[113]We consider it appropriate to award compensation for the period from 25 March 2020, when the claimant started working again, until 20 November 2020 when his loss finishes. That is a period of roughly 34½ weeks. 34.5 weeks x £303 a week = £10,453 (rounding up the pence). We take off that the claimant’s earnings, as set out in his Schedule of Loss, during that period: Bluebird £1,939 Music Magpie £507 Safe Hands £1,116 Total earnings in that period. £3,562 Taking that off the £10,453 gives a figure of £6,891.[114]Adding the six weeks’ loss prior to that of £1,818 to that gives a figure of £8,709 for loss of earnings. Adding the loss of statutory rights (agreed at £300) to that gives us a compensatory award of £9,009.[115]We have decided not to make any uplift for failure to follow the ACAS Code. The claimant’s claim was made on the basis that the respondent had failed completely to deal with his grievances but we have found that they did respond to those although (for whatever reason), at least the second one did not reach the claimant. We make no uplift for failure to comply with the ACAS Code.[116]The unfair dismissal award in total is the basic award of £650 plus the compensatory award of £9,009 making a total award for unfair dismissal of £9,659. Race discrimination[117]Compensation is for the complaint which we upheld; it is not to reflect any injury suffered as a result of things that we did not find to be acts of race discrimination. The claimant revised his Schedule of Loss in line with that, claiming £5,000 for injury to feelings, £3,000 for aggravated damages and no longer claiming damages for personal injury.[118]We accepted the claimant's evidence about how he felt about the stereotype remarks. This is reflected in the near contemporaneous record in the grievance. This made him feel uncomfortable and embarrassed. In his oral evidence (which we accept) the claimant said he felt he was a bit of a laughing stock. He felt uncomfortable afterwards and did not know what people were saying about him. Case No. 2402642/2020 17[119]We consider it likely that this incident was a contributory factor in the claimant going off work with stress and taking medication, although we recognise that this was not the only factor – the Christmas party incident we consider likely to also have contributed to his state of mind at that time. We consider that the premeditated nature of the stereotype conversation is likely to have made the injury worse – him having been told by Pete beforehand that Jackie had set him up for a “right conversation” with the young person, and then Jackie and Pete laughing about it after the claimant was brought into the conversation.[120]Although it was a one-off incident, we have to look at the impact on the claimant – it is about how that makes him feel. We consider that the injury is most appropriately dealt with in the lower Vento band but above the middle level of that band. The lower band at the time, which was for claims presented on or after 6 April 2019, was £900 to £8,800. We consider that what the claimant has sought of £5,000 for that to be a suitable award for injury to feelings.[121]However, we do not agree to award any compensation for aggravated damages. The claimant has not satisfied us that the respondent’s conduct of these proceedings has been of such a nature to merit such an award. The claimant referred to strike out applications, but the only one we have been referred to in the bundle, we note, appears to have been provoked by the claimant not having done his disclosure at that time. Even though he may have had reasons for that, given the claimant had not responded to the requests for disclosure, it was not unreasonable to make a strike out application at the time.[122]We are required by law to consider awarding interest on compensation for discrimination whether the parties have raised it with us or not, and we see no reason not to award interest in this particular case. The interest rate is 8%. That runs on an injury to feelings award from the date of the act of discrimination, which here we placed around 27 November 2019, and it runs up to the calculation date, which is today 24 October 2024. That is a period of 1,794. days. The interest calculation is 1,794/365 x 8/100 x £5,000 which arrives at an interest figure of £1,966. Breach of contract[123]The compensation for breach of contract was agreed by the parties to be a gross figure of £535.56 and that is what we have awarded.