Mr K Bonsu v Stockport Metropolitan Borough Council: 2405133/2019

EMPLOYMENT TRIBUNALS

Case No 2405133/2019

Between

Mr K BonsuClaimant

Stockport Metropolitan Borough CouncilRespondent

Before

Employment Judge Leach

Mr I Sram (instructed by Counsel) for claimant

Miss R Wedderspoon (instructed by Counsel) for respondent

Date 19 September 2024

JUDGMENT

[1]The claimant was not an employee of the respondent for the purposes of section 230(1) of the Employment Rights Act 1996 (“ERA”).

[2]The claimant's application to amend his claim to include a claim of indirect race discrimination is refused.

[3]The respondent’s application that the Tribunal strike out the claimant’s claims (or any of them) pursuant to rule 37 of the Employment Tribunals Rules of Procedure 2013 (“ET Rules”) is refused.

[4]The respondent’s application for a deposit order pursuant to section 39 of the ET Rules is refused.

REASONS

[1]This preliminary hearing was listed to deal with the following issues:(1) To determine whether the claimant was an employee of the respondent’

(2) To consider the claimant's application to amend his claim so as to bring a claim of indirect discrimination (protected characteristic of race) under section 19 of the Equality Act 2010 (“EqA”);

(3) To consider the respondent’s application for the claimant's claim to be struck out under rule 37(1)(a) of the ET Rules on the grounds that: (a) the claims are scandalous or vexatious or have no reasonable prospect of success;

(4) to consider the respondent’s application (in the alternative to 3 above) for a deposit order under rule 39 of the ET Rules on the grounds that the claim has little reasonable prospect of success.

[2]The claimant was engaged by the respondent as a casual support worker attending on vulnerable adults for whom the respondent was responsible. There is no dispute that the claimant, when so engaged by the respondent, was a worker under section 230(3) of the ERA although it is disputed that the claimant was an employee under section 230(1) ERA. There is no dispute that the claimant was protected against unlawful discrimination under Part V of the Equality Act 2010 (“EqA”).

[3]The claimant claims that he was employed by the respondent, that he was unfairly dismissed from that employment and that he was subject to unlawful race discrimination. The respondent’s position is that the claimant's claim of unfair dismissal should be dismissed at this preliminary stage of proceedings as the claimant was not an employee of the respondent under s230(1) ERA.

[4]As for the claims of race discrimination, the respondent’s position is that these claims have either no or (in the alternative) little reasonable prospects of success and therefore the claims should either be struck out or be subject to a deposit order under the ET Rules (rule 37 and rule 39).

[5]Witness evidence was provided on the issue of employment status. I heard evidence from the claimant. I also heard evidence from 2 witnesses for the respondent, being Emma Crewdson (Support Worker Bureau Manager) and Andrea Steward (Senior Service Manager within respondent HR team). Both respondent witnesses provided evidence about the respondent’s engagement of casual support workers and why the respondent says that the claimant, who was engaged as a casual support worker, was not its employee for the purposes of section 230(1) of the ERA.

[6]These Reasons deal with the issues considered at the preliminary as follows:a. A. Was the claimant an employee of the respondent?

b. B. The claimant's application to amend his claim;

c. C. The respondent’s applications for strike out/deposit orders.

[7]Reference to page numbers below is a reference to the bundle of documents used at the preliminary hearing. A. Was the claimant an employee of the respondent?

[8]As noted above, there is no dispute that the claimant was a worker of the respondent. As such there is no dispute that the relationship between the parties satisfied the three requirements of section 230(3)(b) ERA, being:(1) That there was a contract between claimant and respondent,

(2) Whereby the claimant undertook to perform personally work for the respondent, and

(3) The respondent was not by virtue of the contract, a client or customer of an undertaking carried on by the claimant. Findings of Fact Terms of Engagement

Findings of Fact

[9]The claimant was engaged by the respondent as a casual support worker in September 2005 and the claimant continued to work for the respondent until his contract was terminated in February 2019.

[10]The claimant and respondent agreed to written terms on three occasions:(1) On commencement of engagement. There is a letter dated 26/9/2005 (Letter 1);

(2) On 27 November 2008 (Letter 2);

(3) On 15 August 2014 (Letter 3).

[11]Letter 1 included the following provisions: “I am writing to confirm that you are offered a position as a casual support worker on the Stockport LD Partnership Accommodation Service Bank with effect from 19 September 2005. As a casual employee you will work on an ad hoc, irregular basis, as requested to meet the needs of the service and to cover for absences of permanent staff and temporary increases in workload. There are no set minimum hours and it should be clearly understood that there is no guarantee that work can be provided or continue.” “Your rate of pay will be based on Spinal Column Point 21, the minimum point on the salary scale for support workers. This equates to an hourly rate of £9.05 plus an enhancement for annual leave entitlement in line with the Working Time Regulations. The holiday pay you receive will therefore be proportionate to the number of hours worked on the Bank. You will not normally be entitled to occupational sick pay. Incremental progression on 1 April each year to the maximum of the scale i.e. SCP 26, will be dependent upon management support and where it can be demonstrated that you have worked regularly as a support worker on the Bank during the previous 12 months.” “You are eligible to join the local Government Pension Scheme for hours worked on the Bank and should have received a form PF2 with your Bank application form to indicate if you wish to pay superannuation contributions on the hours worked.” “If you do not have a permanent support worker contract within the Learning Disability Partnership and your only employment with the partnership is on the Bank, you will normally be required to work a minimum of six shifts over a three month period to ensure you are working safely and that your training and practice are kept up-to-date. Failure to comply with this requirement may lead to your details being removed from the Bank. You will therefore be required to undertake such training as is considered necessary by the Stockport Learning Disability Partnership.”

[12]Letter 2 – relevant extracts: “As a casual worker you will work on an ad hoc, irregular basis as requested to meet the needs of the service. There are no set minimum hours and it should be clearly understood that there is no guarantee that work can be provided or continue. Likewise, there is no onus on yourself to accept any work that is offered.” “As a casual worker you can be based at any location and you will be responsible for your own travel arrangements to and from that place of work.” “Your rate of pay will be £10.78 per hour. This includes a pro rata payment of annual leave entitlement which is £0.995 (based on the leave entitlement as set out in the Working Time Directive. Currently this stands at 24 days per annum, rising to 28 days per annum with effect from 1 April 2009).” “As a casual worker you will be required to ensure that your standards and conduct do not fall below expected standards of behaviour set out in the Council’s Code of Conduct, given at induction.” “Acknowledgement [for signature by the claimant] I acknowledge receipt of a copy of the letter relating to the casual support worker bureau. I understand that as a casual worker I am not an employee of Stockport Council and that no contractual entitlements will arise out of this arrangement other than the agreed hourly rate of pay, statutory holiday pay.”

[13]Letter 3 – relevant extracts: “I can confirm that you are registered on the Council’s pool of casual support workers. As a casual worker you will work on an ad hoc, irregular basis as requested to meet the needs to the service and to cover for absences of permanent staff and temporary increases in workload. There are no set minimum hours and it should be clearly understood that there is no guarantee that work can be provided or continue. Likewise there is no onus on you to accept any work that is offered.” “As a casual worker you can be based at any location within the Stockport Council boundary. You will be responsible for your own travel arrangements to and from work. Your rate of pay will be £10.01 per hour. However you will actually be paid £11.22 per hour because your pay is enhanced to include payment for your statutory holiday entitlement (based on the leave entitlement set out in the Working Time Directive. This is called a ‘rolled up holiday’ rate. The Council reserves the right to change this pay arrangement at any time in the future so that your holiday rate of pay may change to the amount in the previous paragraph, with a separate payment for holiday taken.” “It is your responsibility to ensure that you take your leave entitlement and that you notify the bureau when you wish to take leave. You must take at least 28 days’ holiday per year. You will not be entitled to occupational sick pay.” “Casual workers are eligible to join the local Government Pension Scheme.” “If you are prevented at any time from reporting for pre-arranged duty because of illness or incapacity you should inform the support worker bureau admin team or duty desk at the earliest opportunity prior to your arranged starting time, in accordance with the arrangements outlined to you.” “As a casual worker you will be required to ensure that your standards and conduct do not fall below expected standards of behaviour set out in the Council’s Code of Conduct and relevant bureaux. Please note that the use of mobile phones during working hours should be restricted to emergencies only.” “Acknowledgement [for signature by the claimant]

[14]I acknowledge receipt of a copy of the letter relating to the casual support worker. I understand that as a casual worker I am not an employee of Stockport Council and that no contractual entitlements will arise out of this arrangement other than the agreed hourly rate of pay and statutory holiday pay.”

[15]Letter 3 also ends: “I would appreciate it if you could confirm that you are willing to accept this offer of casual work on the terms stated, by signing and returning the duplicate copy of this letter. Please return the signed copy within ten working days. A scanned email copy would be acceptable.”

[16]Letter 3 is unsigned in the bundle. However, in evidence the claimant accepted that he had received, signed and returned a copy of Letter 3.

[17]I find that as at the date of termination the written terms applicable to the claimant were those in Letter 3. These terms replaced terms of Letter 2 which in turn replace the terms of Letter 1. Whilst it is not expressly stated in letters 2 and 3, it was clear that on each occasion the terms replaced the previous terms.

[18]Whilst I find that the terms of Letters 2 (and then 3) replaced the terms of Letter One, it is relevant that I make the following points in relation to Letter One as the terms were referred to on a number of occasions in evidence, particularly the claimant’s evidence:-a. The term “employee” was used in Letter One (although not in Letters 2 and 3). It was used in the same paragraph as a provision noting that there is no guarantee of any work. I find that the use of this term was a drafting error at the time. The respondent was clearer in its terms in Letters 2 and 3

b. There was reference to incremental progressions along a spinal column point (“SCP”) pay system applicable in local government. The evidence from the claimant and the respondent’s witnesses was that cost of living increases in hourly rates applied but there were no incremental increases on the local government salary spine. Again, I find reference to the SCP was a drafting error at the time. The reference did not appear in Letters 2 or 3.

c. There was reference to the worker being eligible to join the Local Government Pension Scheme (“LGPS”). I refer to the issue of pension below. The Respondent’s Support Worker Bureau (“Bureau”)

[19]Evidence to explain the purpose and activities of the Bureau was provided by Emma Crewdson.

[20]Effectively, the Bureau was set up by the respondent as an in-house agency. The respondent hoped to attract sufficient individuals who wished to engage in casual work, and so avoid the additional costs of sourcing casual work through an external agency. The Bureau worked specifically to assign support workers to vulnerable adults throughout the respondent Borough. Ms Crewdson provided evidence that in recent years, the respondent council has relied significantly on casual workers. This is because of frequent and significant gaps in service provided by its permanent/directly employed workforce. Ms Crewdson provided the following evidence: “The Learning and Disability Service has the most problems with staff resourcing and the highest sickness absence levels in any department of the respondent. I acknowledge that it is a difficult, physically and sometimes mentally demanding job for reasonably low pay for those who work with the service. However the respondent has a legal and [moral] obligation to its vulnerable members of the community. This means that it must be consistently dynamic in order to ensure that the respondent fulfils its legal obligations to those in the community who need round the clock care and support which the vast majority of those service users needing support from both the employed staff and the Bureau Support Team do.”

[21]Where the respondent had legal obligations to provide services to a vulnerable adult, the respondent had to fill gaps left by staff vacancies or sickness or other absences. Otherwise it would have failed to meet its legal obligations.

[22]The respondent had a process of covering gaps left by vacancies or absences:-a. It would try to cover the gaps by allocating its directly employed (permanent) care employees, in their normal working time, to work those hours.

b. If this was not possible it would offer overtime to its employees. The respondent did/does not operate compulsory overtime but overtime was an option that it offered.

c. If gaps remained then it would utilise the Bureau and see whether the hours could be covered using casual workers.

d. If all else failed then it would contact an external agency (Reed) to source and supply workers to cover the vacant hours/shifts.

[23]The claimant understood that the respondent employed contracted support workers and that they were different to the casual support workers. The claimant had applied for employment as a contracted support worker on a number of occasions although stopped applying after a number of unsuccessful applications.

[24]I find that the resourcing difficulties encountered by the respondent in relation to its permanent employees (through employment vacancies, sickness or other absences) meant that there were significant opportunities for workers on the Support Worker Bureau to be provided with work and where the respondent was unable to cover shifts via the Bureau then it would contact an external agency. The claimant was aware that the respondent employed contracted support workers and that they were on different terms to the casual support workers. The regularity of the claimant's work

[25]A record of work carried out by the claimant was provided at pages 142-245. These records covered the period from 2 January 2017 up to the termination of the claimant's engagement in February 2019. The claimant's evidence is that he was working on average over 40 hours per week. The respondent did not dispute this. It is clear from the records that the claimant was engaged throughout this period on a large number of shifts/assignments. The claimant did not give evidence that his work followed a regular pattern, whether in terms of the hours of the day that he worked or the days of the week that he worked. It is apparent from the information provided that sometimes the shifts were during the day, sometimes during the evening and sometimes required an overnight sleep. Even within each of these broad descriptions, the hours and location varied from day to day and week to week. However, in the period for which records were provided the claimant was provided with a constant supply of work. I find that he was working on average over 40 hours per week in this period. Refusal of work

[26]In its response the respondent states that between 20 December 2016 and 21 February 2019 the claimant on 506 occasions, either declined the offer of a work vacancy or voluntarily cancelled a work vacancy which had already been assigned to him.

[27]The respondent sought to demonstrate this by the provision of a report headed “Declined Vacancies for Kwame Bonsu” (pages 106-141). The claimant did not accept that he had turned down assignments on over 500 occasions.

[28]It was apparent that the majority of these occasions were not ones where the claimant chose not to work at all but ones where he exercised a choice of one assignment over another. Some examples were considered in the course of evidence. The examples used were those first ones recorded in the report, which were at the beginning of 2017:a. 6 January 2017 – the claimant had been down to undertake an assignment at Park Road. The claimant cancelled this assignment the day before (5 January 2017).

b. 10 January 2017 – the claimant undertook a morning assignment at Highfield Road and declined an assignment in the afternoon/evening at Bramhall Lane.

c. 18 January 2017 – the claimant worked on an overnight assignment from 3.00pm on 18 January 2017 to 10.00am on 19 January 2017 at Highfield Road. The claimant had been signed up for a morning assignment at Park Road but cancelled this at 3.00pm on 17 January 2017 in order to undertake his preferred assignment at Highfield Road.

[29]Although each and every entry was not considered (that would have been disproportionate), I find that this was the way that the so-called refusals operated. The majority of the 506 or so entries applied where the claimant declined work rather than cancelling work that he had already agreed to do. It is also clear (from a comparison of the record at 142 to 245 with the record at 106-141) that work declined was usually where the claimant had preferred one shift over another on a particular day. There are also a number of examples (in addition to those referred to above) where the claimant cancelled work which he had previously agreed to do.

[30]According to the records, during the period from 01/01/17 to the claimant's dismissal in February 2019 on 24 occasions he had accepted work and then cancelled this work. As noted above, on some of these occasions the claimant did so, not to avoid an assignment altogether, but to exercise his choice and to opt for a preferred assignment that he had been informed about following the acceptance of the assignment that he then cancelled.

[31]The evidence of Emma Crewdson was that shifts were sometimes cancelled by casual workers; that there was an expectation that adequate notice of a cancellation should be given and that “appropriate action” would be taken where there was a persistent pattern of cancellations. I accept this evidence. The records provided show that the claimant was able to cancel shifts already accepted. The respondent’s evidence was that it was acceptable for casual workers to do this but that the respondent would take appropriate action if there was a persistent pattern of cancellations. No evidence was provided on what the appropriate action would be in this particular circumstance but having considered all evidence provided I find that appropriate action may be:-(1) an investigation in to whether cancellations occurred in relation to a particular service user – there may be safeguarding issues

(2) a decision not to continue to provide opportunities to that casual worker. Obligation to accept work.

[32]The claimant’s evidence in his witness statement (at paragraph 9) was that he was required to accept work. In responding to questions from Miss Wedderspoon he said that he was “forced to accept shifts.”

[33]Other than by reference to a term in Letter One (I comment on this term below), the claimant provided no examples of when he was required or forced to accept shifts.

[34]Andrea Steward and Emma Crewdson provided evidence that there was no obligation on a casual worker to accept any shift offered. They referred to the terms of Letter 3 which stated that there was no onus on the worker to accept any shifts and provided evidence that this was in reality how the contracts with casual workers operated.

[35]An issue was raised in relation to the following term of Letter One:- “ ….. you will normally be required to work a minimum of six shifts over a three month period to ensure you are working safely and that your training and practice are kept up-to-date. Failure to comply with this requirement may lead to your details being removed from the Bank. You will therefore be required to undertake such training as is considered necessary by the Stockport Learning Disability Partnership”

[36]The claimant referred to this term. In his statement he accepted that this requirement was only relevant to ensuring that he was able to work safely. In responses to questions from Miss Wedderspoon on this point, the claimant said that he understood that he needed to do at least 6 shifts over a 3 month period or he would be removed. I understood his evidence to be that it was because of this clause that he was required or forced to undertake work. As noted above, he did not provide any other evidence in support of his assertion that he was required to undertake work.

[37]The evidence of Emma Crewdson was that the respondent expected casual workers to undertake training for regulatory (CQC) purposes. Her evidence was that the workers “will be trained in safeguarding matters and expected to follow safeguarding policies and procedures. In the Learning Disability Service it is crucial that the service user’s care plan in followed and is kept up to date and this will form part of the training.”

[38]Ms Crewdson answered questions from Mr Sram on this issue. She explained that care support workers (whether employed or casual workers) had to stay up to date with training required by the CQC. Some training updates are required annually, some twice yearly and some 3 times a year. Some of the training was provided whilst workers undertook shifts.

[39]I find as follows:-a. the reason why a minimum number of shifts were indicated in the 2005 agreement (Letter One) was to ensure that the worker was up to date with training for regulatory (CQC) purposes.

b. Letter 2 and Letter 3 did not have an indication of numbers of shifts to be worked to ensure that the worker remained sufficiently trained. However the requirement to ensure sufficient training remained.

c. Some of the training was “on the job” by the workers demonstrating that they understood and followed service user care plans.

d. There was not an obligation to work a minimum of six shifts over a 3 month period. This term did not appear in letters 2 or Letter 3.

e. Should a worker who was signed up with the Bureau, not have carried out any shifts at all for a period of time then Emma Crewdson or one of her colleagues may well have raised this with the worker, due to minimum training requirements. It may have meant that the respondent chose not to continue to offer shifts to the worker at least until training shortfalls had been addressed.

f. This issue did not arise with the claimant during the years that he was engaged with the respondent as he had been willing to accept a significant number of shifts offered to him. The extent of the respondent’s control over the claimant.

[40]The claimant’s evidence is that when he worked on a shift,a. all specific tasks were required to be carried out in line with the respondent’s detailed procedures

b. he had to adhere to the care plan of every service user

c. he was unable to leave a service user when working on that shift, until such time as a relief worker attended

[41]It is also clear from the evidence provided that, when he worked on a shift:-a. he was required to comply with instructions relating to the use of mobile phones

b. he was required to comply with the Council’s code of conduct (a copy of which was in the bundle)

c. he was required to undertake and maintain minimum training to accord with standard set by the CQC

[42]The evidence from Andrea Steward was that the claimant was free to engage in other work, there was no obligation on the part of the claimant to prioritise offers of work made by the respondent over other offers of work. It is also clear from the evidence (particularly the written terms) that there was no retainer or similar ongoing payment made by the respondent to the claimant. Payment would only be made for shifts which the claimant accepted and worked.

[43]I find that the claimant was controlled by a number of instructions of the respondent whilst working shifts but that there was no control exercised by the respondent when the claimant was not working a shift. Application of the respondent’s policies and procedures

[44]Fewer policies and procedures applied to the claimant and other casual workers with the Bureau than applied to the respondent’s employees. I refer below to policies that arose in evidence. Performance Development Plan (“PDP”)a. I accept the evidence of Emma Crewdson that the Bureau workers did not have a PDP. As noted above, they were required to stay up-todate with training which was a Care Quality Commission (“CQC”) requirement rather than a PDP. This was monitored for regulatory purposes but did not form part of a PDP. Employees of the respondent did have PDPs which included regular reviews with their managers. Disciplinary Procedure

b. I accept the evidence of Andrea Steward that, when complaints were received about the claimant from service users, these were investigated from a safeguarding perspective and not using the respondent’s disciplinary procedure applicable to its employees. There is evidence that complaints against the claimant were addressed but no evidence that they were addressed by reference to an employment disciplinary procedure. I accept the evidence of Andrea Steward when she states “ Managers are required to treat people fairly and to investigate any complaints or allegations of wrongdoing by a casual worker but the process is not required to be as robust and the timescales will not be the same. There is no right of appeal against any decision made to discontinue with the services of a worker but any complaint made by a former worker would be fully investigated and they would receive a response.” Holiday procedure

c. The claimant was in receipt of rolled up holiday pay (paid by the respondent in an attempt to comply with the Working Time Regulations 1998). The evidence of Emma Crewdson was that they did not ask workers to notify them when holidays are taken: if those workers volunteered that they would not be available for a period of time to work shifts then they would record that on their system. The holiday entitlement was different to that of employees of the respondent whose entitlement was established by local authority collective agreements and national terms and who were required to obtain approval for periods of annual leave they wished to take. Pension Issues

[45]As noted above, Letter One stated that the worker was eligible to join LGPS. There was no reference to pension in Letter 2 (dated November 2008). Letter 3 stated that casual workers were eligible to join LGPS and made reference to auto enrolment. Auto enrolment was discussed briefly at the preliminary hearing and it was clear that reference to auto enrolment in Letter 3 was reference to compulsory auto enrolment under the Pensions Act 2008.

[46]The claimant did not join LGPS until shortly before his dismissal and at a time when auto enrolment applied.

[47]The reference to LGPS in Letter One pre dated auto enrolment. No evidence was provided (either by claimant or respondent) about whether, as at 2005, workers ( who were not employees) were eligible to join LGPS. Mrs Steward was asked about this and did not know. Mrs Steward was able to confirm that workers (not just employees) were able to join LGPS following the introduction of auto enrolment. The Law and Submissions

[48]Section 230(1) ERA states: “In this Act ‘employee’ means an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment.”

[49]A contract of employment has to meet the minimum requirements at section 230(3)(b), being: “A contract whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

[50]These three requirements are relevant in consider whether an individual satisfies the definition of “worker”. To also satisfy the definition of “employee” additional factors need to be considered as identified by case law.

[51]Both parties referred me to the case of Readymix Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2 QB 497

. It is relevant to refer to the passage in that Judgment often quoted: “A contract of service exists if these three conditions are fulfilled:(i) The servant agrees that in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master;

(ii) He agrees expressly or impliedly that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master;

(iii) The other provisions in the contract are consistent with it being a contract of service.”

[52]It is also relevant to have regard to the following passage in the Judgment in Hall v Lorimer

[1994] ICR 218

when considering the issue of employment status: “This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail. Not all details are of equal weight or importance in any given situation.”

[53]Both counsel also referred to me other authorities, particularly in relation to looking at the reality of the relationship (rather than being confined to the contractual wording) as well as mutuality of obligation. Mutuality of Obligation

[54]Miss Wedderspoon referred me to the cases of Carmichael v National Power PLC

[1999] UKHL 47

(“Carmichael”)noting that the House of Lords in that case made clear that the existence of mutuality of obligation is the “irreducible minimum of a contract of employment”.

[55]Miss Wedderspoon also referred me to the earlier decision of Clark v Oxfordshire Health Authority

[1998] IRLR 125

(“Clark”).

[56]In Clark, the Court of Appeal was also clear that it was bound by previous authorities in relation to a minimum requirement of mutual obligations (at para 22)…” no contract of employment within the definition contained in section 153(1) of the 1978 Act [now s203(1) ERA] (whether it be given the extra statutory name “global” or “umbrella” or any other name) can exist in the absence of mutual obligations subsisting over the entire duration of the relevant period.

[57]In her submissions, Miss Wedderspoon stated that, where there are periods where no work is to be offered, then in order for there to be an employment relationship, the employer has to pay a retainer. She stated “in the absence of a retainer in periods where there is no work to be done, there will be no contract of employment between the parties.” In stating this, Miss Wedderspoon relied on the decision in Clark.

[58]The judgment in Clark (para 41) noted this: “I would, for my part, accept that the mutual obligations required to found a global contract of employment need not necessarily and in every case consist of obligations to provide and perform work. To take one obvious example, an obligation by the one party to accept and do work if offered and an obligation on the other party to pay a retainer during such periods as work was not offered would in my opinion, be likely to suffice. In my judgment, however, as I have already indicated, the authorities require us to hold that some mutuality of obligation is required to found a global contract of employment.” What terms did the contracting parties agree?

[59]Mr Sram referred me to Autoclenz Limited v Belcher & Others

[2011] UKSC 41

, noting particularly that I am not bound to consider the written terms of a contract only and should answer the question as to what contractual terms the parties actually agreed.

[60]Mr Sram also noted, in reliance on the Autoclenz decision, that I must consider whether or not the terms of the written contract represent the true intentions or expectations of the parties, not only at the inception of the contract but if appropriate as time goes by. Analysis – Applying the Law to the Facts Mutuality of Obligation

[61]There was no obligation on the part of the respondent to provide work for the claimant. The Bureau acted as an agency, filling gaps in care provision that could not be filled by the respondent’s employed workforce. If the respondent was able to fill a gap by using its employed workforce it would do so. It was not under an obligation to provide work instead to casual workers.

[62]The reality is that the respondent had to call on casual workers on the Bureau to a significant extent. However it did not do so because of contractual obligations to casual workers engaged through the Bureau.

[63]The written terms made clear that there was no obligation on the part of the respondent to provide work and I accept that this was, in reality the position.

[64]There was no obligation on the part of the claimant to accept work that was offered. He did so because he chose to, not because he was contractually obliged to.

[65]Even where the claimant did agree to carry out a shift, the claimant was able to give “back word” in relation to a shift and he occasionally did so including where another shift option that was preferable to him was offered and he chose that other option.

[66]There was a requirement that the claimant’s training was up to date if he was to remain eligible to be offered shifts. There was an expectation that the claimant would have to undertake some shifts in order that the training updates could take place. I have considered whether this amounted to an obligation on the part of the respondent to provide work for the claimant to do and an obligation on the part of the claimant to accept work offered.

[67]I have decided that it does not, for these reasons:a. Satisfying training requirements to ensure that an individual is eligible to carry out a particular type of work is a minimum requirement, whatever the relationship (employee, worker or genuinely self employed).

b. Many types of work now require ongoing continuing development training or top up training.

c. The respondent’s care workers needed to meet training requirements of the CQC. This training (or some of it) was received when the individual worker worked with service users.

d. Where an individual applies for and is accepted onto the books of an agency or a bank of casual workers (or, in the case of the respondent, the Bureau), they will intend to undertake some work at some stage (assuming some work is offered). Otherwise, they would not have applied at all.

e. The training requirements would therefore be met during those shifts that the individual worker, exercising his or her choice, decided to work.

f. Ongoing training requirements would not have been met if the worker did not work at all for long periods of time even though they were offered opportunities to work. In this case, where the worker was not engaging at all, the respondent may well have reviewed whether to retain the worker on the Bureau.

g. Training requirements would not have been met either if the respondent did not have any shifts to offer the casual worker on the Bureau. As I have already noted, my finding is that there was no obligation on the part of the respondent to provide any work to the claimant or other casual workers on the books of the Bureau. The Bureau arrangements were there to fill gaps that the employed workforce could not fill. If no shifts were offered then this would have impacted on training requirements but the training requirements did not compel the respondent to provide work if it did not need to do so. Control.

[68]Once the claimant had accepted a shift and was undertaking the work on the shift, he was obliged to comply with the respondent’s instructions including the service user plan.

[69]The respondent exercised no control over the claimant when the claimant was not undertaking a shift. He was free to decide whether to accept shifts offered; he was free to work for other organisations; he was free to prioritise the work of other organisations over any opportunities provided by the respondent. Other factors.

[70]The claimant was not subject to the employment policies and procedures of the respondent, the claimant was not subject to a PDP, there was no evidence that the claimant had a particular manager or supervisor that he reported to; no evidence of a supervisor or manager of the claimant was provided. The claimant was not integrated in to the respondent’s workforce as an employee would be expected to be integrated.

[71]The claimant was aware that he was not a contracted support worker. He gave evidence that he applied for employment as a contracted support worker position on some occasions although had not done so for a few years as he had been disheartened by unsuccessful applications. Letter 2 (2008) and Letter 3 (2014) made clear that the claimant was not an employee. The claimant was aware that he was registered to the Bureau as a casual worker and had signed and agreed to the terms of Letter 3 which made clear his status.

[72]In his submissions, Mr Sram comments that the relationship between the claimant and the respondent in practice worked out to be different (ie it became an employment relationship) to the one which the respondent intended. (By this I understand Mr Sram to refer to the intended relationship portrayed in the terms of Letter 3). I have considered this argument, having regard to the Autoclenz decision to which Mr Sram referred me. There is nothing in the facts as I have found them which is inconsistent with the terms of Letter 3. I accept, for the time period reviewed at the preliminary hearing (January 2018 to February 2019) the claimant worked on average in excess of 40 hours a week. All of this work was for the respondent. However that is not enough to show employment status. He worked these hours because he chose to, not because he was obliged to. The respondent was able to provide the claimant with enough opportunities to enable the claimant to work this many hours. The respondent did not provide the claimant with these opportunities because it was obliged to offer them to him, but because the demands of its vulnerable service users (and the respondent’s legal obligations to those service users) had to be met.

[73]My conclusion therefore is that the claimant was not an employee for the purposes of s230(1) ERA. There was no mutuality of obligation, the respondent did not exercise sufficient control over the claimant particularly between shifts and including in relation to the work that the claimant decided to undertake (it was for the claimant to choose); the claimant was not sufficiently integrated in to the respondent organisation; he was not subject to policies and procedures that the respondent employees were subject to; there was nothing in relation to how the relationship operated in practice which was inconsistent with the terms of Letter 3. B. Application to Amend the Claim

[74]At an preliminary hearing (23 August 2019), the claimant applied to amend his claim in order to include a claim for psychiatric injury. The case management orders made at that hearing required the claimant to formalise his application in writing by 6 September 2019.

[75]The formal written application was made and is at pages 43B to H.

[76]At 43A is a letter from the claimant’s solicitors accompanying the application to amend. In this letter it is noted:- “ The particulars of the claimant’s claim of indirect and direct racial discrimination are attached. Regarding the medical records of the claimant and a relevant consultants report, we are not yet in a position to provide any records or reports to the tribunal. We are taking further instructions which will inform the decision whether to proceed with the claim for personal injuries or to withdraw that claim. If latter, the need for the claimant’s medical records, at any rate for the preliminary hearing, would be obviated.”

[77]The terms “direct” and “indirect” discrimination had not been used in the original claim form or in the background document attached to it. However it is clear from the narrative in the document attached to the claim form that the case brought is one of direct discrimination only. The claimant claims that there were false allegations made against the claimant which “stem from a hatred for his racial identity” (the claimant is black and of Ghanian nationality and/or national origin). He also claims that he was treated less favourably “because of his African/black origin and ethnicity than someone of a different racial identity in his position would have been treated.”

[78]Mr Sram accepted that the claimant would need to apply to amend his claim in order to bring a claim of indirect discrimination and he made the application.

[79]Section 19 of the Equality Act 2010 (EqA) defines indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s

(2) For the purposes of subsection 1 a provision criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –

a. A applies or would apply it to persons with whom B does not share the characteristic

b. It puts or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it

c. It puts or would put B at that disadvantage, and

d. A cannot show it to be a proportionate means of achieving a legitimate aim.

[80]In order to make a claim of indirect discrimination it is necessary for a claimant to identify the provision criterion or practice (PCP) that has been applied. No PCP is identified in the claimant’s particulars at 43B to H. This was raised with Mr Sram in the course of submissions and it was apparent that there was no PCP being put.

[81]In her submissions, Miss Wedderspoon referred me to the Employment Tribunal Presidential Guidance on General Case Management (guidance note 1) and the guidance provided in the judgment in Selkent v. Moore (1996 IRLR 661).

[82]As the claimant has not set out in its written or oral application an understandable basis for an indirect discrimination claim I am unable to consider the application further. However, in applying the guidance more fully and having regard to the headings in the presidential guidance:-a. The amendment to be made. This is an application to add a new cause of action. It is not simply a minor amendment or clarification of claim.

b. Time Limits. The application was first made on 6 September 2019. Assuming that the decision to remove the claimant from the Bureau (or the bank of casual workers) is the act being complained of in an indirect discrimination claim, it is out of time. The claimant was informed of the respondent’s decision on or about 15 February 2019. ACAS was notified under the early conciliation procedure on 7 March 2019 The ACAS certificate was issued on 1 April 2019. By my calculation, the claim should have been issued by 8 June 2019.

c. The timing and manner of the application. No reasons are provided as to why the claim of indirect discrimination was not been raised until 6 September 2019. No indication of an indirect discrimination claim is recorded in the case management summary following the preliminary hearing on 23 August 2019.

[83]The application to amend the claim to include indirect discrimination (race) is refused. C. Strike Out/Deposit Order Applications

[84]The respondent applied for the claimant’s claims to be struck out or for deposit orders to apply. The application related to all claims that the claimant sought to bring.

[85]For the reasons provided above, only the direct discrimination claim remains and I have considered the respondent’s application in relation to this claim only.

[86]The basis of the direct discrimination claim is explained in the original claim form. “24 the claimant believes that the treatment suffered in his employment with the respondent is as a result of his racial/ethnic origin. The claimant is a black African. A white person in his position would not have been subjected to such a deplorable treatment, that is, a dismissal on a whim on a flimsy ground, after so many years of committed and dedicated service to the respondent.”

[87]The further particulars document (at page 43B) confirms the basis of the claim “3. C was dismissed by R on the basis of a false allegation. The contention is not that the falsity of the allegation makes the dismissal discriminatory. It is rather the readiness or uncritical acceptance of the allegations or facts as proven, without proper investigation or enquiry………. The questions put to C, the manner of questioning and the responses to C’s answers leave the reader in no doubt that the so-called investigators were not interested in C’s responses. The integrity or honesty of the accuser (a white person) had been assumed, in like manner as the dishonesty or lack of integrity of C, was accepted as a given.”

[88]In support of his claim the claimant refers to a previous incident (in 2010) when he was investigated and where it was ultimately found that he did not act as it had been alleged. This appears to be relied on as relevant background evidence although clarification on this point may be required.

[89]In its response the respondent states that the actions taken against C were appropriate for safeguarding reasons. They also point to a comparable situation involving a white care worker (referred to as BC) when they say the same action was taken. In his further particulars document, C refers to BC and states that there are a number of differences between BC’s relevant circumstances and the claimants. Strike Out.

[90]The application for strike out is made under rule 39(1)(a) of the ET rules of procedure on the grounds that it has no reasonable prospects of success.

[91]In her submissions Miss Wedderspoon noted that this presents a lower threshold than a test of “no prospects of success.”

[92]Miss Wedderspoon referred to the case of Eszias v. North Glamorgan NHS Trust

(2007) ICR 1126

(“Eszias”) The judgment in that case referred to the earlier (House of Lords) decision in Anyanwu v. South Bank Students Union

(2001) ICR 391

and the following extract from the judgment of Lord Steyn:- “ for my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of process except in the most obvious and the plainest cases. Discrimination cases are generally fact sensitive and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other bias in favour of the claim being examined on the merits or de-merits of its particular facts is a matter of high public interest.’

[93]This is not an obvious and plain case for strike out. From the information before me at this preliminary stage, it is apparent that there are significant factual disputes in relation to the direct discrimination claim, including in relation to the strength of the evidence on the safeguarding claim, a claimed assumption of wrongdoing on the part of the claimant (and reasons why a decision was reached that the claimant was in the wrong) and the circumstances concerning BC. The evidence in this case should be heard and tested at a full hearing. Deposit Order.

[94]An application for a deposit order is made, under rule 39(1) of the ET rules of Procedure on the basis that the direct discrimination claim has little reasonable prospects of success.

[95]In support of her application, Miss Wedderspoon referred me to an extract from an investigation interview (page 102), noting that even the claimant’s union representative commented that the people alerting the respondent about the claimants alleged conduct were not racist.

[96]Whilst this extract appears not to be helpful to the claimant, I have not at this preliminary stage attached any great weight to it. The extract referred to is a record of an individual’s opinion about whether or not one or more characters are racist. The opinion was dependant on what the individual considers to be racist. It was an opinion about whether there was direct discrimination against the claimant. It was not an opinion about the merits of the claimant’s case now put.

[97]I was also referred to page 103 where the union representative informs the claimant of his view that the behaviour alleged amounted to bad practice. However the claimant disputes that he behaved as alleged and in his direct discrimination claim, complains that there was no proper investigation or enquiry in to the allegations made against the claimant.

[98]As I have concluded in relation to the strike out application; evidence is in dispute and there should be an opportunity for the evidence to be heard, tested and considered at a final hearing. I am unable to conclude on the information before me, that the remaining claim (of direct race discrimination) has no reasonable prospects of success. I therefore refuse the application for a deposit order.

Introduction

[1]Did the respondent treat the claimant less favourably than it treated or would have treated an actual or hypothetical comparator in either of the above ways?

[2]Who is the real or hypothetical comparator that the claimant wishes to rely on for each act of alleged less favourable treatment? The claimant relies on the real comparators of Nick Rushton, Gary Trimble, Nicky Ballance, Bob Clayton and the hypothetical comparator.

[3]Is the less favourable treatment because of the protected characteristic of race?

[4]Has the claimant proved primary facts from which an inference of discrimination could be drawn?

[5]If the Tribunal concludes in the affirmative in 4 above, has the respondent shown that the treatment was not because of the protected characteristic of race?

[6]If the Tribunal concludes that the alleged treatment (A and B) amounted to direct race discrimination what is the appropriate compensatory remedy?

[7]In submissions the claimant’s representative confirmed that Mr Rushton, Ms Balance and Mr Trimble were being relied upon as comparators for the decision to dismiss only. Mr Rushton and the hypothetical comparator was being relied upon for all four ways in which discrimination was alleged (as stated at paragraph 5a and 5b above).

Procedure

[8]The claimant was represented at the hearing by Mr Pritchard, counsel. Mr Lassey, counsel, represented the respondent.

[9]The hearing was conducted as a hybrid hearing. The Employment Judge, the respondent’s representative, and the respondent’s witnesses, all attended at the Tribunal in-person. The other members of the Tribunal panel, the claimant’s representative, the claimant, and the claimant’s witnesses all attended remotely. The hearing room was arranged so that those attending remotely could see the respondent’s representative, the witness giving evidence, and the Employment Judge in the Tribunal room. Those present in the Tribunal room could see those attending remotely by CVP on a large screen.

[10]An agreed bundle of documents was prepared in advance of the hearing. The bundle ultimately ran to over 600 pages. The respondent added eight pages to the bundle at the start of the hearing, to which the claimant’s representative did not object. Where a number is referred to in brackets in this Judgment, that is a reference to the page number in the bundle.

[11]All of the witnesses had prepared witness statements in advance of the hearing (with the exception of Ms McNulty). On the morning of the first day of hearing, the Tribunal read the witness statements and the documents in the bundle which were referred to in those statements, as well as some pages to which the Tribunal was directed by the representatives of the parties.

[12]Prior to any evidence being called, the respondent’s representative made an application that the Tribunal should determine to be inadmissible the witness evidence of Mr Maphosa and Ms Odumoso (the claimant’s two other witnesses) as he contended that neither of their evidence was relevant to the issues to be determined. Reliance was placed upon an extract from Harvey’s on Industrial Relations and Employment Law and the authority of HSBC Asia Holdings BV v Gillespie

[2011] IRLR 209

. Each of the parties made submissions and the Tribunal adjourned to determine the application. The Tribunal found that it would not determine either of the witness’ evidence to be inadmissible. Ms Odumoso’s statement included evidence about two named comparators, which therefore did appear to be of sufficient relevance. For Mr Maphosa’s evidence the argument was more finely balanced. The Tribunal accepted that Gillespie was clearly authority for the fact that the Tribunal could exclude evidence if it was considered to be irrelevant or only marginally relevant. However, particularly noting what was said in the extract from Harvey’s provided, the Tribunal concluded that it would not exercise its discretion to exclude Mr Maphosa’s evidence at a preliminary stage, particularly as caution needed to be exercised when determining whether to exclude evidence at a preliminary stage in a discrimination claim and, in this particular case at that stage. The decision was that the evidence would be admitted (albeit the Tribunal emphasised it was not deciding that the witness’ evidence was relevant).

[13]The Tribunal heard evidence from the claimant, who was cross examined by the respondent’s representative, before being asked questions by the Tribunal. Ms Ola Odumoso, a support worker, and Mr Darlington Maphosa, a Trainee Pharmacist and casual support worker (and formerly an employed support worker), also gave evidence having been called by the claimant. They were also cross-examined by the respondent’s representative and asked questions by the panel where considered appropriate.

[14]The following witnesses gave evidence called by the respondent, were cross examined by the claimant’s representative, and were asked questions by the panel: Mr Charles Anthony Hoy, support worker and trade union representative (but not the representative for the claimant in his meetings); Ms Karen Chandler, support worker; Ms Christine Lomas, support worker; Ms Joan McNulty, trade union representative (being representative for the claimant in one of his meetings); Ms Emma Crewdson, Manager of the Support Worker Bureau; and Mr Michael Fenna, Assistant Team Manager. The arrangements for Ms McNulty differed slightly from the other witnesses as she had attended the hearing only because she had been Witness Ordered to do so (at the respondent’s request) and therefore no statement was provided for her in advance of her evidence and she was asked questions in chief by the respondent’s representative when giving evidence (before being cross-examined by the claimant’s representative).

[15]After the evidence was heard during the second and third days of the hearing, each of the parties made submissions on the morning of the fourth day. The respondent’s representative provided a written submission document in advance of the start of the fourth day which was read by the Tribunal, and each representative made oral submissions.

[16]The Tribunal adjourned and reached its decision in chambers during the rest of the fourth day and the morning and early afternoon of the fifth day. The Tribunal delivered its Judgment and reasons verbally on the afternoon of the fifth day. The claimant’s representative requested written reasons, and therefore the Tribunal provides the Judgment and reasons outlined in this document.

[17]At the end of the afternoon on the Friday, the fifth day, (after Judgment and reasons had been explained) the Tribunal proposed to determine remedy on the Monday, being the sixth day for which the case had been listed. Both representatives requested that the issue of remedy instead be adjourned and considered at a later date, after the written reasons had been provided and once the parties had been given the opportunity to consider those written reasons in more detail. In the light of the parties’ consistent view, the Tribunal adjourned the hearing and confirmed that it would be listed for a one day hearing to determine remedy (to be conducted by CVP remote video technology). Accordingly, the Tribunal has not yet determined issue six in the agreed list of issues (as reproduced above). This document addresses liability only and not remedy.

Facts

[18]The claimant worked for the respondent as a casual support worker from 19 September 2005. In his role he supported service users in the place where they lived.

[19]The claimant contended that he was less favourably treated because of his African/black origin and ethnicity in his grounds of claim (17) and identified himself as black Ghanaian in his further particulars (42). His counsel informed us in submissions that English was not his first language.

[20]We were referred in evidence to a lengthy policy for safeguarding adults at risk (502), which emphasised the importance of individuals being treated with dignity at all times (511). That policy included a procedure for responding to and reporting allegations, concerns or suspicions of adult abuse (544). That emphasised (555) that the receiver of information about a suspicion of the abuse of an adult at risk, known as the alerter, had a duty to report their concerns immediately once a suspicion, allegation or disclosure had been made. There was no dispute in this case that all support workers had a duty to be an alerter. The policy also contains a detailed procedure once an alert has been raised. There was an obligation for such matters to be clarified and the facts established.

[21]The Tribunal was provided with some evidence about historic issues which had occurred during the claimant’s engagement. The respondent’s case was that the decision reached to cease providing him with shifts on the Bureau arose only from the events of 28 January 2019 (and the subsequent meetings). As a result, the Tribunal has not needed to consider further those historic matters. 28 January 2019

[22]On 28 January 2019, the claimant was engaged to support a specific service user at the residence in which the service user lived on a shift from 3 pm to 10 pm. For reasons of confidentiality the Tribunal will not refer to the service user by name or indeed in any way which may mean that he can be easily identified from the Tribunal’s Judgment. The claimant had supported that service user in a support worker role since 2005 and knew the service user well. The service user was a vulnerable adult, who was supported on a one to one basis by a support worker. He has, amongst other things, downs syndrome, a learning disability, and onset dementia. Mr Fenna described the service user as a very sociable man who loves going out and spending time with other people. Both the claimant and Mr Fenna explained that he enjoyed spending time in the communal area. Mr Fenna described him as having a good sense of humour and will often laugh, wink, smile and give the thumbs up to people.

[23]The Tribunal was provided with a copy of the service user’s care plan which described his complex needs and the risks associated. It was also provided with information about his dietary needs. Amongst other things, the care plan recorded (419e) that his coat and bag should not be left on show for him to see, as this would lead to the service user believing he would be going out – something he enjoyed and wished to do more frequently. The Tribunal also noted (419c) that the care plan identified: the need for staff to follow a consistent approach (419g); the need to firmly outline clear boundaries; the importance of routine (419f); addressed the benefits of the use of auditory stimulation; and addressed also included elements on techniques of re-direction (419l). There was some dispute about the care plan for the service user and the adherence to it. The claimant’s evidence about what was in it, differed from what the document recorded. Mr Maphosa’s evidence was that care plans were only updated periodically and that the practice on the ground might differ slightly from what the care plan document recorded. The Tribunal also accepted that, on occasion, the interpretation of what is said in a care plan may differ.

[24]What occurred at the start of the claimant’s shift on 28 January 2019 was an issue in dispute between the parties. It was not in dispute that the claimant arrived five minutes late for his shift. The claimant’s account

[25]The claimant’s evidence was that an agency personal support worker was with the specific service user in the communal lounge. His evidence was that Ms Mathuthu was also in the lounge, as was another unnamed female support worker who was a permanent member of staff. His evidence was that there were no other persons in the communal lounge and, in particular, Mr Hoy was not there. After accepting items by way of hand over from the agency personal support worker, the claimant’s evidence was that he asked the specific service user to go to his flat, so that he could do the mandatory checks (that is the checks required to be undertaken for all service users during a shift). The claimant’s evidence was that he tried to persuade the service user by saying “let’s go to your room, I’ll give you some crisps, coke and put music on”. This was unsuccessful. The claimant said he asked Ms Mathuthu to watch over the service user while he collected coke and crisps from the service user’s flat. When the claimant returned, and after giving the service user the coke and crisps, the service user still declined to move, and so the claimant collected the service user’s coat from the flat and told the service user that he would take him out after he had done the hand over checks. The service user followed the claimant to the flat. The claimant did the checks, which he emphasised were important (the checks related to finances, medication, diaries, clothing and the need for shopping). As it was raining when the checks were completed, the claimant told the service user they would need to wait until it stopped raining before they could go out. The trip was ultimately postponed due to rain and then the need for the claimant to have tea at the required time. The respondent’s account

[26]Mr Hoy, Ms Chandler and Ms Lomas all gave evidence which conflicted with the claimant’s evidence. Their evidence was that they were together in the communal lounge on 28 January 2019, sat together with the service user, when the claimant arrived. Mr Hoy had taken responsibility for the service user from the personal support worker fifteen minutes prior to the start of the claimant’s shift, as Mr Hoy was employed that day as Building Cover, providing general support to the residents and covering other staff members when required. The evidence of the three was that the first thing the claimant said to the service user was “come”. Mr Hoy’s evidence was that he explained to the claimant that the service user had a cup of tea, was enjoying the company of others, and was fine where he was until he was happy to leave.

[27]On the respondent’s witnesses’ account, the claimant then left and went to the service user’s apartment and returned with a packet of his favourite crisps. The claimant went to hand the crisps to the service user, but the evidence of the respondent’s witnesses was that, as the service user went to take them, the claimant pulled them away. Mr Hoy said that he challenged the claimant’s behaviour. The claimant then revisited the apartment, returning with the service user’s coat and asked the service user if he wanted to go out. The service user stood up and the claimant put one of his arms in his coat and wrapped the rest of the coat around him before walking him out of the communal area. Mr Hoy noted later that the service user did not leave his apartment again during the shift (which was recorded in the service user’s diary and was not in dispute). All three of the respondent’s witnesses explained in their evidence why they believed this was concerning and inappropriate in their view. Mr Hoy also stated that it was well known that the claimant often took the specific service user to his apartment and he didn’t come out again for the remainder of the claimant’s shift. Ms Chandler’s evidence was that whenever the claimant was working as his care worker, the service user would not be seen during the shift. The contrasting accounts

[28]In his evidence, the claimant emphasised very strongly that he believed those who made and supported the allegation were lying because the three named people who made the allegations (and gave evidence at the Tribunal hearing) had not been present in the lounge at the start of the relevant shift. It was never explained how the claimant believed that those who gave the accounts could have been aware of parts of the claimant’s and the service user’s interactions at the start of the shift on 28 January 2019, it not being in dispute that crisps had been collected from the apartment and used unsuccessfully to persuade the service user to return to his flat, and that, ultimately, the service user’s coat had been used. Where the accounts differed most significantly was in the manner in which the claimant approached the service user and the way in which the crisps and the coat were used, with the respondent’s witnesses describing a coercive approach to the service user, which they stated to be undermining of his dignity.

[29]For the purposes of the issues which it needs to find (as outlined in the list of issues), it is not necessary for the Tribunal to determine what occurred on 28 January 2019. This was confirmed by each party’s counsel during their respective submissions. Events after 28 January 2019

[30]In early February 2019 Mr Fenna spoke to Mr Hoy, as he understood that he wished to raise an issue. When Mr Fenna initially spoke to Mr Hoy, Ms Lomas was also present and expressed her views about what had occurred, saying it was disgusting. Mr Fenna asked Mr Hoy to provide a statement about what had occurred. On 13 February 2019 Mr Hoy emailed Mr Fenna and provided an account of the events, reflecting that given in evidence to the Tribunal by him (261). The email started by explaining that it was given “as requested”.

[31]In the light of the policy’s emphasis on the need to report matters immediately, there was a notable delay between the events and Mr Hoy providing his statement by email. In cross-examination and when challenged about the delay in providing the statement, Mr Hoy apologised and confirmed that it should have been provided more quickly. Mr Fenna’s delay was also contrary to policy. The Tribunal finds that the delay in providing the statement, in part, reflected the lack of seriousness with which the issue was viewed. If the events had been viewed as serious abuse, the statement would have been provided more quickly. The delay may also have impacted upon recollections. The investigation and 15 February 2019 meeting

[32]In an answer to a question in cross-examination, the claimant agreed that, once the report had been made, the respondent did have a duty to investigate it.

[33]The claimant’s undisputed evidence was that he received a call from Ms Crewdson when working about a week after the 28 January shift. She requested a chat in relation to the 28 January shift. The claimant asked “what have I done?”. He was told it was not a safeguarding issue and there was nothing to worry about.

[34]On 15 February the claimant was interviewed by Mr Fenna and Ms Crewdson. The claimant’s evidence was that he went to the Bureau office not knowing what the issues were.

[35]Mr Fenna’s evidence to the Tribunal was that he made a professional judgement prior to 15 February meeting. He had spoken to Mr Hoy, who he clearly considered to be a trustworthy employee, and he believed him. He was also aware that three people had said the incident had taken place. He accepted that he had formed the view that it was highly likely the events had occurred as alleged, prior to meeting with the claimant. In his view, the meeting was an opportunity to help, as it gave the claimant the opportunity to understand what had occurred. Mr Fenna’s evidence was that if the claimant had been a contracted worker (that is an employee), the process would have been different. Mr Fenna said that his aim in the 15 February meeting, was to support the claimant to reflect.

[36]Aside from the statement from Mr Hoy, no other statements were provided to the Tribunal from the internal investigation. The evidence from Ms Lomas and Ms Chandler was confused in terms of whether they provided statements at the time, but Mr Fenna’s clear evidence was that they did not do so. In answering questions in the Tribunal, Mr Fenna referred to the fact that taking written statements would have extended the process, and he believed the outcome would probably have been the same.

[37]There was CCTV in the lounge where the events occurred. That CCTV was not viewed as part of the internal process, nor was it shown to the Tribunal. Mr Fenna’s evidence was that it was never used for these type of matters (and he said it was only used on occasions such as when the Police were involved). No relevant policy was shown to the Tribunal.

[38]The Tribunal was provided with notes of the interview on 15 February 2019 (257). The notes are headed “Fact finding meeting”. The Tribunal finds that the meeting was in no real or genuine sense a meeting which had been arranged to, or endeavoured to, find the facts. Mr Fenna, as he confirmed in evidence, had already determined his view about what had occurred before the meeting started. That is, he had decided that he believed the account of Mr Hoy. The meeting was one which gave the claimant the opportunity to apologise for what it had already been determined had occurred, it was not one to find out what occurred.

[39]Ms McNulty’s evidence was that the respondent differed from other engagers of casual workers by undertaking a fact-finding process before making decisions to cease using casual workers.

[40]The notes record that, at the start of the interview, the claimant was shown the statement made by Mr Hoy. It wasn’t entirely clear whether or not he was shown the full email, but both Ms Crewdson and Mr Fenna’s evidence was that Mr Hoy’s name appeared at the bottom of the statement shown to the claimant. The claimant said that he did not see the name (which is clear from the questions he asked in the meeting).

[41]The first thing the claimant asked on 15 February was “who said I did this?”. It was explained that another two people had said the same thing. The claimant emphasised that he needed to do all his checks at the start of the shift. After some discussion, Mr Fenna said to the claimant (258) “you are defending these things like they didn’t happen and I’m confident that this did happen as they are facts and not opinion. They are on an official email as facts. You need to think very carefully about what happened and why you are here". The claimant responded that he didn’t deny that he took the service user drinks and crisps and explained he had been “in charge”, something he then asked to be disregarded when the phrase was challenged (as the role was one of support). Following this part of the discussion, Mr Fenna challenged the claimant to explain what the role of support meant.

[42]When asked what he had done wrong, the claimant explained that he had told the service user that they were going out when they didn’t. Mr Fenna responded (258) “I want you to understand, I would want you to think that you’d made a mistake, read it again”. The claimant denied saying “come” as alleged. Mr Fenna than told the claimant that he was not doubting the statement made (by Mr Hoy) because it was very specific and therefore explained that he wanted the claimant to see what he had done. He stated that he wanted him to understand the mistakes he had made and wanted to be sure that the service user was safe in the future.

[43]Later in the meeting Mr Fenna said “If this is how you do your job, after all these years, then you do your job wrong. You shouldn’t be justifying what you’ve done wrong, you should be looking at yourself, this is disgusting behaviour”. The claimant responded that he understood what Mr Fenna had to say. Mr Fenna responded that it worried him that he was coming to that conclusion fifteen minutes after the start of the meeting. He explained that the claimant’s role was under threat.

[44]There was a discussion in the meeting about the need for checks. Mr Fenna is recorded in the notes as stating that they could be done at any time in the seven hour shift. In the evidence before the Tribunal there was a difference in the evidence about the checks: the claimant and Mr Maphosa said that checks must be undertaken at the start of the shift (they believed they were mandatory); Mr Hoy stated that the claimant could have left the service user with him in the communal area and undertaken the checks in the flat; and Mr Fenna’s evidence was that the checks could be done at any time during the shift and, indeed, that the wishes of the service user were the most important thing, and what they wanted to do (such as remaining in the communal area) should not be overridden by the need for checks.

[45]The notes (259) record the claimant as having apologised. He said he was “sorry”, and stated: ”it won’t happen again when I’m on shift”.

[46]The respondent submitted that the claimant did not show any remorse in this meeting. Based upon what is recorded in the notes, that was not correct as the notes record him as having apologised. What the claimant did not do in the meeting, however, was to show any insight or learning from the incident. His focus was on challenging the account, and questioning who had made the complaint. The Tribunal does find that was not the response which Mr Fenna was seeking from the claimant.

[47]The Tribunal also find that Mr Fenna in the meeting on 15 February was critical of the claimant for his responses to the questions asked, based upon the precise terminology used (in charge rather than servicing or responsibility for). Events following 15 February meeting and the outcome/decision

[48]On 18 February (263) Mr Fenna sent the notes of the meeting to his manager Mr Bentley (and one other), copied to Ms Crewdson. The brief email included the following: “Sadly the minutes speak for themselves”; “he was unable to present any evidence of any value base”; “From my point of view, which I believe Emma would support, There was negligible acceptance of any wrongdoing from” the claimant; “I have serious reservations about the suitability as a support worker on the bureau”.

[49]Mr Bentley responded by email later on the same day (264) “Having had the discussion before and now reading the attached I am definitely in the mind we no longer use [the claimant]”. Both Ms Crewdson and Mr Fenna in evidence confirmed that they were part of the decision, but Mr Fenna’s evidence was that the decision was ultimately Mr Bentley’s. The respondent submitted that the decision was made between the three individuals. The Tribunal did not hear evidence from Mr Bentley.

[50]The claimant also gave evidence that he spoke to others between the meetings. One of the other staff told him that the people who had raised the complaint were Ms Chandler and Ms Lomas. The claimant also spoke to Mr Maphosa and was told by him that white workers were trying to find a way to remove him. 21 February 2019 meeting

[51]A further meeting took place with the claimant on 21 February 2019. The meeting was attended by the claimant, Ms McNulty (his trade union representative), Mr Fenna and Ms Crewdson. Ms McNulty’s evidence was that she met with the claimant briefly prior to the meeting and he was antagonistic when they first met. She was not provided with any documents prior to the meeting.

[52]The Tribunal was provided with notes from the meeting (265) which described it as an “Outcome meeting”. Ms McNulty’s evidence was that the notes were a reasonable representation of what said in the meeting. When the meeting commenced, Ms Crewdson explained that the investigation was concluded (as the claimant had been told on the phone) and the outcome was that the respondent would not be offering the claimant work on the Bureau anymore.

[53]The notes record Ms McNulty as being provided with a copy of the statement and the notes of the previous meeting, during the 21 February meeting. In the Tribunal, Ms McNulty confirmed that she had been provided with the email containing the statement of Mr Hoy, but could not recall seeing the notes of the previous meeting.

[54]The notes of 21 February meeting record the claimant’s initial response as being to assert that this was racial discrimination. He stated he knew the two people who complained. In evidence to the Tribunal the claimant explained this was Ms Chandler and Ms Lomas. He stated in the meeting that they weren’t there. He said “This is racial hatred”. Mr Fenna replied “I am not questioning the integrity of the alerters”. Ms McNulty, that is the claimant’s trade union representative in the meeting, stated that “no-one at [the particular location] is racist”. The notes record that the claimant subsequently shouted. The claimant questioned what he had done wrong, and denied that staff had raised the issue at the time. He stated it was “all lies, you are planting something”. Ms McNulty is recorded as saying that she could assure him that was not what happened.

[55]Ms McNulty, told the claimant that what she had read was bad practice and described it as “carrot and stick”. She asked if he would be put on the register. She said that she had sat in meetings with the Bureau and contracted staff over the years, and people had been removed for less.

[56]Ms McNulty’s evidence to the Tribunal was that the claimant was shouting and at one point in the meeting he stood up and she found him quite intimidating.

[57]Towards the end of the 21 February meeting, the claimant said that those raising the complaint weren’t present in the lounge and he said that Ms Mathuthu was there.

[58]As the outcome had been confirmed at the start of the meeting, what was said in the meeting did not in practice have any bearing upon why the decision to cease using the claimant was made. Events following 21 February meeting

[59]Following the meeting, Ms McNulty’s evidence was that she would normally have spoken to her member about what had occurred. Her evidence was that the claimant left the meeting and left her there with Mr Crewdson and Mr Fenna, so she was not able to do so. At some point following the meeting the claimant visited the Union offices and spoke to Ms McNulty, when he completed the forms to be sent to the regional office so that he could be advised by someone with more experience of discrimination issues.

[60]The claimant’s evidence was that he put in a letter of appeal, but no appeal letter was provided by either party, and the respondent gave no evidence that he had done so.

[61]Following 21 February meeting, no one spoke to Ms Mathuthu. There was no Statement from Ms Mathuthu provided to the Tribunal. Ms Mathuthu did not give evidence. She was not called by either party.

[62]Nothing whatsoever was done in response to the claimant’s allegation of race discrimination. This is something which has been considered carefully by the Tribunal. It would have expected those attending the meeting to have considered such allegations to be potentially very serious and to have taken some steps after the issues were raised. Witnesses

[63]Mr Maphosa’s statement included no evidence about any of the comparators relied upon by the claimant. The Tribunal found his evidence to be informative about the feelings of black workers and, in particular, the black workers engaged by the respondent as casual support workers. It was clear from his emails and evidence, that he had identified a number of workers who felt it was beneficial to join together with him to raise issues about how black workers believed they were treated. There were twenty four names listed as being those engaged with Mr Maphosa in raising concerns (456c). After he met with the relevant managers, an action plan was identified (456f).

[64]An element of Mr Maphosa’s evidence, which the Tribunal also found to be relevant, was his explanation about how he perceived that agency support workers were not fairly treated in comparison to contracted employees. This adversely impacted statistically upon a significant proportion of those engaged by the respondent; the evidence being that a substantial proportion of the casual agency workers were black (457), whereas a very small percentage of the contracted employees were black (458). Mr Maphosa particularly highlighted that those casual support workers for whom English was not their first language sometimes struggled to advocate for themselves in meetings (such as fact finding meetings) and sometimes did not have the language skills to address nuances in the correct terminology when addressing issues around service users. He gave this evidence about some of the black workers, but illustrated his point by referring to Polish workers who he believed had often been in the same position. The evidence of Ms Crewdson, which was corroborated by Mr Maphosa both in emails and in his evidence before the Tribunal, was that things had changed at the respondent (he believed following his meeting with management) and the evidence before the Tribunal was that the respondent had taken steps to engage more workers as contracted employees and this has resulted in some improvement in addressing the statistical inequality of black workers between those employed and those engaged as casual support workers on the Bureau. The last email from Ms Maphosa, sent on 23 November 2020 before a change in role, thanked the correspondent at the respondent for what she had done in a short time (458h).

[65]Ms Odumoso’s evidence about named comparators, provided the Tribunal with little assistance as from her answers in cross-examination it was clear that her evidence was not based upon a detailed understanding of what had occurred in other cases. It was also her evidence that she had never worked at the residence where the events of 28 January 2019 occurred. Her evidence did, however, provide the Tribunal with an account of a black workers experience whilst working for the respondent.

[66]The Tribunal gave little weight to the evidence of Ms Lucas and Ms Chandler in the absence of any contemporaneous statements obtained as part of the internal investigation and in the light of the confusion in their evidence about whether statements had been prepared at the time. In practice, their evidence was relevant to the issue which the Tribunal did not need to determine – that is what occurred on 28 January 2019. The Tribunal accepts Mr Fenna’s evidence that he believed there were two others who corroborated Mr Hoy’s account (and who they were), whilst noting the absence of any attempt to take statements from them as would appear to have been the appropriate approach in accordance with the respondent’s safeguarding procedure.

[67]Ms McNulty attended the Tribunal as a result of being witness ordered to do so. The respondent submitted that her evidence, and what she said in 21 February meeting, had additional significance and should be afforded additional weight, as a result of who she was (that is the claimant’s trade union representative and someone released by the respondent on secondment to undertake trade union duties full time). Her evidence was that she did not believe that there was any race discrimination at the claimant’s place of work and she explained that she would be the first person to call any racism out. She thought the claimant’s actions with the service user, as reported by Mr Hoy, were wrong. In answer to a question from the Tribunal, she said that she thought that what was alleged was something which she expected to result in the end of his engagement on the Bureau, based upon her experience of being a support worker in the past and what she would expect the respondent to do in the light of what was alleged. The Tribunal has carefully considered both her evidence and what she said in the meeting on 21 February. The Tribunal does not understand why a trade union representative would not endeavour to understand more about her member’s complaint of race discrimination when it was raised, rather than telling her member that there was no such discrimination. The Tribunal also notes that Ms McNulty’s evidence about the experience of black workers within the respondent’s Learning Disability service, was not consistent with the experience evidenced by Mr Maphosa and Ms Odumoso, suggesting a lack of understanding of those issues. Ms McNulty did emphasise that she was not a person with experience of addressing issues of race discrimination. In the light of her responses to what was said by the claimant in the meeting and the other factors identified in this paragraph, the Tribunal has given little weight to Ms McNulty’s evidence. The Tribunal did not find her to be someone who demonstrated any awareness of, or genuine understanding about, potential race discrimination.

[68]Ms Crewdson in her evidence said that she believed the complaint because it was from a very experienced member of staff who she believed. When explaining the outcome and decision made regarding the claimant, she emphasised what she perceived to be his lack of understanding and her view that he had no awareness of what he had done wrong. The latter was consistent with the evidence of Mr Fenna, who also emphasised that a key component of the outcome and the decision, was that he believed that the claimant had no understanding of why the approach he had taken with the service user (including as explained in the meeting) was wrong. Comparators and others Ms Ballance

[69]The claimant gave no evidence personally in his witness statement about Ms Ballance. Ms Odumoso’s evidence was that Ms Ballance was dismissed, but was reinstated on appeal. Mr Fenna gave evidence about Ms Ballance. In summary, Ms Ballance was summarily dismissed for an incident involving a service user which was found to be gross misconduct. She appealed and was reinstated following the decision of the Members Appeal Committee (with a final written warning being substituted). Ms Ballance was an employee and not a casual support worker and therefore the respondent’s Employee Relations Policy applied to her. Mr Clayton

[70]Mr Clayton was a casual support worker, for whom an allegation was made involving a service user. Both Ms Crewdson and Mr Fenna gave evidence that he was removed from the Bureau/not offered work in the future after the incident. The Tribunal was provided with notes of his fact finding meeting (242) and an outcome letter of 7 August 2018 (253). The decision was that Mr Clayton was removed from the Bureau on 21 August 2018, following the safeguarding investigation. Mr Rushton

[71]Mr Rushton was a casual support worker engaged by the respondent. The claimant alleged that he was not dismissed after serious safeguarding issues.

[72]Ms Crewdson gave evidence about Mr Rushton. The Tribunal was also provided with notes of fact finding meetings conducted by a Ms Pickering on 27 March 2013 (196) regarding a medication error, and by a Ms Wren on 12 August 2014 regarding Mr Rushton oversleeping when undertaking a sleep in shift (that is he started late in working with the other staff to support the service users in the morning). Ms Crewdson’s evidence (which was consistent with the notes of the meeting) was that Mr Rushton self-reported, realised the practice issues and confirmed he understood the concerns raised, with the medication errors. Mr Rushton completed training before being allowed to work single shifts again. The notes of the meeting regarding oversleeping, show that this was an error and not a deliberate action and Mr Rushton acknowledged wrong-doing and was advised to ensure that he had a good alarm to avoid oversleeping in the future. In both cases, the notes demonstrate a fact finding meeting which was conducted in an open and fair way, with facts being obtained without undue pressure, and with the responses provided being discussed with the individual. Mr Trimble

[73]Mr Trimble was a contracted employee. The claimant alleged that he was neither suspended nor dismissed after an incident involving a service user absconding. Mr Fenna gave evidence about Mr Trimble and the Tribunal was shown the strategy meeting notes from a safeguarding strategy meeting (230). Mr Fenna’s evidence was that when the service user absconded there were several other support workers who were on site who could have prevented the incident. He also distinguished that incident from issue considered for the claimant, as it involved an oversight in which responsibility was acknowledged. Mr Ellis

[74]In his evidence the claimant contrasted the conduct of Mr Fenna in meetings with the claimant, with his conduct in other meetings (with white workers) such as that with Mr Ellis. The claimant says Mr Fenna would have spoken to the claimant in a more polite and sympathetic manner if he had been white. Mr Ellis was a casual support worker who was removed from the Bureau on 8 October 2020 after he had left his sleep in shift to go home and sleep. The Tribunal was provided with the notes of the fact finding meeting conducted with him on 5 October 2020 (458e) and the decision letter (458g). That meeting was conducted by Mr Fenna and Ms Crewdson. The notes record a meeting which began with open questions and what appeared to be an even-handed approach to obtaining Mr Ellis’ account. Later in the meeting (458f), Mr Fenna is, however, recorded as saying “This job holds a great deal of responsibility and your judgement is totally off. You have accepted responsibility, it’s pretty obvious that your actions should have been hugely different. You have put 2 and 2 together and got it wrong”. That is, Mr Fenna made clear his views during the meeting. At the end of the meeting Mr Ellis was told that he would be informed of the outcome, which was that he would be removed from the Bureau.

The Law

[75]The claimant claimed direct discrimination because of the protected characteristic of race. The claimant relied upon four named comparators and also a hypothetical comparator.

[76]Section 13 of the Equality Act 2010 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.”

[77]Section 39(2) of the Equality Act 2010 provides that an employer must not discriminate against an employee. It sets out various ways in which discrimination can occur in the employment context, which includes the employer dismissing the employee or subjecting the employee to any other detriment.

[78]In this case, the respondent will have subjected the claimant to direct discrimination if, because of his race, it treated him less favourably than it treated or would have treated others. Under Section 23(1) of the Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. The requirement is that all relevant circumstances between the claimant and the comparator must be the same and not materially different (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

). It is not a requirement that the situations have to be precisely the same. The existence of a different decision maker does not prevent the comparison being a valid one (Olalekan v Serco Ltd

[2019] IRLR 314

). Neither party relied upon any specific case law regarding when there would, or would not, be a material difference between otherwise comparable circumstances.

[79]Section 136 of the Equality Act 2010 sets out the manner in which the burden of proof operates in a discrimination case and provides as follows: “(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But sub-section (2) does not apply if A shows that A did not contravene the provision”.

[80]In short, a two-stage approach is envisaged (for which the respondent relied upon Constable of Hampshire Constabulary v Bullale

[2012] EWHC 1549

as authority). The two stages are: i. at the first stage, the Tribunal must consider whether the claimant has proved facts on a balance of probabilities from which the Tribunal could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination. This can be described as the prima facie case. However, it is not enough for the claimant to show merely that he has been treated less favourably than those identified or than he hypothetically could have been (but for his race); there must be something more. ii. The second stage is reached where a claimant has succeeded in making out a prima facie case. In that event, there is a reversal of the burden of proof: it shifts to the respondent. Section 123(2) of the Equality Act 2010 provides that the Tribunal must uphold the claim unless the respondent proves that it did not commit (or is not to be treated as having committed) the alleged discriminatory act. The standard of proof is again the balance of probabilities. However, to discharge the burden of proof, there must be cogent evidence that the treatment was in no sense whatsoever because of the protected characteristic.

[81]The respondent emphasised that the initial burden of proof is on the Claimant to show facts from which an inference of discrimination can be drawn (Ayodele v Citylink Ltd

[2017] EWCA Civ 1913

). The respondent also highlighted that simply because a claimant insists that the treatment is disadvantageous is not enough; it is a determination for the Tribunal, for which it relied upon Burrett v West Birmingham Health Authority

[1994] IRLR 7

[82]In Johal v Commission for Equality and Human Rights

UKEAT/0541/09

the Employment Appeal Tribunal summarise the question as follows: “Thus, the critical question we think in the present case is the reason why posed by Lord Nicholls: “Why was the claimant treated in the manner complained of?””

[83]In Hewage v Grampian Health Board

[2012] ICR 1054

the Supreme Court approved guidance given by the Court of Appeal in Igen Limited v Wong

[2005] ICR 931

, as refined in Madarassy v Nomura International PLC

[2007] ICR 867

. In order for the burden of proof to shift in a case of direct race discrimination it is not enough for a claimant to show that there is a difference in race and a difference in treatment. In general terms “something more” than that would be required before the respondent is required to provide a non-discriminatory explanation. Mummery LJ stated in Madarassy: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”

[84]The respondent in its written submissions relied upon an extract from the decision of the Employment Appeal Tribunal in London Borough of Islington v Ladele

[2009] IRLR 154

(upheld in the Court of Appeal) which set out the following commentary on direct discrimination claims: ''The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport

[1999] IRLR 572

, 575— “this is the crucial question”. He also observed that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p 576) as explained by Peter Gibson LJ in Igen v Wong

[2005] EWCA Civ 142

[2005] ICR 931

[2005] IRLR 258

paragraph 37.

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test, which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong.…

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. …

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC

[2007] EWCA Civ 32

[2007] IRLR 259

paragraphs 28–39. …

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford

[2001] EWCA Civ 405

[2001] IRLR 377

esp paragraph 10.

(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ahsan

[2008] IRLR 243

[2008] 1 All ER 869

… paragraphs 36–37) …''

[85]Both parties placed reliance upon Efobi v Royal Mail Group Limited

[2019] IRLR 35

. The second stage of the test only comes into play if the claimant has satisfied stage one. For the second stage, the respondent is required to show that he did not do the unlawful act. The respondent emphasised that the burden cannot shift to the respondent simply because there is a difference in treatment, relying upon Madarassy v Nomura International plc

[2007] IRLR 246

CA.

[86]The respondent also highlighted that the respondent behaving unreasonably or unfairly would not, by itself, be enough to shift the burden of proof, relying upon Bahl v The Law Society

[2004] IRLR 799

. Zafar v Glasgow City Council

[1998] IRLR 36

is also authority for the fact that unfair or unreasonable treatment by an employer does not of itself establish discriminatory treatment.

[87]The Tribunal noted what was said by Lord Browne-Wilkinson in Glasgow City Council v Zafar: “Claims [of race and sex discrimination] present special problems of proof for complainants since those who discriminate on grounds of race or gender do not in general advertise their prejudice”

[88]The claimant’s representative in submissions relied upon Amnesty International v Ahmed

[2009] IRLR 884

. In that case it was held that: “In other cases—of which Nagarajan is an example—the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie by the “mental processes” (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant” Conclusions – applying the Law to the Facts

[89]In reaching its decision the Tribunal first considered the allegations as they applied to each of the named comparators, before going on to consider the allegations based upon a hypothetical comparator. Ms Ballance and Mr Trimble

[90]Both Ms Ballance and Mr Trimble were employed under an employment contract and were not casual support workers. For both comparators what the claimant ultimately alleged was only that he was less favourably treated by being dismissed. The contractual and statutory rights which apply to employees differ significantly to those which apply to casual support workers and it was very clear from the evidence that the respondent approached the dismissal of employed staff very differently to the way in which it approached, and made, the decision to cease giving shifts to casual support workers. In those circumstances, the difference in status or engagement is a relevant and material difference between the claimant and these two named comparators, when considering the alleged less favourable treatment of dismissal. That comparison is not one which is like with like.

[91]The Tribunal finds that the relevant circumstances when comparing the claimant with both of these named comparators was materially different, so a valid comparison cannot be made. In addition, in Ms Ballance’s case, the precise difference only arose because she was employed and not a casual support worker. That is, Ms Ballance was, like the claimant, dismissed for the issue identified. The difference in treatment arose from her reinstatement on appeal. Whether or not the claimant appealed, he was not reinstated. However, the procedure under which Ms Ballance appealed and the method by which the appeal was considered (a panel of elected members independent of the line management structure), was something which applied to her as an employee and not to the claimant as a casual support worker. That difference is relevant and material and means the circumstances were clearly such that a valid comparison cannot be made as required by section 23(1) Employment Rights Act. Mr Clayton

[92]Mr Clayton was also identified as a named comparator only in respect of the dismissal. Mr Clayton was a casual support worker who the respondent ceased to offer further shifts to. That is, he was treated in exactly the same way as the claimant by being dismissed. The claimant was not treated less favourably than Mr Clayton. Mr Rushton

[93]Mr Rushton was the named comparator upon whom the claimant relied in alleging that he had been treated less favourably in all four respects (decision to instigate the investigation, conduct of the investigation, outcome of the investigation, and dismissal). He had also been a casual support worker. The Tribunal was shown evidence of two issues raised with Mr Rushton. Fact finding meetings were conducted for both allegations. Mr Rushton remained on the Bureau and was able to work shifts after the outcome of each of the investigations.

[94]There was no evidence presented to the Tribunal which showed that the claimant had been treated less favourably than Mr Rushton in the instigation of the investigation (in respect of either of Mr Rushton’s investigations).

[95]The first investigation concerning Mr Rushton arose from a medication issue. What was clear from the interview notes provided, is that Mr Rushton had selfreported the issue and was apologetic and contrite about what had occurred. He identified learning points and took responsibility for the error. When considering the conduct and outcome of the investigation and the decision made following the investigation, the Tribunal finds that the circumstances were materially different and therefore a comparison cannot be made. Where Mr Rushton raised the issue himself and apologised for it, the circumstances were materially different and that was relevant to how the investigation was conducted, as well as its outcome and the decision made. Even had the Tribunal not found that the claimant was unable to rely upon Mr Rushton as a comparator because the circumstances were materially different, the Tribunal would have found that the respondent had proved a reason for the difference in treatment other than race. The respondent’s evidence placed significant emphasis on contrition and learning from mistakes, something which it was perceived the claimant had not shown. Those were the reasons why Mr Rushton was treated differently (in respect of the medication).

[96]The second investigation concerning Mr Rushton arose because he overslept during a sleep in shift and was late commencing work with service users in the morning of his sleep in shift. The Tribunal finds that allegation to not be comparable with the allegation made against the claimant in terms of either gravity or nature. Oversleeping and commencing duties late is materially different to the abusive conduct towards a service user, which the respondent considered for the claimant. The alleged oversleeping was accidental and involved failing to set an alarm successfully. When considering the conduct of, and outcome to an investigation, the difference in the nature and gravity of the allegations means that the circumstances were materially different such that a valid comparison cannot be made. In any event, even had the Tribunal needed to determine the further issue, the Tribunal would have found that the respondent had proved a reason for the difference in treatment other than race, being the contrast between the two allegations and the gravity of what was being considered/addressed. Comparators and other evidence and their impact on the hypothetical comparator

[97]Having determined that the claimant’s claim did not succeed based upon the actual comparators relied upon, the Tribunal did nonetheless consider the evidence available from how the real individuals were treated when considering how a hypothetical comparator would have been treated. The Tribunal, in particular, noted the way in which the fact finding interviews were conducted with Mr Rushton as relevant evidence (albeit they were conducted by a different manager). As well as the evidence relating to the named comparators, the Tribunal found the evidence from the fact finding interview with Mr Ellis to be useful evidence, demonstrating as it did the same managers’ approach (being Mr Fenna and Ms Crewdson) to a different fact finding meeting involving an employee whose race differed from that of the claimant. The hypothetical comparator

[98]An important part of considering how a hypothetical comparator would have been treated, is the identity of that hypothetical comparator. The Tribunal has carefully considered this issue and concluded as follows:a. The comparator must be someone who had the same complaint made about their conduct – that is a complaint in exactly the same terms as was made by Mr Hoy and is recorded in his email (261);

b. The alerter would also still be Mr Hoy – that is someone who Mr Fenna considered to be a trusted employee. During the hearing the claimant’s representative on a number of occasions emphasised that the complaint was made by three white employees about a black employee. In constructing the hypothetical comparator, what must be considered is someone of a different race to the claimant who is subject to the same complaint. It is not a necessary or appropriate part of the comparison to also change the race of the alerter. Similarly, the complaint would also have been perceived to have been supported by two others (albeit that there was a lack of evidence);

c. The complaint would be about abuse of the same service user, with his specific vulnerabilities;

d. The comparator would have the same length of service as the claimant on the Bureau, being effectively fifteen years;

e. For the elements of the alleged less favourable treatment to which it was relevant, the comparator would also be someone whose focus in the meeting or meetings was denying wrong-doing and identifying the alerter. The comparator would also have been someone who had not shown the contrition, acceptance, and wish to learn from the incident, that Mr Fenna sought (or expected), or at least would be perceived by Mr Fenna as not having done so;

f. Inasmuch as it was a factor, the comparator would also use the same language as the claimant in the meeting. That is, he would refer to being in charge rather than taking responsibility, being terminology which Mr Fenna perceived to demonstrate a lack of understanding about how services to service users should be provided. In a direct discrimination claim the hypothetical comparator must be someone who explained their actions in the same terms as the claimant and who had been able to advocate as effectively (or not) as the claimant; and

g. The hypothetical comparator must also be a casual support worker, that is someone treated by the respondent as being able to have their shifts ended without the full process or consideration which would apply to the dismissal of an employee.

[99]For the conduct of the investigation (extending as the allegation did to the entire investigation), the hypothetical comparator would also be someone who conducted himself in the same way at the second meeting on 21 February as the claimant did, where the Tribunal considered the conduct later in the process. The conduct in that second meeting was not relevant to the allegations relating to the instigation, outcome or decision; the outcome and decision clearly having already been made prior to the second meeting as they were conveyed to the claimant at the start of the second meeting.

[100]Where the hypothetical comparator differs from the claimant is in respect of race. The claimant’s representative’s position was that a white worker would have been treated differently. The Tribunal has considered the hypothetical comparator to be white British for the comparison. The claimant’s further particulars (42) explained that that the claimant relied upon the contended readiness or uncritical acceptance of the allegations or facts as proven, and (44) the alleged predisposition to believe that the claimant had acted as alleged, providing part of the basis for his assertion that a comparator would have been treated differently. The instigation of the investigation (and the hypothetical comparator)

[101]The first allegation was that the claimant was treated less favourably than a hypothetical comparator would have been, in the decision to instigate the investigation. The Tribunal does not find this to be the case. Irrespective of the race of the person about whom the complaint had been made, the Tribunal has no doubt whatsoever that an investigation would have been instigated. Indeed, in crossexamination, the claimant agreed that, once the report had been made, the respondent did have a duty to investigate it. Even had the Tribunal not made this finding, it would in any event have found that the respondent had proved the reason why it instigated the investigation, which was not the claimant’s race. That is, because of the complaint made and the need to instigate an investigation once it had been raised. The Judgment and majority findings

[102]Up to this point in the Judgment, what has been recorded and found both in respect of the facts, and in the decisions made when applying the law to the facts, was the unanimous view of the Tribunal panel. However when applying the law to the facts in considering whether the claimant was treated unfavourably when compared to a hypothetical comparator in respect to the conduct of the investigation, the outcome and the decision, the Tribunal has not reached unanimous agreement and, as explained below, what has been decided is based upon the majority view of the Tribunal panel. The outcome of the investigation (and the hypothetical comparator)

[103]The Tribunal determined the issues arising from the outcome and decision first, before reaching a determination on the conduct of the investigation.

[104]When considering the hypothetical comparator, as outlined at paragraphs 98- 100 above, the majority of the Tribunal (Dr Tirohl dissenting) finds that the claimant was not treated less favourably in respect to the outcome, than a hypothetical comparator would have been. That is, Mr Fenna when considering a white British worker in the same circumstances as outlined, would also have reached the same conclusion contained in his email of 18 February (263) and proposed that the comparator should be offered no more shifts on the Bureau. Someone who was also the subject of a complaint made by Mr Hoy in the same terms, who attended the first meeting and argued against the complaint rather than being perceived as showing the contrition and learning sought, would also have been given the same outcome.

[105]The minority (Dr Tirohl) disagrees. She finds that the outcome for a hypothetical comparator would have been different.

[106]In addition, the majority (Dr Tirohl dissenting) finds that even had the claimant been treated less favourably than a hypothetical comparator would have been, the respondent has proved that the reason for the treatment was not because of race. The basis for that finding is the same as the factors relied upon in identifying the hypothetical comparator and explained in detail at paragraphs 98 a-c and d-f above. The respondent has proved, with those factors, that the reason for the treatment was the matters explained and it was in no sense whatsoever because of the claimant’s race.

[107]As with the issue of the comparator, Dr Tirohl disagrees and does not find that the respondent has proved that the reason for the treatment was not because of race. She does not find that the respondent has proved that the treatment was in no sense whatsoever because of the claimant’s race. The decision to dismiss (and the hypothetical comparator)

[108]During submissions there was some disagreement about whether there was any difference between the outcome of the investigation and the decision to dismiss. The respondent’s representative submitted there was no difference. The claimant’s representative submitted that there was. On the basis of what he said, the respondent’s representative suggested there was in practice no difference between the conduct of the investigation and the outcome. The Tribunal accepts that the allegations do raise three different elements of alleged unfavourable treatment. The conduct of the investigation applied, in particular, to Mr Fenna and Ms Crewdson’s approach to, and conduct of, the so-called fact finding meeting and the outcome meeting. The outcome of the investigation is contained in the email from Mr Fenna to Mr Bentley (263), that is his recommendation about what should be the decision to be made based upon his investigation. The decision to dismiss was evidenced by Mr Bentley’s response later that day (264), that is the decision which the respondent contends was made collectively between Mr Fenna, Ms Crewdson and Mr Bentley, and which is stated in Mr Bentley’s email.

[109]Having identified that there are differences, for the purposes of considering how the hypothetical comparator would have been treated in practice, the relevant and material evidence and considerations were exactly the same for the allegations of outcome and decision. The decision made, whether collectively or by Mr Bentley individually, was entirely informed by, and reliant upon, the outcome of the investigation as recorded in Mr Fenna’s email and the notes of the first meeting. There were no additional factors which applied. Therefore, the Tribunal’s decisions as they applied to the outcome of the investigation also applied to the decision to dismiss, for the same reasons that are explained above. That is that the majority (Dr Tirohl dissenting) finds that a hypothetical comparator would have been treated in the same way in the decision to dismiss. The minority (Dr Tirohl) finds that a hypothetical comparator would have been treated differently. Similarly, the majority (Dr Tirohl dissenting) also finds that the respondent has proved that the reason for the difference in treatment in dismissal (if difference in treatment had been established) was not because of race, the minority (Dr Tirohl) does not. Whilst the collective decision makers may have included an additional individual decision maker in Mr Bentley and/or he may have ultimately made the decision to dismiss, the reasons for that decision in the view of the majority have been proved by the respondent to be in no sense whatsoever because of the claimant’s race, for the same reasons as explained in respect of the outcome of the investigation. The conduct of the investigation (and the hypothetical comparator), generally

[110]In considering the conduct of the investigation, the Tribunal has considered the evidence available about other investigations, when considering the hypothetical comparator. The investigations undertaken for Mr Rushton, another casual support worker subject to the fact finding process, demonstrated a far more even-handed approach, genuinely consistent with a fact finding exercise. That was evidence of the approach of this respondent, albeit demonstrating the approach of a different manager. Also of assistance were the notes of the approach of the same managers (Mr Fenna and Ms Crewdson) to a fact finding meeting with a casual support worker, Mr Ellis (458e). Those notes were also of a meeting which led to the worker ceasing to be offered shifts on the Bureau. Notably that meeting began in a more evenhanded way which was not indicative of a pre-conceived decision in the same way as Mr Fenna’s meeting with the claimant was on 15 February. However, the notes do record, later in the meeting with Mr Ellis, that Mr Fenna took a similar approach in which he challenged the attendee robustly from a position of having decided what had occurred.

[111]The Tribunal unanimously found that the conduct of the investigation was neither fair nor even handed. The so called fact finding meeting did not endeavour to find the facts, the facts having already been determined in the minds of the managers conducting the meeting. The Tribunal is also unanimously of the view that the absence of any identification of the seriousness of the race discrimination allegations made in the second meeting, and the lack of material steps undertaken to consider or address the concerns, was: surprising; not good practice; and demonstrated a lack of regard for discrimination issues. The absence of engagement with what was being alleged, and the failure to investigate further following the meeting, fell short of what would be expected of a reasonable employer (even when considering a casual worker who was not an employee).

[112]Whilst agreeing on these matters, the Tribunal panel did not however agree on the determination of the claimant’s direct race discrimination claim that the conduct of the investigation was less favourable treatment (based upon a hypothetical comparator) as explained below. The decision of the Tribunal on the conduct of the investigation and the hypothetical comparator (the majority view)

[113]The majority find (Employment Judge Phil Allen dissenting) that a hypothetical comparator would have been treated differently in the way in the which the investigation was conducted. The majority places particular weight upon the evidence of fact finding meetings for other staff and, in particular, Mr Fenna’s approach to the meeting with Mr Ellis, particularly the start of that meeting. The conduct of the meeting with the claimant on 15 February from the start, was aggressive towards the claimant and demanded full acceptance of the alert from Mr Hoy. The claimant expected to be coming to a meeting which Ms Crewdson had informed him was not about a serious matter. Instead he faced serious allegations of misconduct from the start.

[114]The majority (Employment Judge Phil Allen dissenting) also find that the claimant has shown the “something more” required to reverse the burden of proof, in respect of the claimant’s allegation that the conduct of the investigation was less favourable treatment on grounds of race. That “something more” is considered in the circumstances of the pre-determined and unreasonable way in which Mr Fenna and Ms Crewdson conducted the meeting which was stated to be one to find the facts, including closing down the claimant when he endeavoured to explain things and taking no notice whatsoever of the apology offered by the claimant at the end of the meeting – that is the claimant expressing the very thing which Mr Fenna said that he sought. The majority have considered the “something more”, in the light of the difficulties for claimants and the correct approach outlined in Amnesty International v Ahmed and Glasgow City Council v Zafar. They find that the lack of any measured response by Mr Fenna or Ms Crewdson to the raising of serious allegations of race discrimination and the contention that there had been collusion by people who were not present at the time of the stated events, was the “something more” required to inform the decision about the conduct of the investigation (even though occurring after much of the investigation had been conducted). The attendees neither investigated what the claimant said by speaking to the witness he referred to nor checked the CCTV system which was available, nor took any steps to report or record the allegation made. The attendees were being told something very important, but did nothing to establish the details of what was being alleged or the facts. This act of omission and the closing down of the claimant when raising race discrimination, in the decision of the majority provides the “something more”. The attendees blamed the claimant for getting angry and shouting and did not stop to ask themselves if there could be a reasonable basis for that anger which warranted investigation, before the decision not to use the claimant again was implemented.

[115]The majority (Employment Judge Phil Allen dissenting) also find that, the burden of proof having reversed, the respondent has not shown that the treatment of the claimant in the conduct of the investigation was in no sense whatsoever because of race. The shutting down of the second meeting and the dismissal of the fact that race could be a factor was indicative of closed minds. The dissenting/minority view on the conduct of the investigation and the hypothetical comparator

[116]Having carefully considered the evidence and taking account of the factors which applied to a hypothetical comparator in not materially different circumstances as highlighted at paragraphs 98-100 above, the minority of the Tribunal (Employment Judge Phil Allen) finds that the claimant was not treated less favourably than a hypothetical comparator of a different race would have been. The conduct of Mr Fenna later in the meeting with Mr Ellis was noted, which appeared to be the way in which Mr Fenna conducted the meeting from the point in that meeting at which he had made up his mind about what occurred. Taking into account Mr Fenna’s approach to the so-called fact-finding meeting with the claimant, his evidence about what he had already determined ahead of the meeting with the claimant and why, and his stated view about what he was doing in the meeting (that is giving the claimant the opportunity to understand what had occurred and in practice demonstrate contrition and lessons learned), the minority find that a hypothetical comparator would have been treated in the same way.

[117]The minority (Employment Judge Phil Allen) also does not find that the claimant has demonstrated the “something more” required to reverse the burden of proof. That decision is based upon consideration of the meeting, the conduct of it in the context of all the circumstances, and the factors already explained in respect of the outcome of the investigation. The minority has considered the way in which Mr Fenna and Ms Crewdson reacted to the allegation of race discrimination in the second meeting and the woeful lack of any attempt to formally address that allegation or give such a serious complaint the consideration and gravity it deserved. However, the minority finds (which differs from the majority) that such lack of awareness about the appropriate way to respond to serious discrimination complaints was a further extension of the same unreasonable and unfair conduct that was demonstrated by Mr Fenna in the first meeting and therefore did not constitute the “something more” required to demonstrate that the unreasonable conduct was on grounds of race. As explained in Bahl v The Law Society and Zafar v Glasgow City Council the respondent acting unfairly and unreasonably is not sufficient to show the “something more”, particularly in a situation such as this where the unfair and unreasonable process was one applied to a casual support worker who had no statutory unfair dismissal rights and to which the respondent did not apply the full and detailed procedures and consideration which it would apply to employees. A failure to be attuned to the seriousness of complaints of race discrimination (and alleged collusion) was not “something more” which showed that the reason for the initial treatment was the claimant’s race. In addition, the minority has also taken into consideration that the second meeting arose where the claimant’s own trade union representative stated that the discrimination complaint had no basis and did not make any attempt to persuade the respondent’s attendees that the matter was a serious one and should be addressed, and has accordingly found that the failure to do so did not shift the burden of proof.

[118]For similar reasons to those outlined in respect of the hypothetical comparator and the outcome of the investigation, the minority (Employment Judge Phil Allen) also finds that the respondent has proved that the reason for the treatment in the conduct of the investigation was in no sense whatsoever because of the claimant’s race. The basis for that finding is the same as the factors relied upon in identifying the hypothetical comparator and explained in detail at paragraphs 98 a-c and d-f above. The treatment (unreasonable and unfair as it was), was not because of the claimant’s race, it was, in summary, because of Mr Fenna’s and Ms Crewdson’s predetermined decision about the complaint made and the credibility of the account given by Mr Hoy (perceived as being corroborated by others), when undertaking an investigation involving a casual support worker with no employment rights and to which the respondent’s employee procedures did not apply. Other matter

[119]The Tribunal would highlight that it entirely understands and appreciates the importance of alerters in a service being provided to vulnerable adults. People feeling free and able to alert is of the utmost importance in such an environment and it is important that alerters must not be discouraged. Alerting should be encouraged, even where the alert may be wrong or incorrect, to ensure that an alert is raised on the very occasion when it does bring to light and stop the potential for abuse of a vulnerable adult. The Tribunal has considered the claimant’s claims for direct race discrimination and has explained the reasons for the decisions reached. However, nothing in what has been said, should be read as being critical of people for alerting where they perceive that there is a risk to a vulnerable adult, or to limit the need for such alerts to be appropriately investigated.

Summary

[120]For the reasons explained above, the Tribunal has found that the claimant was directly discriminated against on grounds of race contrary to section 13 of the Equality Act 2010 in the conduct of the investigation undertaken by the respondent into the events of 28 January 2019. The claimant’s other claims have not been found and are dismissed.