Mrs G McLaughlinMr J QuinlanRepresented himself for claimantVictoria Young (instructed by Solicitor) for respondentDate 7 December 2022
JUDGMENT
[1]The Tribunal does not have jurisdiction to hear the claim for unfair dismissal relating to the dismissal on 8 November 2019 and the claim is dismissed.[2]The claim for unfair dismissal on the ground of having made a protected disclosure in relation to the dismissal on 22 September 2020 is well-founded.[3]The Respondent discriminated against the Claimant on the ground of race in respect of the allegations that:(1) Nurse B refused to help the Claimant to toilet a resident, telling him that this type of work was for Africans, not for people of her race. 1 of 2 Case Number: 3200408/2021(2) Nurse B told the Claimant that she would do whatever it took to make the Claimant’s life uncomfortable.(3) Nurse B repeatedly told the Claimant to “fuck off”.[4]The other complaints of discrimination are not well-founded and are dismissed.[5]The complaint of victimisation is not well-founded and is dismissed.[6]The complaint of wrongful dismissal is not well-founded and is dismissed.[1]The Respondent is ordered to pay the Claimant £15,000 in respect of race discrimination.[2]The Respondent is ordered to pay the Claimant a further £30,837.90 in respect of unfair dismissal.[3]For the purposes of the Employment Protection (Recoupment of Benefits) Regulations 1996:(1) The total monetary award for unfair dismissal is £30,837.90.(2) The prescribed element is £30,670.32.(3) The prescribed element relates to 22 September 2020 to 30 November 2022.(4) The amount by which the total monetary award for unfair dismissal exceeds 1 of 6 the prescribed element is £167.58.
REASONS
[1]The background to the claims is set out in the written reasons provided in respect of our judgment on liability dated 30 November 2022. The Claimant succeeded in claims of unfair dismissal due to making a public interest disclosure, and race discrimination in relation to the actions of Nurse B.[2]These are the reasons for our judgment on remedy. They are based on the evidence and submissions we heard during the liability phase of the case, as well as the Claimant’s evidence and the submissions of both parties, orally and in writing, at the hearing 30 November 2022. Findings of fact Discrimination on the grounds of race
Findings of fact
[3]The Claimant was offended by the comments of Nurse B. As the Claimant remarked in submissions, “When you hurt a resilient person you hurt them more than someone who is oversensitive.” For the Claimant to take offence at Nurse B’s remarks means that he really was offended. In relation to the first incident with Nurse B, he was particularly hurt because it was in the context of her not helping him to provide care to a resident that was desperately needed. The Claimant felt that this was inhuman, and that he was failing to help the resident because he could not get help from Nurse B. Unfair dismissal due to making a public interest disclosure[4]The Claimant’s employment began on 30 September 2019 and ended on 22 September 2020. The Claimant’s normal gross weekly pay was £792. The Claimant’s normal net weekly pay was £577.34.[7]The Claimant was paid in lieu of notice, which means he has already been compensated for the loss of earnings in the period from 22 September 2020 to 20 October 2020.[8]In the period between 21 October 2020 and 31 October 2020 the Claimant would have been able to work.[9]However, on 1 November 2020 the Claimant became so sick from COVID-19 that he would not have been able to work. The Claimant suffered from Long COVID. The effect of this was that he was not able to work between 1 November 2020 and 31 July 2021. From 1 August 2021 the Claimant began to apply for jobs as 2 of 6 he was then feeling well enough to do so.[10]The United Kingdom’s Job Retention Scheme (“furlough”) ran until 30 September 2021. From 1 July 2021 onwards employers had to make increasingly large contributions to staff furlough pay.[11]The Claimant had the rare trait of being a CQC registered manager. As such, if the Respondent had not dismissed the Claimant, they would have wanted to retain his services. He would have been a valuable asset to the Respondent. The costs of keeping the Claimant employed on furlough would have been financially worthwhile for the Respondent. The costs that the Respondent would have had to pay under the furlough scheme, between 1 November 2020 and 31 July 2020, would have been minimal, particularly when set against the financial and staffcost time of running a recruitment exercise to find a permanent replacement for the Claimant. As such, despite the fact that the Claimant was unable to work, if he had remained employed by the Respondent then he would have been placed on furlough to allow his employment to continue.[12]The Claimant’s past payslips from when he had been furloughed show his monthly net furlough pay was £2,024.50. As such, his weekly net furlough pay was £467.19.[13]The Claimant was successful in finding new employment. That new employment began on 1 December 2021. In his new employment he was paid £40,000 per year. That is £769.23 per week gross, or £562.34 per week net. His net wages in his new job were £15 per week net less than in his old job.[14]The Claimant’s new employment ended on 31 August 2022. That was as a result of a series of disagreements he had with his new employer which caused him to decide that he could no longer remain employed, and to resign. Conclusions Discrimination on the grounds of race Injury to feelings
Conclusions
[15]The discrimination involved in this case was neither a campaign of discriminatory harassment as seen in the worst sorts of cases, nor a one-off event. It was a single major event, followed by multiple instances of abusive treatment that resulted from a discriminatory motive by Nurse B.[16]The Respondent has been correct in noting that the Claimant was not badly hurt by every discriminatory comment. Nonetheless, the Claimant’s feelings were injured. He was a resilient person and even for him Nurse B’s initial raciallymotivated comment was too much, particularly in the context in which it was made.[17]This case falls within the middle band of awards for injury to feelings (“the Vento bands”). It is a serious case which nonetheless does not merit an award in the highest band. 3 of 6[18]In assessing the place that the case falls within the middle band, the Tribunal considered several precedent cases, but was not directed to any case which was of direct relevance to the present case. Rather, they showed the general operation of the Vento bands.[19]We conclude that this case falls towards the middle to lower end of the middle band. The middle band for dismissals between 6 April 2020 and 5 April 2021 is £9,000 to £27,000.[20]We order compensation for the Claimant’s injury to feelings in the sum of £15,000. Aggravated damages[21]We considered whether an award of aggravated damages should be made. We concluded that the criteria for making an award of aggravated damages did not apply. Our reasons in particular are as follows.[22]Firstly, the discriminatory acts were not done in an exceptionally upsetting way. The extent to which they were upsetting, and in particular the context of not assisting to toilet a resident, has already been accounted for in our award of basic damages.[23]Secondly, the motive for the discriminatory act was no more spiteful and vindictive than necessary for the detriment because of race to have occurred. As such no additional distress was caused to the Claimant/[24]Thirdly, the Respondent’s actions subsequent to the discriminatory conduct did not rub salt in the wound. The Claimant is not happy with how the Respondent has acted, but the Respondent’s subsequent actions did not increase his distress. It was the racially motivated detriment alone which caused the injury to his feelings. Unfair dismissal due to making a public interest disclosure ACAS uplift[25]The Claimant seeks an ACAS uplift. He says that the Respondent failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the ACAS Code”). The Claimant in particular claims that there was no fair investigation, and that he was prevented from being able to be accompanied by a trade union representative.[26]In contrast, the Respondent says that the ACAS Code does not apply.[27]Paragraph 1 of the ACAS Code sets out its scope of application. It applies to “disciplinary and grievance situations in the workplace”. As it notes, “Disciplinary situations include misconduct and/ or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted”. 4 of 6[28]However, this leaves a grey area regarding other reasons for dismissal, including capability where under-performance or absence occurs as a result of long-term ill health or disability. If the reason for dismissal, as found by the tribunal, does not involve a disciplinary offence, then the ACAS Code has no relevance and it must follow that there can be no basis for awarding an uplift for failure to comply with it. In Holmes v Qinetiq Ltd [2016] I.C.R. 1016 (26 April 2016), the EAT held that a disciplinary situation was one in which an employee faces a complaint or allegation that might lead to disciplinary action, and such action ought only to be invoked where there was culpable conduct or performance alleged against the employee.[29]We conclude that this is the sort of case which falls outside the scope of the ACAS Code. In particular, there was no suggestion of a disciplinary offence by the Claimant, given that there was no culpable conduct alleged against him.[30]As such, we make no adjustment for failure to comply with the ACAS Code.[31]If we were wrong in our interpretation of when the ACAS Code applies, and it should have applied in this case, then we would have awarded an uplift of 25%. This is because the Respondent conducted such a poor investigation of the Claimant’s training records that it got matters factually wrong, with Ms King failing to realise what training the Claimant had in fact completed. It is further because, as set out in our written reasons on liability, Ms King prevented the Claimant from relying on a trade union representative by requiring a meeting to go ahead at short notice and when the trade union representative was not available. Basic Award[32]The Claimant was employed for less than a year. As such, the calculation of his Basic Award would be £792 x 1.5 x 0 = £0. Compensatory Award: Prescribed Element[33]Between 21 October 2020 and 31 October 2020 the Claimant was able to work normally. He is to be compensated for this period at his weekly normal net pay x 11 days. £577.34 x 14⁄7 weeks = £907.25.[34]Between 1 November 2020 and 31 July 2021 the Claimant was off sick and would have been furloughed if he had not been dismissed. He is to be compensated for this period at his weekly furlough net pay x 39 weeks. £467.19 x 39 weeks = £18,220.41.[35]Between 1 August 2021 and 30 November 2021 the Claimant was looking for work. He took reasonable steps in that period to find work, against the background of recovering from Long COVID. He is to be compensated for this period at his weekly normal pay x 173⁄7 weeks. £577.34 x 173⁄7 weeks = £10,062.21.[36]Between 1 December 2021 and 31 August 2022 the Claimant was earning £15 net per week less than in his old job. He is to be compensated for this period at £15 per week x 391⁄7 = £587.14. 5 of 6[37]Between 1 September 2022 and 30 November 2022 the Claimant was unemployed. It is not the Respondent’s fault that the Claimant lost his new job. However, it is their fault that he had that job to begin with. Nonetheless, it is an intervening event. He could have got a better job in that time. As such, for this period there is no compensation due.[38]This gives a total loss of earnings of £29,777.01.[39]On all of these sums the Respondent’s employer’s pension contributions were 3%. 3% of £29.777.01 = £893.31.[40]This gives a total Prescribed Element of £30,670.32. Compensatory Award: Non-Prescribed Element[41]The Claimant had been employed for less than a year when he was dismissed. He had no right to claim for ordinary unfair dismissal. He had no right to long notice. As such, we make no award for loss of statutory rights or right to long notice.[42]Happily, on the day after the hearing in this case the Claimant was due to begin a new job. As such, there was no suggestion of future loss.[43]The Prescribed Element figure exceeds £30,000 by £670.32. We estimate tax at 20% of £670.32. The additional compensation to account for tax is therefore (£670.32 / 0.8) - £670.32 = £837.90 - £670.32 = £167.58.[44]This gives a total Non-Prescribed Element of £167.58. Summary of conclusions on remedy[45]We order the Respondent to pay £15,000 in respect of injury to feelings for discrimination, and £30,837.90 in respect of unfair dismissal, this being the Prescribed Element.[46]We make no other award. JUDGMENT having been sent to the parties on 12 December 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:[1]The Claimant was first employed by the Respondent between 30 September 2019 and 8 November 2019, when he was dismissed (“the First Dismissal”). He appealed the First Dismissal, and on 3 February 2020 he was sent a letter reinstating him, to begin work again on 10 February 2020. He remained employed until 22 September 2020, when he was again dismissed (“the Second 1 of 26 Dismissal”). He was employed as a Unit Manager. The Respondent is a provider of residential, nursing, and dementia care for older people, with around 300 care homes and around 23,000 employees. It is regulated by the Care Quality Commission (“the CQC”). The claims[2]The Claimant claims for the following:(1) Unfair dismissal due to making a public interest disclosure, contrary to ss 94 & 103A Employment Rights Act 1996, arising out of his dismissals on 8 November 2019 and 22 September 2020.(2) Direct race discrimination, contrary to s 13 Equality Act 2010. The Claimant says that he was discriminated against because of his African ancestry and compares himself with how Asian employees were treated.(3) Victimisation, contrary to s 27 Equality Act 2010. The Claimant says he was victimised by his dismissal on 22 September 2020.(4) Wrongful dismissal / breach of contract.[3]On 20 December 2020 ACAS was notified under the early conciliation procedure. On 31 January 2021 ACAS issued the early conciliation certificate. On 1 February 2021 the ET1 Claim Form was presented. On 16 March 2021 the ET3 Response Form was accepted by the Tribunal. The issues[4]In a Preliminary Hearing on 13 September 2021 Employment Judge Gardiner discussed the case with the parties and prepared a list of issues. That list of issues is contained in Case Management Orders made on 13 September 2021 and sent to the parties on 15 September 2021.[5]An amended list of issues is at Annex A to this judgment. Procedure, documents, and evidence heard Procedure[6]This has been an in-person hearing before a Tribunal made up of a judge and 2 lay members.[7]At the start of the hearing we checked whether any reasonable adjustments were required. No reasonable adjustments were requested. However, on the morning of the third day of the hearing the Claimant was visibly unwell. The Tribunal insisted on taking a break. On his return he had taken painkillers and appeared somewhat better. He asked to continue with the hearing and was able to complete the day’s evidence and submissions without further difficulty. 2 of 26 Documents[8]We were provided with the following bundles:(1) An agreed 437-page Hearing Bundle;(2) Claimant’s Reply to Untruthful, False and Misleading Statements made by Respondent in Respondent’s 8th March 2021 Response / Resistance to Claimant’s Claim(s) unpaginated;(3) Claimant’s Additional Bundle of 17 pages.[9]Witness statements were provided separately from the following witnesses:(1) Samuel Jonjo, the Claimant;(2) Emmanuel Oguike, a former employee of the Respondent;(3) Donna Daley, an Area Director for the Respondent;(4) Kirsty Craig, another Area Director for the Respondent;(5) Pervine Emery (also known as Pervine King), a Senior Home Manager for the Respondent;(6) Gavin Chilcott, a Regional HR Business Partner with the Respondent. Application for a witness order[10]On 18 October 2022 the Respondent applied in writing without notice to the Claimant for a witness order in respect of one of its employees. The employee was the subject of serious allegations made against her. Because no opportunity was given to her to defend herself against the serious allegations we have referred to her as Nurse B.[11]Before the hearing the Tribunal had not taken any action in relation to the application. At the time of the hearing the application was not on the Tribunal’s file. Before the hearing the Respondent did not chase the application. At the hearing the Respondent made no mention of the application until after the close of the Claimant’s case. This was shortly before lunch on the second day. Ms Young said that she would re-send the application. The application was not received by the Tribunal members during the course of the hearing. The Respondent did not pursue the application orally at the hearing, and at no stage requested a ruling on it. Evidence[12]At the hearing we heard evidence under oath or affirmation from Mr Jonjo, Mr Oguike, Ms Daley, Ms Craig, Mr Chilcott, and Ms King. Each of the witnesses adopted their witness statements and added to them in answer to questions. 3 of 26 Closing submissions[13]The Claimant and Ms Young made brief oral closing submissions.[14]After they had made their submissions the Tribunal summarised its understanding of the law. Ms Young agreed with the Tribunal’s understanding of the law, and helped to finesse some details. The Claimant took a note of what was said, and explained that he understood what was being said.[15]After the hearing, the parties each sent to the Tribunal written closing submissions, which the Tribunal read before beginning their deliberations. Findings of fact The Claimant’s race and background[16]The Claimant is of African heritage. This was known by the Respondent and their staff at all times.[17]The Claimant has spent about 20 years working in the UK health and social care industry, the last 12 years of which was spent working as a CQC Registered Manager. The Respondent’s business and its policies[18]The Respondent operates a national chain of care homes. One of those care homes is Mornington Hall Care Home. There were 4 units in Mornington Hall Care Home, one of which was Roding House. Each unit had 30 beds for residents, providing a maximum occupancy of 120 residents in the care home.[19]At the time that the Claimant’s employment began, Mornington Hall Care Home was assessed as inadequate by the CQC. As a result, the CQC prohibited the admission of new residents to Roding House.[20]The Respondent has policies covering all areas of its work. These include an equal opportunities policy and a probation policy. The probation policy provides for a 6-month probationary period for all new employees, unless their conduct or performance is of such concern that it warrants earlier termination or an extension to this time period. The conditions of the Claimant’s employment[21]The Claimant began his employment with the Respondent on 30 September 2019. He was employed as the Unit Manager in charge of Roding House.[22]The Claimant was required to complete the standard 6-month probationary period at the start of his employment. In order to complete the probationary period he was required to complete his full online “Working together as One” e-learning induction programme using the Respondent’s online training portal. His contract required that during his probationary period his performance was to be regularly assessed by his Home Manager (i.e. the General Manager) or their nominee. Provided he was performing to the standard required his appointment would be 4 of 26 confirmed at the end of the probationary period. The probationary period could be extended if circumstances necessitated the extension.[23]The Claimant was required to work for 48 hours per week. That was generally spread over 4 days per week.[24]The Claimant’s leave year ran from 31 March to 1 April each year. If leave was not taken it would be lost, unless the General Manager gave approval for it to be carried over between leave years.[25]The Claimant’s notice period was(1) two weeks during the initial three months of employment; and(2) four weeks thereafter. The first period of the Claimant’s employment by the Respondent[26]The Claimant reported to a General Manager. The General Manager during the first period of the Claimant’s employment was not called by the Respondent to give evidence at the hearing. As such no opportunity was given to him to defend himself against serious allegations made against him. As a result, the Tribunal has referred to him in this judgment as Manager A, rather than giving his name.[27]It was Manager A’s responsibility to ensure that the Claimant received an induction, either by inducting the Claimant himself or by designating another member of staff to carry out the induction. However, the Claimant did not receive that induction.[28]The Claimant was expected to work alongside Nurse B. When the Claimant first started employment, in a large meeting with senior colleagues, Nurse B told Manager A that when she joined the Respondent she did not require induction, and so the Claimant should be able to get on without induction. This influenced Manager A not to provide a full induction to the Claimant. The staffing levels at the Mornington Hall[29]During the first period of the Claimant’s employment, Mornington Hall, and Roding House in particular, were regularly severely understaffed. The Claimant was regularly required to pitch in to do work below his level because of the understaffing. The First Public Interest Disclosure[30]Many residents who lived in the home in which the Claimant worked had bed rails attached to their beds. The purpose of the bed rails is to stop them falling out of bed and being injured.[31]In late October 2019 Manager A commissioned a risk assessment in relation to the use of bed rails in the home (“the Original Risk Assessment”). The purpose of the Original Risk Assessment was to determine whether the bed rails were in fact required.[32]The Claimant and the staff on his Unit conducted the Original Risk Assessment on or around 31 October 2019. 5 of 26[33]Manager A was not satisfied with the Original Risk Assessment. He conducted a further risk assessment in a single day (“the New Risk Assessment”).[34]It was the New Risk Assessment which Manager A used in order to make decisions about the continued use of bed rails. The New Risk Assessment called for the removal of a large number of the bed rails. Those bed rails were subsequently removed.[35]The unchallenged evidence was that as a result of the removal of the bed rails, at least 6 residents fell off their beds. Some had to be admitted to hospital because of the falls. Some suffered broken bones due to the falls.[36]The Original Risk Assessment would have avoided the dangers that eventuated from the use of the New Risk Assessment.[37]The Claimant reported the issue regarding the New Risk Assessment to Manager A (“the First Public Interest Disclosure”). The First Dismissal[38]On 6 November 2019 Manager A scheduled a probation review meeting for the Claimant. The purpose of a probationary review meeting was to review the Claimant’s progress through the probation process. In order for the Claimant to present his progress appropriately in the probationary review meeting he would need to be able to bring with him some relevant documentation, and to prepare for what he wanted to talk about. The Claimant did not know about the probationary review meeting in advance because the Respondent posted the invitation to the probationary review meeting to the wrong address. The Respondent had the Claimant’s address recorded correctly elsewhere, so it is unclear why it was sent to the wrong address. A few days after the probationary review meeting a neighbour of the Claimant’s passed to the Claimant the letter inviting him to the probationary review meeting.[39]The Claimant did attend the probationary review meeting with Manager A. However, because he had not been enabled to prepare for the meeting, he refused to participate in it. He took the view, correctly, that without the opportunity to prepare for the meeting, he could not provide Manager A with appropriate information to allow Manager A to make a fair assessment of the Claimant’s progress.[40]On 7 November 2019 Manager A sent to the Claimant a letter dismissing him (“the First Dismissal”). On 8 November 2019 this was received by the Claimant. The letter purported to give the reasons for dismissal as being “poor response to instructions or take direction and inability to complete tasks assigned”, “poor team management and deployment of staff” and “poor feedback from relatives about your approach and professionalism”. These reasons were unparticularised.[41]However, the real reason for Manager A’s decision to dismiss the Claimant was that he was angry at the Claimant for having made a public interest disclosure.[42]After the probationary review meeting the Claimant attended Mornington Hall 6 of 26 Care Home. Manager A called police on the Claimant. The Claimant was sent an email by HR asking him to leave the premises. He left the premises.[43]By the date of the First Dismissal the Claimant had worked for the Respondent for 40 days (including the date of dismissal). The appeal and re-instatement of the Claimant[44]On 7 November 2019, before having received written notice of his dismissal, the Claimant lodged a grievance alleging bullying by Manager A including in a Flash Meeting in front of other staff. The allegation was subsequently investigated by Ms Daley. She did not uphold the grievance, because the few senior staff members she spoke to did not support it. She did not speak to most of the staff in attendance at the Flash Meeting. In the course of a grievance meeting, the Claimant presented Ms Daley with spreadsheets showing the number of minutes of staff time per day that were available to him on his unit, and how many minutes of staff time were required. These showed that the unit was short-staffed and unable to provide the services required.[45]After the First Dismissal, the Claimant did not realise immediately that he was in fact dismissed. He considered himself to be in a liminal state between dismissal and employment, because he had an appeal against his dismissal outstanding.[46]The Claimant appealed against the First Dismissal using the Respondent’s normal appeal procedure. The appeal was unsuccessful.[47]Following the unsuccessful appeal, the Claimant wrote to the CEO of the Respondent with his concerns about the process involved in his dismissal. The CEO of the Respondent took the unusual but appropriate step of ordering a further investigation. This further investigation resulted in the reinstatement of the Claimant. The reinstatement of the Claimant was communicated to him in a letter dated 3 February 2020.[48]In the course of the appeal following the referral by the CEO, the prospect of the Claimant being reinstated but in a different care home was brought up by an Area Director, Christen Sen Pedro. She asked the Claimant whether he wanted to go back to Mornington Hall Care Home or transfer to another care home. He said that he wanted to go back to Mornington Hall Care Home to return to the good work he was doing in that community. It was Christen Sen Pedro who upheld the appeal following the referral by the CEO. The second period of the Claimant’s employment[49]On 10 February 2020 the Claimant’s employment with the Respondent recommenced.[50]Ms King started work full time as the new General Manager of Mornington Hall Care Home on 25 February 2020. However, she had been into Mornington Hall Care Home before then. She had also worked for the Respondent for 2 weeks undertaking induction training, having started her employment on 10 February 2020. 7 of 26[51]During her employment with the Respondent Ms King has never read the Respondent’s equality and diversity policy.[52]In Ms King’s first formal meeting with the Claimant as the new General Manager she noted on multiple occasions that the Claimant was still in his probation period. This had the effect of unnerving the Claimant.[53]Ms King knew about the circumstances of the Claimant’s previous dismissal and reinstatement. In particular, she knew about the Claimant having challenged the New Risk Assessment.[54]On a day in February 2020 shortly after she started work at Mornington Hall Care Home, Ms King told the Claimant that she was not prepared to work with him. The cause of this was not the Claimant’s race.[55]On a day in February 2020 shortly after she started work at Mornington Hall Care Home, Ms King told the Claimant to take leave. Ms King did not want to work with the Claimant in light of the previous challenge to Manager A. The cause of this was not the Claimant’s race.[56]On 27 February 2020 Ms King wrote to the Claimant instructing him to complete all mandatory training by 5 March 2020. By 5 March 2020 the Claimant would have been employed by the Respondent for a total of 65 days. Without the Claimant being given additional time on the rota at Roding House to do nothing but carry out training this was an impossible task for him to complete. Such reserved time for him to carry out the training was promised by Ms King, but the promise was not fulfilled.[57]On 25 March 2020 Nurse B refused to help the Claimant to toilet a resident. This amounted to neglect of the resident. Nurse B told the Claimant that this type of work was for Africans, not for people of her race, which was Asian. She said words to the effect of “what you apparently did not understand…is that people like me […] are not meant to work on the floor. We do paperwork.” The Respondent’s case is that Nurse B’s job was to do paperwork and that this is all that she was referring to, and that she made no reference to Africans; the Respondent therefore says that her comments were appropriate. This would still not have been appropriate, as the toileting of a resident was more important than job roles, and as Ms King noted in her evidence, everyone was required to pitch in to carry out menial tasks (including herself as General Manager) when other staff were not available. As such, even if we accepted the Respondent’s case, Nurse B’s approach would have been inappropriate. We are driven to ask ourselves why Nurse B would have taken an inappropriate approach. We find that an explanation is consistent with the Claimant’s evidence: that her reasoning and actions were racially motivated, and that she referred to race.[58]From 27 March 2020 onwards Nurse B told the Claimant that she would do whatever it took to make the Claimant's life uncomfortable and repeatedly told him to “fuck off”.[59]On 2 April 2020 the Claimant’s probationary period was extended to 22 September 2020 because of the impact of the Claimant having not been at work 8 of 26 for much of the period from his first being employed up to that point. Subsequently, the end date of the probationary period was extended to 12 November 2020.[60]On 14 April 2020 Ms King invited the Claimant by letter to a probationary review meeting, to take place on 22 April 2020. It was plainly not envisaged that this would be an end of probation meeting, given that the Claimant’s probation period had already been extended to 5 months after the date of the scheduled meeting.[61]On 16 April 2020 the Claimant was instructed to begin shielding due to the effects of the COVID-19 pandemic. He began doing so straight away. He was placed on furlough by the Respondent. As a result, the Claimant’s probationary review meeting could not take place.[62]On 10 August 2020 the Claimant returned to work from shielding. He had intended to be back at work from 1 August 2020, but was required to produce 3 negative COVID-19 tests before his return to work.[63]On 11 August 2020 Ms King sent a letter to the Claimant telling him that he would have a probationary review meeting in 6 weeks’ time (i.e. 22 September 2020) but not specifying the exact date.[64]On 20 August 2020 Ms King wrote to the Claimant requesting a meeting on 25 August 2020 to discuss his outstanding training. She said that he was responsible for his own training and that it was mandatory that all training was completed in a timely manner. She said that not completing training would result in withdrawal of shifts and disciplinary action. No supportive measures to help the Claimant complete his training were suggested.[65]At 14:18 on 24 August 2020 the letter of 20 August 2020 was delivered by recorded delivery. The Claimant did not attend the meeting on 25 August 2020 because of the late notice.[66]On 27 August 2020 the Claimant was signed off sick. He had developed swelling in his arm which made it hard to move the arm, put his hand down, or use his fingers. In the circumstances it was impractical for him to use a computer, including to complete training courses. Until 14 September 2020 he remained signed off work. The Second Public Interest Disclosure[67]On or about 25 or 26 March 2020 the Claimant made a complaint to Ms King that there had been an incident of wilful neglect of a resident by Nurse B in refusing to assist the Claimant to toilet the resident.[68]The local authority had a role in regulating Mornington Hall Care Home. On 28 March 2020 the Claimant wrote to the local authority. The purpose of that correspondence was to inform the local authority of the abuse of the resident by way of neglect.[69]The Claimant reported to Ms King the incident regarding the failure to toilet a resident. She did not take remedial action in response to this. 9 of 26[70]Contrary to the Respondent’s reading of the Claimant’s letter to the local authority, the Claimant did not say that he had not raised with Ms King any part of the incident. The Claimant had written in the letter to the local authority that he wished to remain anonymous. This does not mean that he had not already raised the issue with Ms King. A report to the local authority could equally have been made by another person. Further, it would not only be Ms King and Nurse B affected by the report: the Respondent as a corporate whole would be affected. If Ms King or Nurse B or both were dismissed, the Claimant’s role in reporting his concerns could have remained confidential afterwards. Requesting to remain anonymous was not futile and it does not undermine the Claimant’s account.[71]Having had the opportunity of hearing the evidence of both sides, over several days, the Tribunal prefers the evidence of the Claimant.[72]Under cross examination the Claimant clarified, and we accept, that the purpose of the letter to the local authority was not to raise discrimination issues, but rather to raise safeguarding issues. The Claimant’s training issues[73]The Respondent takes a strict approach to staff training. The Respondent’s training portal allows staff to complete training online. The completed training is automatically logged and reports are generated. The Respondent required the General Manager in each of its homes to ensure that the staff in that home had completed at least 83% of their training. If each member of staff in the home hit the 83% mark, then the General Manager would automatically hit their target.[74]Some training was required in order for the Claimant to be allowed to distribute medication, manually handle residents, or take on other specific tasks. During the course of the Claimant’s employment, additional training modules were added which were not requirements for him to pass his probationary period, but were nonetheless mandatory. During the early stages of the COVID-19 pandemic the Respondent also added additional training requirements for its staff regarding Personal Protective Equipment and other matters related to the pandemic.[75]During his probationary period the Claimant was required to complete 60 training modules using the Respondent’s online training portal. The completion of these training modules was a requirement for him to pass his probationary period.[76]The completion of almost all of the training modules required the Claimant to log on to the Respondent’s training portal and complete the training there. The training would then automatically be marked as completed. A very small number of courses required the Claimant to be assessed practically by another member of staff appointed by the General Manager for the purpose of carrying out the assessment. In such cases, it was the other member of staff’s responsibility to ensure that the completion of the training was reported to the General Manager, who would then be responsible for ensuring that the training portal was updated.[77]Ms King accepts that she did not sign off the Claimant’s medication competency training. Being the General Manager of the home it cannot have escaped her attention that she needed to do this. She would have needed to do it for other 10 of 26 new staff.[78]The training portal set deadlines for the completion of some courses. If they were not completed on time then on any report produced by the training portal they would show up as being overdue.[79]The certification that was generated by the training portal in respect of some completed courses expired after a certain period of time. Once the course had expired it had to be repeated.[80]When an employee of the Respondent is not at work for a long period then they can be “hidden” from the training system. Staff would be hidden if they were on long-term sick leave, parental leave, or on furlough. Staff would also be subject to a process identical to hiding if they were no longer in the Respondent’s employment. The purpose of hiding an employee is to ensure that they do not show up in the overall statistics produced on staff in the home. For example, a hidden employee would not count towards the requirement placed on the General Manager to ensure that the staff at the home had completed a minimum of 83% of their training. They would also not count when the CQC inspected the home’s compliance with its training obligations.[81]The Claimant was entitled to be paid for the time it took to complete training courses. As such, the completion of training courses was meant to be done only when the Claimant was “on the clock”. He was not meant to complete training courses while he was not scheduled to work, or while he was off sick, or on annual leave. He would not have been allowed to complete training courses while he was on furlough, because this would count as doing work, and would breach the terms of the furlough. He did not have access to the training system when he was not employed by the Respondent.[82]The Respondent at the hearing produced records of the use of the training portal. The records lacked detail and were not accompanied by an adequate explanation of what they were said to show. At the highest they can be said to show attempts to log on to the training portal using the Claimant’s account. They were not of assistance in determining when courses were completed by the Claimant.[83]For a prolonged period of time the Claimant had difficulty accessing the training portal from home. In particular, the internet at his home was of poor quality. As a result, the Claimant was keen to be allowed to complete the training courses required of him while he was at work.[84]The Claimant requested the use of a computer in the Respondent’s training room. He also requested to have time specifically set aside to allow him to complete training. Ms King told him that he could not use the computers in the training room, but could use another computer in the home. That computer was required by other members of staff throughout the day in order to complete their own work. The Claimant would not have been able to use it for more than an hour per day in total, and that hour would have been broken up by other people taking over the computer. Ms King did say that the Claimant could be timetabled for work in order to complete training. However, he was not provided with the timetabled hours required to complete the training. 11 of 26[85]On 15 September 2020 Ms King wrote to HR, including Angela Jacques, regarding the Claimant still being on probation, and having been given a deadline of 28 August 2020 to complete training. She noted that he had failed to complete training. She referenced an email from Ms Jacques sent on 6 April 2020, and said “it refers to training not being completed and we can dismiss???”[86]The email of 6 April 2020 from Ms Jacques to Ms King stated that because the Claimant was on probation he could be given a deadline “before it ends” to complete his training, otherwise his employment would be discontinued. It was noted that this needed to be “very well documented ensuring he is aware of what needs to be done and the consequences of not completing his training”.[87]By her own admission, when Ms King sent the email of 15 September 2020 she wanted to dismiss the Claimant. The Second Dismissal[88]On 15 September 2020 Ms King wrote to the Claimant inviting him to a probationary review meeting on 22 September 2020. The letter contained a warning that if the Claimant’s probation period was not passed or extended then his employment would come to an end. By the date of the letter of 15 September 2020 the probation period was due to end on 12 November 2020 (i.e. 51 days after the scheduled probationary review meeting). The letter did not indicate that the meeting could result in the Claimant’s immediate dismissal with or without notice due to a failure to complete all training modules by the date of the meeting.[89]On 18 September 2020 the Claimant orally requested to postpone the meeting of 22 September 2020. Ms King did not object. However, she also did not confirm the postponement of the meeting of 22 September 2020. The Claimant later considered that he would prefer to have the request – and his hoped-for acceptance – of the postponement in writing. As such, on 21 September 2020 he wrote to Ms King requesting the postponement of the meeting. The reason that the Claimant wanted to postpone the meeting was in order to be accompanied by his trade union representative, who was not available on 22 September 2020, and to get necessary documents together.[90]At 10:44 on 21 September 2020 Ms King emailed the Claimant telling him that his trade union representative needed to contact her directly to confirm the representative’s unavailability. The Claimant did not see this email the same day because he was busy working. Due to the pressure of work he did not get home on the night of 21 September 2020 until midnight, and did not then check his emails on arriving home.[91]On 22 September 2020 Ms King decided that the probationary review meeting would go ahead in the absence of the Claimant’s trade union representative. She could have postponed the meeting if she wanted to, but decided not to.[92]Also on 22 September 2020 between 10:00 and 16:00 the Claimant was required to attend a Compliance Meeting (also known as a Quality Meeting or a Quality Governance Meeting) with all of the Respondent’s other senior staff at the Mornington Hall Care Home. 12 of 26[93]Ms King used the Claimant’s presence in the Compliance Meeting to find him, and required him to attend a meeting in her office next door to the Compliance Meeting.[94]Before she spoke to the Claimant in the meeting in which he was dismissed, Ms King had already made up her mind to dismiss him. She had decided that the justification that she would give for the dismissal was the Claimant’s training being incomplete. Ms King relied on the correspondence with HR as authority to make a decision on the Claimant’s continued employment based on the training records.[95]However, Ms King must have known, and did know, that the Claimant had further time in which he could complete his training. His training was to be completed within his first 6 months of employment, this being his probationary period. That probationary period had been extended for good reason: the Claimant had been dismissed, he had been on furlough, and he had been off sick. The Respondent could reasonably claim to need more time to assess the Claimant’s performance under the probation policy. Equally, in reaching such a conclusion, the Respondent necessarily recognised that the Claimant still needed time to be trained.[96]By the date of the Claimant’s dismissal he had not completed all of his training. Nor had he completed the probationary period within which he was required to complete his training. However, he was making progress towards the completion of that training. It was obvious to Ms King that if the Claimant had been allowed to continue in employment, then he could have completed the mandatory probationary training modules before the completion of his probationary period.[97]The probationary review meeting began with the Claimant being pulled out of the Compliance Meeting. In the probationary review meeting he refused to participate. He left the meeting and re-joined the Compliance Meeting. He was subsequently told by Ms King that he did not need to remain in the Compliance Meeting, which he reasonably interpreted as meaning that he should leave. He was subsequently telephoned by her three times after he had left the premises.[98]In the probationary review meeting, the Claimant did not make a threatening gesture towards Ms King. She alleged that with his hand he had made a throat slitting gesture at her. The reality is that he said, in terms, that she was cutting his throat, and illustrated this with a gesture. It was aimed at himself, and was illustrative: it was not aimed at her. The Claimant was not threatening in any way in the meeting with Ms King. She did not believe him to be threatening, as evidenced by her telephoning him subsequently.[99]According to Ms King, the Claimant’s action in refusing to participate in, and leaving, the meeting were not misconduct of any sort.[100]Following the hearing by way of a letter dated 22 September 2020 the Claimant was dismissed (“the Second Dismissal”). The letter purported to give the reason for dismissal as failure to complete required training. It set out progress that the Claimant was said to have made with his training. The record of completed training courses as set out in the letter was flawed and was not an accurate 13 of 26 reflection of the training records. The Claimant was given 4 weeks’ pay in lieu of notice.[101]By the date of the Second Dismissal the Claimant had worked the original 40 days, and then from 10 February 2020 to 22 September 2020 (an additional 226 days). However, of those 226 days he spent 19 days off sick and 116 days on furlough, meaning he was available to work for only 91 days. As such, his total period employed by the Respondent during which he was available for work was 131 days. A 6-month probation period would have spanned at least 182 days.[102]On 27 September 2020 the Claimant brought an appeal against his dismissal. On 12 October 2020 he was invited to a probationary review appeal hearing. On 6 November 2020 Jon Catterwell wrote to the Claimant refusing the Claimant’s appeal. The role of Ms Jacques in the appeal process was to provide HR support. The appeal was by way of review, and was procedurally fair. However, it did not remedy any substantive deficiencies in the reasons for dismissal.[103]After the letter of appeal was received by the Respondent, Ms King complained to the police about the Claimant’s conduct in the probationary review meeting. The circumstances in which the Claimant brought his claims[104]The Claimant did not bring his claim within 3 months of the First Dismissal because he was reinstated. He appealed his dismissal all the way up to the CEO of the Respondent. In the Claimant’s mind, there was only a 25% chance that the CEO would support him. He felt it was far more likely that the CEO would agree with his senior staff members. As such, when the Claimant was reinstated, in his mind, the CEO of the Respondent had done right by him: the CEO had ordered that a fresh consideration of the Claimant’s case should take place, and that led to the reinstatement. The Claimant was then going to continue in employment with the Respondent As such, the Claimant did not want to be identified as a person who demanded money even after he was reinstated. He did not want to be seen as a litigious person.[105]At the time of the First Dismissal the Claimant approached legal representatives. However, he never received advice from them. He was quoted £6,000, which he could not afford. He was not offered free advice by anyone.[106]Despite not having advice, the Claimant accepts that around the time of the First Dismissal he had been aware of ACAS and their role in Tribunal proceedings. He had looked up the Employment Tribunal online, and seen that ACAS acted as the “gatekeeping service”. He spoke to ACAS in February 2020. In February 2020 he was aware of the 3-month deadline to bring an unfair dismissal claim. Relevant law Unfair dismissal[107]Section 94 of the Employment Rights Act 1996 (“ERA 1996”) provides that an employee with sufficient qualifying service has the right not to be unfairly dismissed by their employer. 14 of 26[108]Section 108 of the ERA 1996 provides that an employee does not benefit from the protections in section 94 unless they have been employed for a period of not less than two years ending with the effective date of termination. However, section 108(3)(ff) says that this two-year minimum service requirement does not apply in cases to which section 103A of the ERA 1996 applies.[109]Section 103A of the ERA 1996 provides that an employee who is dismissed shall be regarded as unfairly dismissed if the principal reason for the dismissal is that the employee made a protected disclosure.[110]In Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401; [2017] IRLR 748 (23 May 2017) Lord Justice Underhill stated that the “reason” for a dismissal is the factor or factors operating on the mind of the decision-maker which causes them to take the decision to dismiss or, as it is sometimes put, what “motivates” them to dismiss. Public interest disclosures / protected disclosures[111]The ERA 1996 creates a legal regime which protects employees from detriments that they may suffer as a result of making public interest disclosures.[112]According to section 43A of the ERA 1996, only “qualifying disclosures” are protected. A qualifying disclosure is defined in section 43B of the ERA 1996 as follows in particular: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […] (d) that the health or safety of any individual has been, is being or is likely to be endangered, […] or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. […] (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”[113]Qualifying disclosures are only protected disclosures if they are made to certain specified people or organisations. One such specified person is the employer. In this regard, section 43C ERA 1996, provides as follows in particular: “(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure — 15 of 26(a) to his employer, or(b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.”[114]Section 43F of the ERA 1996 sets out a further way that a protected disclosure to be made: to a “prescribed person”. It provides as follows: “(1) A qualifying disclosure is made in accordance with this section if the worker—(a) makes the disclosure to a person prescribed by an order made by the Secretary of State for the purposes of this section, and(b) reasonably believes— (i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true. (2) An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.” Direct race discrimination (Equality Act 2010 section 13) The right not to face discrimination[115]Employees have a right not to be discriminated against on the grounds of their race. Section 39(2) of the Equality Act 2010 establishes that: “(2) An employer (A) must not discriminate against an employee of A's (B)— […] (c) by dismissing B; 16 of 26 (d) by subjecting B to any other detriment.”[116]Discrimination may be direct or indirect. Direct discrimination is defined in section 13 of the Equality Act 2010: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. […]”[117]“Race” for these purposes is defined in section 9 of the Equality Act 2010 as follows: “(1) Race includes—(a) colour;(b) nationality;(c) ethnic or national origins.” The nature of a detriment[118]Whether the Claimant has suffered a detriment is determined by asking, “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337 (27 February 2003) at ¶ 35). This is an objective test. Comparators in discrimination cases[119]A Claimant may show that they have been discriminated against by comparing themselves with an actual comparator, or a hypothetical comparator. The circumstances of a comparator must be the same as those of the claimant, or not materially different: see section 23 of the Equality Act 2010. The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board [2012] UKSC 37. The burden of proof in discrimination claims[120]The burden of proof in a claim of discrimination is set out in section 136 of the Equality Act 2010. This states 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 subsection (2) does not apply if A shows that A did not contravene the provision.” 17 of 26[121]Section 136 prescribes two stages to the burden of proof: Stage 1 (primary facts) and Stage 2 (employer’s explanation). These are analytical stages rather than stages of the hearing (see Efobi v Royal Mail Group Ltd [2021] UKSC 33). Unless the circumstances are truly exceptional, the tribunal should hear all the evidence and submissions from both parties before finding the facts.[122]At Stage 1, all that is needed at this stage are facts from which an inference of discrimination is possible. The burden of proof is on the claimant (see Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913 and Royal Mail Group Ltd v Efobi [2021] UKSC 22). As it was put in Madarassy v Nomura International Plc [2007] EWCA Civ 33, primary facts are sufficient to shift the burden if “a reasonable tribunal could properly conclude” on the balance of probabilities that there was discrimination.[123]The Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142 gave guidance on two points in particular about Stage 2. Firstly, the employer must prove that the less favourable treatment was “in no sense whatsoever” because of the protected characteristic. Secondly, because the evidence in support of the explanation will usually be in the possession of the employer, tribunals should expect “cogent evidence” for the employer’s burden to be discharged. Victimisation Protected acts and the right not to be victimised[124]An employee who performs certain protected acts in relation to the Equality Act 2010 has a right not to be victimised because of such a protected act. In this regard, section 27 of the Equality Act 2010 provides as follows: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.” 18 of 26 The detriment must be “because” the Claimant did the protected act[125]For a detriment to amount to victimisation the employer must subject the employee to the detriment because of the employee having committed a protected act. “Because of” in this context does not mean that a “but for” test applies. Rather, in the words of Lord Scott in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48; [2001] 1 W.L.R. 1947 (11 October 2001) the Tribunal has to look for the “real reason, the core reason, the causa causans, the motive, for the treatment complained of”. The burden of proof in victimisation claims[126]The burden of proof provisions in victimisation claims work in the same way, with the same 2 stages, as in direct discrimination claims. Time limits for bringing claims: unfair dismissal[127]According to section 111(2)(a) of the Employment Rights Act 1996, complaints of unfair dismissal must be brought within 3 months of the Effective Date of Termination. According to section 111(2A), the 3-month time limit is extended when ACAS early conciliation begins within the 3-month time limit. The effect of section 207B is firstly(i) the period between the day after ACAS early conciliation starts, and the day ACAS early conciliation ends, is not counted towards a time limit; and(ii) if a time limit would expire between the day after ACAS early conciliation starts, and a day one month after ACAS issues the early conciliation certificate, then the time limit expires instead at the end of the period of one month after ACAS issues the early conciliation certificate.[128]The time limit (as extended by early conciliation) to bring an unfair dismissal claim can be extended in certain limited circumstances. Section 111(2)(b) of the Employment Rights Act 1996 states that a claim can be brought: “within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”. Time limits for bringing claims: discrimination and victimisation[129]According to the section 123 of the Equality Act 2010, complaints of discrimination and victimisation must be brought within 3 months starting with the date of the act to which the complaint relates. Conduct extending over a period (i.e. a course of conduct) is to be treated as done at the end of the period. The effect of section 150B of the Equality Act 2010 is that the same extension to time limits to take account of ACAS early conciliation applies as it does for unfair dismissal claims under section 111(2A) of the Employment Rights Act 1996.[130]The time limit (as extended by early conciliation) to bring a discrimination or victimisation claim can be extended in certain circumstances which may be wider than in unfair dismissal cases. Section 123(1)(b) of the Equality Act 2010 states that a claim can be brought within “such other period as the employment tribunal thinks just and equitable”. 19 of 26 Conclusions Unfair dismissal – time limits[131]The first dismissal which the Claimant says was a detriment, and an automatically unfair dismissal, was on 6 November 2019. Any claim in respect of this needed to be brought by 5 February 2020. Even allowing for ACAS early conciliation, the deadline would be 1 April 2020.[132]The claim was brought on 1 February 2021. The claim for automatically unfair dismissal in respect of the first dismissal is 10 months out of time.[133]The Respondent says that time cannot be extended because it was reasonably practicable to bring the claim in time. The Respondent relies on(i) the Claimant’s choice to withdraw from ACAS early conciliation and not to bring a claim to the Tribunal at the time;(ii) the Claimant having approached a legal representative;(iii) the Claimant’s online research about the Employment Tribunal; and(iv) what the Respondent says is the Claimant’s general knowledge of the legal system and helping other people to access it.[134]The Claimant says that when he read about ACAS, he knew that if he failed to bring a claim within 90 days, then if there was still a detriment he could bring the claim. Against the background of the circumstances of him regaining his job, he says it was not reasonably practicable for him to bring a claim within 3 months.[135]It would have been highly unusual for the Claimant to have brought a claim alleging a detriment or dismissal due to whistleblowing when the Claimant had been given his job back, and the continuing effect of the detriment had therefore ceased. In the Tribunal’s experience, this would have inevitably poisoned the relationship between employer and employee.[136]Nonetheless, the Tribunal concludes that whatever the justice and equitable merits of the situation, it was reasonably practicable for the Claimant to bring the unfair dismissal claim relating to the First Dismissal within the ordinary time limit. As such, the Tribunal does not have jurisdiction to hear the claim. Discrimination – time limits[137]If each of the claimed detriments relied upon is treated individually, the time limits for bringing the claims of discrimination and victimisation which rely on potentially out of time detriments are as follows:(1) The claim that on 6 November 2019 Nurse B refused to provide an induction for the Claimant before the First Dismissal needed to be brought by 6 February 2020. It is out of time by almost a year.(2) The claim that shortly after beginning work at Mornington Hall Care Home Mrs King said she was not prepared to work with the Claimant would need to have been brought by a date towards the end of May 2020. It is out of time by over 8 months.(3) The claim that shortly after beginning work at Mornington Hall Care Home 20 of 26 Mrs King sent the Claimant on holiday and said not to return to work until arrangements for his transfer had been made would need to have been brought by a date towards the end of May 2020. It is out of time by over 8 months.(4) The claim that on 25 March 2020, Nurse B refused to help the Claimant to toilet a resident needed to have been brought by 25 June 2020. It is out of time by over 7 months.(5) The claim that on 25 or 26 March 2020 Mrs King failed to investigate the Claimant’s compliant about Nurse B needed to have been brought by 26 June 2020. It is out of time by over 7 months.(6) The claim that until 1 August 2020, whilst the Claimant was on furlough, Mrs King denied the Claimant access to the training portal needed to be brought by 1 November 2020. It is out of time by 3 months.[138]All other acts were clearly in time. In particular, the acts alleged against Nurse B, with the exception of the specific incident on 25 March 2020, were continuing acts throughout the employment from March 2020 onwards. Further, the allegation that Ms King refused to recognise the online training that the Claimant had undertaken was an act that continued until the termination of the employment.[139]The Respondent argues that the detriments are not capable of being treated as a course of conduct. Rather, the Respondent says that they were specific single issues relating to the facts and events being considered at the time and have no relation to each other.[140]The Claimant in contrast argues that the detriments amount to a course of conduct stretching the course of his entire employment.[141]The Tribunal concludes that all of the actions of Nurse B and the detriments flowing from them amount to a course of conduct that began on 25 March 2020 and continued until the conclusion of the Claimant’s employment. The claims in relation to them are therefore all brought in time.[142]The other alleged detriments did not form a course of conduct.[143]In considering the justice and equitability of extending time to bring the claims in respect of the other alleged detriments, the Tribunal has considered the substantive merits of the cases. Based on the Tribunal’s reasons in relation to the substantive merits we would not in any event consider it just and equitable to extend time. In particular, as we set out below, there is no prima facie evidence that the other detriments were because of the Claimant’s race. In any event though, we do not consider it just and equitable to extend time in relation to those other alleged detriments, as there was no good reason for any delay in bringing a claim in respect of them to the Tribunal. Unfair dismissal due to making a public interest disclosure[144]Although we have decided that due to the time limit that applied the Tribunal does not have jurisdiction to hear the claim for unfair dismissal due to making a public 21 of 26 interest disclosure in relation to the First Dismissal, the Tribunal has nonetheless considered the substantial merits of the allegation. This is because what occurred at the time of the First Dismissal is said to have a bearing on what occurred at the time of the Second Dismissal.[145]The Respondent accepts that the Claimant raised with Manager A that the New Risk Assessment was inadequate and unsafe, and that that amounted to a protected disclosure.[146]The Claimant was dismissed by Manager A shortly after having made a protected disclosure. We have reminded ourselves that correlation is not the same as causation. However, in this case, the timeline speaks for itself and the Claimant has proven that there is no alternative explanation for the reason for his dismissal. The Claimant has proved that he was dismissed because he made a protected disclosure.[147]In respect of a verbal complaint made by the Claimant on or about 25 or 26 March 2020 to Ms King, that there had been an incident of neglect of a resident by Nurse B, this was also a protected disclosure.[148]We find that this protected disclosure, along with Ms King not wanting to work with the Claimant because of him previously having made a protected disclosure, provided the reason that Ms King had in her mind for the Second Dismissal.[149]The Claimant was not dismissed because of a failure to complete the training required within the probationary period. Rather, the non-completion of training courses, coupled with the email from HR that allowed the course of action taken by Ms King, gave a convenient pretext for the Claimant’s dismissal.[150]As such the Claimant was unfairly dismissed due to having made public interest disclosures. Direct race discrimination (Equality Act 2010 section 13)[151]The Claimant’s race is African.[152]The Claimant has proved that the allegations occurred in respect of all alleged detriments except(1) that Nurse B refused to provide the Claimant with an induction despite the Claimant being a new employee and it being standard practice that new employees should be provided with an induction;(2) the refusal to provide him with further training through access to the training portal while on furlough; and(3) the manner in which Angela Jacques conducted herself during the appeal process. In relation to the first of these, relating to induction, the actual evidence called differed from the allegation as set out in the list of issues, such that we were unable to conclude that the allegation in the list of issues in fact took place.[153]In relation to each of the allegations that have been proven to have occurred, they were treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances they were to their detriment. As such, each of those allegations were detriments. 22 of 26[154]However, only the following detriments were because of the Claimant’s race:(1) On 25 March 2020, Nurse B refused to help the Claimant to toilet a resident, telling him that this type of work was for Africans not for people of her race.(2) Nurse B told the Claimant that she would do whatever it took to make the Claimant’s life uncomfortable.(3) Nurse B repeatedly told the Claimant to “Fuck off”.[155]We concluded that these detriments were because of the Claimant’s race for the following reasons.[156]In respect of the allegation that on 25 March 2020, Nurse B refused to help the Claimant to toilet a resident, telling him that this type of work was for Africans not for people of her race, there is a prima facie case. The Claimant has given clear evidence of what occurred, and a Tribunal would be able to properly conclude that the detriment was because of the Claimant’s race. The Respondent has not then shown that race played no part in the reason for the conduct which we found took place.[157]In respect of the other two allegations relating to Nurse B, these flow from the toilet incident. There is a prima facie case for the same reason. Again, the Respondent has not then shown that race played no part in the reason for the conduct which we found took place.[158]In reaching these conclusions we note in particular that, in respect of those allegations, the Respondent did not subject Asian staff to the same treatment.[159]However, in respect of each of the other allegations we find that there was not a prima facie case that the detriments were racially motivated. In particular, the Claimant was not treated worse than Asian staff in the same position.[160]We therefore conclude that the Respondent discriminated against the Claimant on the grounds of race in respect of allegations that:(1) On 25 March 2020, Nurse B refused to help the Claimant to toilet a resident, telling him that this type of work was for Africans not for people of her race.(2) Nurse B told the Claimant that she would do whatever it takes to make the Claimant’s life uncomfortable.(3) Nurse B repeatedly told the Claimant to “Fuck off”. Victimisation (Equality Act 2010 section 27[161]Our factual finding was that the decision to dismiss in the Second Dismissal was on the ground of protected disclosures. It was not motivated to any extent by the Claimant complaining to Ms King about racial discrimination on 20 September 2020. There is no prima facie evidence from which a Tribunal could conclude that the Second Dismissal was because of any protected act that the Claimant may have made. 23 of 26[162]As such, a claim for victimisation cannot succeed. Wrongful dismissal / breach of contract[163]The Claimant was paid in lieu of notice. He was paid the full amount of 4 weeks’ wages owed to him.[164]The Claimant had no additional contractual rights.[165]There was no wrongful dismissal or breach of contract. Employment Judge Knight Dated: 17 January 2023 ANNEX 1: LIST OF ISSUES Time limits / limitation issues[1]Were all of the claimant’s complaints presented within the time limits set out in sections 123(1)(a) & (b) of the Equality Act 2010 (“EQA”) and section 48(3)(a) & (b) of the Employment Rights Act 1996 (“ERA”)? Dealing with this issue may involve consideration of subsidiary issues including:(1) Whether there was an act and/or conduct extending over a period, and/or a series of similar acts or failures;(2) Whether it was not reasonably practicable for a complaint to be presented within the primary time limit; whether time should be extended on a “just and equitable” basis; when the treatment complained about occurred.[2]Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 21 September 2020 is potentially out of time, so that the tribunal may not have jurisdiction to deal with it. Public interest disclosure (PID)[3]Did the claimant make one or more protected disclosures (ERA sections 43B as 24 of 26 set out below. The claimant relies on subsection(s) [ ] of section 43B(1). The respondent will set out its defence in the Amended Response.[4]What was the principal reason the claimant was dismissed and was it that he had made a protected disclosure?[5]Did the respondent subject the claimant to any detriments, as set out below? Included within this issue are the questions of what happened as a matter of fact and whether what happened was a detriment to the claimant as a matter of law.[6]If so, was this done on the ground that he made one or more protected disclosures?[7]The alleged disclosures the claimant relies on are as follows:(1) A verbal complaint made by the claimant in early November 2019 to the then General Manager, Manager A, that removal of bed rails posed a serious risk to the health and safety of residents, as confirmed in the written risk assessments carried out by the claimant and his staff.(2) A verbal complaint made by the claimant on or about 25 or 26 March 2020 to the then General Manager, Ms Pervine King, that there had been an incident in Humphries House of wilful neglect of a resident by Nurse B in refusing to assist the claimant to toilet the resident, with the result that she received no assistance for four hours.[8]The alleged detriments the claimant relies on are as follows:(1) The claimant’s dismissal in November 2019;(2) The claimant’s dismissal in September 2020. EQA, section 13: direct discrimination because of race, specifically the claimant’s African ethnicity[9]Did the respondent subjected the claimant to the following treatment:(1) Nurse B refused to provide the claimant with an induction despite the claimant being a new employee and it being standard practice that new employees should be provided with an induction.(2) Ms Pervine King telling the claimant on 22 February 2020 that she was not prepared to work with the claimant;(3) Ms King sent the claimant on holiday on 23 February without the Claimant requesting it, requesting that he not return to work until she had made arrangements for the claimant to be transferred.(4) On 25 March 2020, Nurse B refused to help the claimant to toilet a resident for a period of four hours, which amounted to neglect of the resident. Nurse B told her that this type of work was for Africans not for people of her race. 25 of 26(5) Failing to investigate the claimant’s complaint about the incident involving Nurse B on 25 March 2020, which was lodged on or about 26 March 2020.(6) Nurse B telling the claimant that she would do whatever it takes to make the claimant’s life uncomfortable.(7) Nurse B repeatedly telling the claimant to “Fuck off” from 27 April 2020 onwards;(8) Ms King refused to recognise the online training that the claimant had undertaken.(9) Ms King refused to provide the claimant with the further training that was a requirement of the role, by denying the claimant access to the Training Portal whilst the claimant was on furlough.(10) Dismissing the claimant;(11) The manner in which Angela Jacques, HR Adviser, conducted herself during the appeal process was a further detriment.[10]Was that treatment “less favourable treatment”, i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances, specifically Asian employees? The claimant relies on a hypothetical comparator.[11]If so, was this because of the claimant’s African ethnicity and/or because the claimant was not of Asian ethnicity? Equality Act, section 27: victimisation[12]Did the claimant do a protected act? The claimant relies upon a verbal complaint made on 20 September 2020 that the claimant was not being treated in the same way as his Asian colleagues in relation to being provided with training opportunities.[13]Did the respondent subject the claimant to any detriments as follows: (1) The decision to dismiss the claimant on 22 September 2020.[14]If so, was this because the claimant did a protected act and/or because the respondent believed the claimant had done, or might do, a protected act? Wrongful dismissal / breach of contract To how much notice was the claimant entitled?[16]Did the terms of the claimant’s contract of employment require that the respondent take additional steps before giving the claimant notice? 26 of 26