It is the unanimous judgment of the Employment Tribunal that:-[1]The claimant was not subjected to direct discrimination, in breach of s13 Equality Act 2010.[2]The claimant was not harassed, in breach of s26 Equality Act 2010.[3]The claimant was not victimised, in breach of s27 Equality Act 2010.[4]All of the claimant’s complaints that arise prior to 29 January 2018 are also statute barred pursuant to s123 Equality Act 2010.[5]The claimant’s complaints are hereby dismissed.
REASONS
[1]The claimant issued proceedings on 30 May 2018. He made various complaints of race discrimination. He was employed by the respondent from 2 March 2015. At the time he issued proceedings he said that he was a Lead Carer.[2]The date of receipt by ACAS of early conciliation notice was 16 April 2019 and the date that the early conciliation was issued was 16 May 2018.[3]The Response was received by the Employment Tribunal on 12 July 2018. The respondent confirmed that the claimant was still employed at the timer that he issued proceedings and that his description of his role was correct. The grounds of resistance denied direct race discrimination, harassment and victimisation.
List of Issues
[4]The parties had prepared an “agreed list of issues” at the outset of the hearing. The Employment Judge went through the list of issues with the parties at the commencement of the hearing. This was in order to clarify the matters to be determined by the Employment Tribunal and was in accordance with the overriding objective.[5]The parties’ agreed list of issues included background information and commentary which were removed by consent. The document also included apparent claims that had not be raised in the Claim Form. The claimant referred to further identified “Detriments suffered by Claimant”. Mrs Rogers clarified these allegations as being contained in a document in the hearing bundle at page 146-156 which Mrs Rogers said summarised the claimant’s complaint. This is the claimant’s “Grievance No.1” and “Grievance No.2” summary and was handed to the respondent at the grievance hearing on 13 March 2018. The claimant’s representative identified these further complaints, which the claimant contended amounted to less favourable treatment on the grounds of his race.[6]After going through the list of issues thoroughly, the following issues were identified for determination with the agreement and consent the parties: I. Direct Race Discrimination – Section 13 Equality Act 2010 1. The claimant identified himself as Black British and of African descent (Nigerian). 2. The claimant relied upon the following acts of alleged direct race discrimination:a. A. In October 2016, whilst providing personal care to resident EB1, Ms Fiona Smith (work colleague) made a comment referring to the claimant “you have a dark side”. 1 The identity of the residents of the respondent’s care home has been anonymised as it is not necessary for the determination to identify these individuals.b. B. In or around September/October 2016 in EB’s room, Ms Smith made a comment to the claimant “you fucking cunt”2.c. C. In or around September/October 2016 the claimant was updating Ms Smith on various residents’ issues and she responded, “stop fucking disturbing me on my break”.d. D. In September/October 2017 the claimant was asked to attend an unscheduled meeting with Ms Michelle Ball, HR Manager, and Mrs Alison Jayawardena.e. E. On 23 January 2018, Mrs Jayawardena advised that Ms Smith had made complaints against the claimant, given no prior notice: that the claimant had been disrespectful to her, that he had not prepared an Aymes-shake correctly and an issue concerning showering a resident.f. F. On 29 January 2018 Mrs Jayawardena threatened the claimant with disciplinary action if he did not act professionally towards Ms Smith. The respondent took no action against Ms Smith.g. G. On 2 March 2018 the respondent commenced disciplinary action against the claimant in respect of 3 different allegations which are set out in a letter from the respondent to the claimant on that date. The claimant said that the respondent did this despite: i. The claimant claiming that he was not at fault as he had alerted Senior Managers to all issues regarding residents’ medication which he fully documented; and ii. The claimant was not at fault as the medication errors when he was not on shift and also that fact that all staff share responsibility for all residents, some even have greater involvement than him. iii. Ms Penny Hammond (General Manager) having received a handwritten letter from Ms Ioana Rat (Lead Care Assistant) on 22 February 2018 admitting she had caused the medication errors. The claimant said that this was less favourable treatment because of his race and that he was deliberately (singled out) as a scapegoat by issuing him with disciplinary proceedings. II. Harassment – S26 Equality Act 2010 3. The claimant contends that the following amounted to harassment related to his race: A. The claimant alleges that throughout 2016-2017 Mrs Klara Scally, Nurse Care Manager, harassed him by3: 2 Because this is part of the claimant’s case it is appropriate to use the precise words alleged used. 3 The Judge attempted to get specifics in respect of these incidences, unfortunately no further details were forthcoming. i. interrupting him while he was working; ii. making him stand in a corridor or reception area humiliating him as people were passing by; iii. in a loud aggressive voice picking fault in what he was doing; iv. when the claimant tried to provide an explanation Ms Scally was dismissive towards him; she did not want to listen; and v. whilst the claimant was on his breaks Ms Scally would deliberately interrupt him demanding he escort doctors, social workers and nurses to various residents’ departments despite the fact that they were other lead carers available. B. On 2 March 2018, Miss Hammond, despite knowing that the claimant had undergone surgery and was at home recovering, instructed Ms Karen Warren, HR Manager, to issue him a letter via email: i. notifying him of a disciplinary hearing to be held in 2 days’ time; ii. requested an immediate response; iii. 1½ hours later Miss Hammond further harassed the claimant by sending another email herself once again demanding an immediate response; and iv. within her letter Ms Hammond implicated him in an incident when he was not even at work. C. From the day the claimant had surgery on 28 February 2018 until 6 March 2018, Miss Hammond: i. did not ask the claimant how he was feeling; and ii. continue to harass him while he was recovering from surgery by constantly sending emails demanding to know when he would be returning. D. On 31 January 2018 Mrs Jayawardena and Ms Warren requested the claimant attend an unscheduled meeting, notes were taken by Ms Warren but she did not provide a copy to the claimant. The respondent created an intimidating environment by firing allegations to the claimant, who is from Nigeria and not a native English speaker; the claimant stated he had insufficient time to think. E. On 2 February 2018 Mrs Jayawardena wrote to the claimant in a letter accusing him of an incident involving resident BC but did not provide any detail. F. On 7 February 2018 the claimant wrote a letter to Mrs Jayawardena requesting details of the BC allegation. The claimant alleges that Mrs Jayawardena never responded. G. On 20 February 2018 Mrs Jayawardena and Mrs Scally requested the claimant attend another unscheduled meeting with no prior notice, notes were taken by Mrs Jayawardena. Mrs Jayawardena and Mrs Scally demanded the claimant recall issues which had taken place weeks earlier [same concern as 31 January 2018].h. H. On 23 February 2018 Mrs Jayawardena and Ms Lorraine Hendry, Care Manager, requested the claimant to attend a further unscheduled meeting with no prior notice. The notes were taken by Ms Jayawardena were never agreed or signed by the claimant. Ms Jayawardena’s notes were enclosed with Ms Hammond’s disciplinary letter. Ms Jayawardena notes were not accurate, the claimant alleges that Ms Jayawardena lied about an issue discussed. Ms Jayawardena did not include within her notes the claimant confirming that he had requested assistance from Ms Hendry.i. I. On 27 February 2018 Miss Jana Krapkova, Dementia Care Manager, and Ms Hendry requested the claimant was send another unscheduled meeting with no prior notice. Notes were taken by Miss Krapkova. On 3 separate occasions, Miss Krapkova interrupted the claimant whilst he was giving medication to residents demanding in an intimating manner that he immediately signed her notes. The claimant advised Miss Krapkova that he was extremely busy and need time to read and check that her notes were accurate. The claimant alleges that Miss Krapkova responded in a very angry manner insisting he sign her notes. The claimant signed under duress. The claimant was undergoing surgery the next day. III. Victimisation – S27 Equality Act 2010 4. The protected act that the claimant relies upon is the claimant’s complaint of discrimination about Ms Smith in his grievance of 6 March 2018. 5. The claimant alleges that he suffered the following detriments as a result of having made the above protected act: A. On 9 March the respondent demoted the claimant from Lead Carer to Carer before allowing him the opportunity to defend himself. IV. Time limits 6. The respondent contended that all claims made prior to 29 January 2018 (i.e. statutory limitations plus additional early conciliation time extension) were out of time.
The law
[7]The relevant applicable law for the claims which we considered is as follows.[8]Under s4 Equality Act 2010 (“EqA”), a protected characteristic for a claimant includes race, which includes:(a) colour;(b) nationality; and(c) ethnic or national origin.[9]S13(1) EqA precludes direct discrimination: 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.[10]The examination of less favourable treatment because of the protected characteristic involves the search for a comparator and a causal link. When assessing an appropriate comparator, “there must be no material difference between the circumstances relating to each case”: s23(1) EqA. Therefore, the treatment of the claimant must be compared with that of an actual or a hypothetical person - the comparator - who does not share the same protected characteristic as the claimant but who is (or is assumed be) in materially the same circumstances as the claimant.[11]Importantly, in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL, Lord Nicholls said that: Employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the prescribed grounds, which is the foundation of the application?[12]This approach has been adopted in the number of subsequent cases. In London Borough of Islington v Ladele UKEAT/0453/08, the then President of the Employment Appeal Tribunal (“EAT”), Elias J, said that often, in practice, a Tribunal will be unlikely to be able to identify who the correct comparator is, without first asking and answering the question why the claimant was treated as he was. Until that question is answered, he said, the appropriate attribute of the comparator will not be known. His conclusion was that whilst comparators may have evidential value, often they cast no light on the ‘reason why question’.[13]In Amnesty International v Ahmed [2009] IRLR 884 the EAT determined that consideration of what the characteristics of a hypothetical comparator should be is “often a less useful way of addressing the questions raised by an issue of direct discrimination, than focusing on the fundamental question of the reason for the act complained of”. In Aylott v Stockton-on-Tees Borough Council [2010] IRLR 904 the EAT said “there is no obligation… to construct a hypothetical comparator in every case”. The EAT helpfully summarised the task in Cordell v Foreign and Commonwealth Office [2012] ICR 280: [D]irect discrimination [requires answers to] two questions –(a) whether the claimant has been treated less favourably than an actual or hypothetical comparator with the same characteristics [other than the prescribed ground] (‘the less favourable treatment question’), and(b) whether that treatment was [because of the prescribed ground] (‘the reason why question’). … where there is an actual comparator, asking the less favourable treatment question might be the most direct route to answer both questions; but where there is none. It will usually be better to focus on the reason why question than to get bogged down in the often arid and confusing task of ‘constructing a hypothetical comparator’.[14]The test for harassment is set out in s26 of EqA: (1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B… (4) In deciding whether contact has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect.[15]For allegations of harassment, there is no necessity to look for a comparator. As described in Rayment v MoD [2010] EWHC 218 (QB), [2010] IRLR the standard for harassment is conduct that is “oppressive and unacceptable”. The definition approaches the matter from the claimant’s perspective. Therefore, if a victim had made it clear that he found the conduct unwelcome, the continuation of such conduct will constitute harassment. Only if it would be unreasonable to regard the conduct as harassment at all will there be a defence here, but the test for connections between the conduct and the effect have been loosened so that unwanted conduct no longer has to be on the ground of the victims protected characteristic to fall within the definition, but only related to it.[16]Victimisation under s27(1) EqA is defined as follows: A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – B does a protected act, or A believes that B has done, or may do, a protected act.[17]A “protected act” includes bringing proceedings under the EqA, as well as giving evidence or making allegations that a person has contravened the EqA. There is no need to find a comparator for victimisation as it is only the treatment of the victim that matters in establishing causation; it is possible to infer from the employer’s conduct that there has been victimisation.[18]Drawing an inference is simply the process by which the Tribunal finds, from evidence which it regards as reliable, that it is driven to a further conclusion of fact. The Tribunal needs to be careful to ensure that the evidence really does lead to the conclusion that it reaches. Speculation, or attempting to fit the evidence to a particular theory, is not the same as drawing an inference from reliable evidence.[19]S136 EqA implements the European Union Burden of Proof Directive. This requires the claimant to prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of unlawful discrimination, and it is then for the employer to prove otherwise.[20]The cases of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205 and Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 931 provide a 13-point form/checklist which outlines a two-stage approach to discharge the burden of proof. In essence, this can be distilled into a 2-strage approach:a. Has the claimant proved facts from which, in the absence of an adequate explanation, the tribunal could conclude that the respondent had committed unlawful discrimination?b. If the claimant satisfies (a), but not otherwise, has the respondent proved that unlawful discrimination was not committed or was not to be treated as committed?[21]The Court of Appeal in Igen emphasised the importance of could in (a). The claimant is nevertheless required to produce evidence from which the Tribunal could conclude that discrimination has occurred. The Tribunal must establish that there is prime facie evidence of a link between less favourable treatment and, say, the difference of race and that these are not merely two unrelated factors: see University of Huddersfield v Wolff [2004] IRLR 534. It is usually essential to have concrete evidence of less favourable treatment. It is essential that the Employment Tribunal draws its inferences from findings of primary fact and not just from evidence that is not taken to a conclusion: see Anya v University of Oxford [2001] EWCA Civ 405, [2001] ICR 847.[22]Claims of discrimination in the Employment Tribunal must be presented within 3 months of the act complained of, pursuant to s123 EqA. Complaints of discrimination often extend over a period of time, so s123(3)(a) goes on to say that “conduct extending over a period is to be treated as done at the end of the period”. Employment Tribunals have a discretion to extend the 3-month period if they think it “just and equitable” to do so: s123(1)(b). The witness evidence[23]The Tribunal heard evidence from the claimant. The claimant had prepared a witness statement which he confirmed at the outset of his evidence. The claimant was cross-examined by Mr Jagpal. The Tribunal also ask questions to clarify some matters and Mrs Rogers are some questioned by way of re-examination.[24]A similar process was undertaken in connection with the respondent’s witnesses: Ms Fiona Smith (Care Supervisor); Mrs Klara Scally (Nursing Care Manager); Mrs Alison Jayawardena (Care Services Manager); Miss Jana Krapkova (Dementia Care Manager); and Miss Penny Hammond (General Manager). The respondent witnesses confirmed their statements, although Mrs Jayawardena altered some typographical errors in respect of the wrong year identified. The respondent’s witnesses were cross-examined by Mrs Rogers. Again, the Tribunal ask questions to clarify matters and Mr Jagpal was afforded the opportunity to re-examine his witnesses.[25]In addition to the “live” or oral evidence above, the respondent produced the written statements of Dr Mandy Bennett (Group HD and OD Director) and Mr Tom Ball (Group Finance Director). Dr Bennett and Mr Ball did not attend the hearing to give evidence. The Tribunal considered their statements and account of their evidence, notwithstanding that we gave this less white because these witnesses were not available for cross-examination. Dr Bennett and Mr Ball’s evidence did not relate to the central features of this case as no allegation of discrimination had been made against them.
Findings of Fact
[26]We (i.e. the Tribunal) made the following findings of fact. We did not resolve every dispute between the parties merely those that would assist us in determining the list of issues as set out above. Where we considered it appropriate, we set out our reasons for making such findings. In making our findings of fact, we placed particular weight on contemporaneous or near-contemporaneous documents and correspondence as a more accurate record of events. The statements of the parties and witnesses were, of course, central; however, these statements were written some time after the events in question and through the prism of either advancing or defending the appropriate claims.[27]The claimant commenced employment with the respondent on 2 March 2015. The claimant commenced work as a Day Care Assistant and was promoted to a Lead Carer on 5 October 2015.[28]The claimant and Ms Smith did not have a constructive working relationship. Ms Smith regarded the claimant as misogynistic and the claimant did not like her either. In 2016 the claimant was asked to attend a meeting with Mrs Jayawardena and Ms Michelle Ball, the then HR Manager. Ms Smith was also present. We cannot be precise when this meeting occurred because there was no documentary corroboration and, as these events occurred some time ago, the memories of those we heard from was hazy. Mrs Jayawardena reported that Ms Smith had made an allegation against the claimant and in response to her allegation the claimant raised a complaint in respect of Ms Smith. The claimant’s complaint concerned an incident which occurred sometime earlier, around February 2016, when Ms Smith and the claimant were attending a resident at the respondent’s care home. Ms Smith’s recollection of the incident, which we accept, was that the claimant started matters by asking the resident what she thought of Ms Smith, the resident said that she though Ms Smith as okay, whereupon Ms Smith then asked the resident what she thought of the claimant. The resident made a joking comment and then asked her what she thought of the claimant to which Ms Smith replied, “oh I think he has a dark side”. Ms Smith said that this was in the context of a jokey exchange in an ostensibly relaxed situation; however, Ms Smith said there was an underlying uneasy relationship between her and the claimant. The claimant contended that this comment was a racially offensive comment although he did not make any complaint at the time or take further action. Ms Smith contended that the claimant said to her after the incident, “I am gonna get you for that”.[29]The claimant contended that Ms Smith called him a “fucking cunt” in September or October 2016 in resident EB’s room, although his witness statement said that this incident occurred in the corridor. Furthermore, around the same time the claimant had another exchange where he said Ms Smith said, “stop fucking disturbing me on my break”. Ms Smith denies these allegations and because of the delay in raising this matter, the lack of any detailed account from the arguing parties or independent witness account or contemporaneous evidence, we make no findings of fact in respect of these incidents.[30]The claimant alleged that he was asked to attend an unscheduled meeting in September or October 2017. The claimant contended that the unscheduled meeting was with Michelle Ball, the HR Manager. We accept Ms Jayawardena’s evidence that Ms Ball left the respondent’s employment in July 2017 so the meeting must have occurred some months prior to the claimant’s estimated time frame. So far as we can ascertain this is the same meeting in which the respondent’s officials, Ms Smith and claimant discussed the “dark side” comment. The claimant’s complaint in respect of this issue is over the fact that it was an unscheduled meeting. Ms Jayawardena attempted to resolve the difficult relationship between the claimant and Ms Smith on an informal basis and was an appropriate way to deal with the matter. Disciplinary action was not envisaged against either the claimant or Ms Smith. Had this been a disciplinary hearing or a disciplinary interview then the ACAS Code of Practice on disciplinary matters requires that sufficient notice was to be given in order for an accused to prepare their defence to any disciplinary action being considered. Significantly there is no such requirement for an investigatory meeting (which may or may not be formal); nor is there any such requirement for notice to be given in advance of any facilitated meeting or discussion between 2 arguing employees. Consequently, we determine that there was no detriment or less favourable treatment to the claimant in this regard.[31]The claimant contended that he was harassed by Mrs Scally, the respondent’s Nurse Care Manager throughout 2016 through to 2018 in respect of interrupting him at work, making him standing at corridor, picking fault in what he was doing, being dismissive, not wanting to listen to him and deliberately interrupt his breaks when other staff were available. In evidence the claimant said that he believed Mrs Scally was “nitpicking” and that this was on the grounds of his race. When the claimant was asked why he did not report this so that the matter could be investigated further, he said, “at that time, I was mainly focusing on Fiona Smith”. Mrs Scally denies that she harassed the claimant either on the basis of his race or at all. She said that the claimant made no complaint to her at the time and that if he had she would have explained any corrective or other action that she took. She denied that she had been picking on the claimant.[32]This issue was first raised in the claimant’s grievance [Hearing Bundle page 149] which was handed in at the claimant’s grievance hearing on 13 March 2018. The claimant say he could not provide further details of these complaints against Ms Scally and in the absence of such details or any contemporaneous complaints it is difficult to take matters further. In respect of these unsubstantiated complaints, we do not find the alleged harassment to have occurred. Given the paucity of information, Mrs Scally could do little more than denying that these events occurred as she said that she had not been given any details of any particular incident. In evidence, she explained that staff may be interrupted for a variety of reasons in the care home and that this was part of the job when dealing with individuals in residential care; tasks were modified, cut short or reassigned. Mrs Scally said that she had never attempted to humiliate the claimant by making him stand in a corridor or reception. If she was dealing with a resident in a sensitive manner then, she said, she may well have asked the claimant to wait outside the resident’s room until that task had been completed but this would have been to preserve the confidentiality or modesty of a resident. Mrs Scally denied speaking to the claimant in a loud, aggressive voice. She denied picking fault with what claimant was doing and said if she did correct something that the claimant had done wrong, it was because the claimant had done something wrong that needed correction. Mrs Scully said that she had never dismissed the claimant when he tried to provide any explanation. In respect of interrupted breaks, Mrs Scully said she could not think of any particular instance, but that it was a common feature of the job that staff would take breaks, that issues would arise that needed to be dealt with immediately, and that staff would deal with the immediate issue and resume their breaks later. She said the claimant was treated no differently than any other member of staff in this regard. Interrupted breaks were an occasional feature of the job. She denied the claimant’s contention that he was interrupted when other Lead Carers were available. She said that the complaints against her were over little more than a manager doing her duties effectively. The claimant has the burden of establishing the facts asserted in the first instance. We accept, and prefer, the evidence of Mrs Scally in respect of these allegations. Consequently, we do not accept the claimant’s allegations occurred in respect of these matters.[33]Ms Smith’s complained about the claimant on 19 January 2018. On 23 January 2018 the claimant was invited to an unannounced meeting. This was an investigating meeting, so it was outside the respondent’s disciplinary procedure. The meeting was between Mrs Jayawardena and the claimant with Ms Karen Warren from HR taking notes. The matter was then dealt with under informal action. The respondent’s disciplinary procedure contains the following: Informal Action We normally deal with minor issues of misconduct or unsatisfactory performance informally. In some cases we may offer extra training, coaching, advice and support. This is a normal facet of day to day management and not part of our formal disciplinary procedure. As such it will not be appropriate or necessary to be accompanied by a work colleague or trade union representative. We hold informal discussions in private. We will take account of your opinions and any mitigating circumstances you provide. Criticism will be constructive. We aim to achieve and sustain improvement through such discussion. We may confirm what is agreed in writing where appropriate. If it emerges during discussion that the matter is more serious than previously envisaged, we will adjourn the meeting. We will reconvene at a later date under our formal disciplinary procedure. You may than be accompanied by a work colleague or trade union representative if this happens.[34]This way of handling matters was confirmed by Ms Hammond who stated that informal action was regular and directed to achieving a sustained improvement from members of staff. She said that the respondent did not usually recourse to formal disciplinary matter if “minor” matters could be dealt with informally. This was one such matter. Ms Smith had made the complaint against the claimant. Ms Smith complained about the claimant’s behaviour towards her – Ms Smith was by now the Care Supervisor and in a more senior position to the manager. Ms Smith also raised some specific instances which included:(a) where the claimant made an Aymes-shake (i.e. a nutritional supplement) with water instead of milk (milk being the usual base of this shakesupplement and the preference of the resident) ; and(b) where the claimant went into a resident’s apartment, BC’s, and told the resident to changes clothes as management said so, which made BC very angry.[35]The claimant’s evidence was inconsistent on this. The notes of the investigatory meeting (which we accept was accurate) stated that the claimant said he had not been told to make the Aymes-shake with milk however in the claimant’s note of 30 January 2018 he said that normally he prepared the Aymes-Shake with milk but on this occasion he was trying to make the Aymes-shake lighter so that the resident would drink it. In any event formal action was not taken against the claimant.[36]Mrs Jayawardena wrote to the claimant (in accordance with the disciplinary procedure outlined above) on 2 February 2018 stating: All the above issues were concerns and have now been addressed with you and I am confident that you have reflected on them and will make changes in your approach that needs to be made, and be more aware of residents’ feedback. I must advise you that any repetition of the above issues may be addressed within the disciplinary procedures.[37]Ms Jayawardena recorded these matters and such a recorded did not represent a formal disciplinary warning. It merely served as a record so that both the claimant and the respondent knew exactly where they were should any repetition reoccur.[38]On or around 29 January 2018 Mrs Jayawardena held a supervision meeting with the claimant. The note of this meeting is signed by the claimant on 30 January 2018. In this note [at page 67 of the Hearing Bundle] Mrs Jayawardena noted that the professional working relationship with Ms Smith was broken. She noted that neither felt able to communicate effectively with the other and that neither felt respected. She noted that other care staff were noticing and commenting upon the atmosphere and that the claimant stated he does not like working with Ms Smith although he would try. The note records under “Feedback given”: I have reiterated my expectation to Solomon that he will remain professional at all times to all members of staff especially those in the position such as the care supervisor role and that if there is further report of any reoccurrence, this will be manage more formally via the Disciplinary Procedure. I cannot guarantee that Solomon and FS will be allocated different floors and that they may have to work together in order to meet the needs of the service or in an emergency situation. Again I expect Solomon to communicate fully and with respect.[39]We heard evidence from both Ms Smith and the claimant. Both reported a fractious relationship. Ms Smith said that a difficult relationship had become particularly fractious after she was promoted to Care Supervisor with effect from 1 January 2018. She said that the claimant had not applied for the supervisory role. Ms Jayawardena said that Ms Smith approached him first saying that she was finding it increasingly difficult to communicate with the claimant, that he made her feel very uncomfortable in his presence and that he made her feel intimidated and undermined. Mrs Jayawardena said in evidence that she accepted Ms Smith’s point and she said that she believed the claimant had been struggling to accept Ms Smith’s promotion and being responsible to her.[40]Mrs Jayawardena then subsequently set out her expectations for the claimant – and not Ms Smith – because she accepted Ms Smith’s concerns.[41]Ms Jayawardena also set out in the second paragraph of her letter dated 2 February 2018 the claimant’s concerns that was raised against Ms Smith. At our meeting you told me that the incidents you were referring to had been several months ago and there had been no further incidents recently. You also stated that there were no witnesses. In light of the time lapse since the incidents and the lack of witnesses, we are unable to take any action unless we investigate further, which I am sure you will appreciate would be difficult but we will do so if you would like that to happen.[42]The claimant responded to Mrs Jayawardena’s letter on 7 February 2018, “On this occasion I do not wish to raise a formal Grievance against Fiona Smith.”[43]The claimant was asked to attend a meeting on 31 January 2018 with Ms Warren and Mrs Jayawardena. He subsequently recorded that the purpose of this meeting was to discuss my email dated 23 January 2018. He said that HR asked if I wanted to raise an official grievance against Fiona Smith. This was an appropriate question to ask the claimant because he had raised concerns about Ms Smith in his email of 23 January 2018. The claimant’s continued objections to unscheduled meetings is again misconceived in this instance. There was no contractual or other obligation for the respondent to give notice for any such meeting. The meeting’s intention according to the claimant was to discuss correspondence in which the claimant said that he wanted to “place on record” that he objected to Ms Smith’s language towards him. Given the claimant’s email of 23 January 2018 it was an appropriate and reasonable management response for Ms Warren and Mrs Jayawardena to meet with him, even if it was unannounced. The claimant raised issues that arose 2 years previously and Ms Jayawardena asked why the claimant was raising these matters now. Again, this was a reasonable question from a senior manager. From the claimant’s record of the meeting we can find nothing to suggest that allegations were fired at him. Indeed, from the claimant’s record of the matter, which was dated 2 February 2018, there was not any allegation put to the claimant.[44]The meeting of 31 January 2018 was not referred to directly in Mrs Jayawardena’s statement, nor was it put to her in cross-examination. Ms Warren did not make a note of this meeting according to Mrs Jayawardena and the claimant’s near contemporaneous note does not record Ms Warren as making notes which appears to be in keeping with the informal discussion. The claimant subsequently contended that Ms Jayawardena demanded instant answers and that he said that his English was “not at the same level”, but, when asked at the hearing about this allegation, the claimant said that he did not raise this as either something to be taken into account or an appropriate adjustment at the time. The claimant’s record suggests the purpose of the meeting was relatively straightforward. The claimant had complained about Ms Smith’s language (and the incidents were quite old). He was asked if he wanted to raise this formally and the claimant declined. The claimant said that he wanted this dealt with in a supervision meeting with Ms Smith. The claimant proffered an explanation as to why Ms Smith was allegedly “unpleasant” towards him and, the claimant said, that was because Ms Smith was annoyed that the claimant had been promoted to Lead Carer and she was not promoted at that time, so at that stage, the claimant did not raise possible race discrimination. We deduce that it was reasonable for Mrs Jayawardena to expect the claimant to be able to answer the questions in respect of his complaint against Ms Smith and based on the contemporaneous account of the meeting, we are not satisfied, that this was an intimidating environment that had been created.[45]The matter involving the 2 February 2018 incident where Mrs Jayawardena wrote to the claimant accusing him of an incident involving resident’s BC but did not provide any detail arose from both BC raising a concern and also featured in Ms Smith’s complaint of 19 January 2018. We have examined the documents carefully and we cannot trace that the BC matter was raised with the claimant. The claimant picked up that the BC complaint had not been raised with him and he wrote to Mrs Jayawardena on 7 February 2018 requesting details about that allegation. This was contained in a response to the 4 issues that had been raised and also referred to his poor relationship with Ms Smith.[46]The fact that Ms Jayawardena did not respond to this letter is, the Tribunal regards, as understandable. She did not want to prolong any dispute particularly as the claimant had not been subjected to further action following the 3 issues that Mrs Jayawardena felt that there was substance to.[47]Again in respect of 20 February 2019 again this is an issue in which the claimant objects to not receiving notice from a meeting and the respondent’s demand that the claimant recall issues which had taken place weeks earlier. The meeting record of 20 February is at page 89 in the hearing bundle. It is reasonable to expect a member of staff to recall these incidences. The claimant’s complaints in respect of unscheduled meetings were over just normal management meetings.[48]On 27 February 2018. Ms Lorraine Hendry (Residential Care Manager) met with the claimant to discuss patient GB who had not been taking the medication set out in her care plan and had been hiding the tablets. Miss Jana Krapkova (Dementia Care Manager) attended this meeting to take notes. The meeting was unscheduled in that the claimant had not been given prior notice; however, this meeting was an investigative meeting and as such did not form part of the respondent’s disciplinary procedures. There was no statutory or contractual requirement to give notice for this meeting.[49]The claimant contended that Miss Krapkova interrupted the claimant on three separate occasions and angrily demanded that he immediately signed the notes, which claimant said he did under duress. Ms Krapkova account differs considerably. She said she approached the claimant and asked him to read and confirm the note of the meeting. Miss Krapkova said that the claimant queried a couple of points which she went back and amended. This is confirmed in the claimant’s statement. She said that she then returned to the claimant with amendments and the claimant signed the attendance note. We prefer Miss Krapkova’s version of events. Miss Krapkova was clear and convincing in her account. She gave the claimant the notes of the meeting and then amended these notes to take into account the claimant’s comments. The claimant was not able to explain why the notes were still incorrect and that he then objected to signing these. We are not at all persuaded that Miss Krapkova was bullying or intimidating towards the claimant. She merely asked him to sign the record of the meeting which claimant did. He did not make any amendments to the document, nor did he annotate with his signature that he was signing under protest. He merely signed and dated the document as did Miss Krapkova.[50]On 2 March 2018 Miss Hammond (General Manager) wrote to the claimant to invite him to a disciplinary hearing. The letter said: The purpose of the hearing is to provide you with an opportunity to present your explanation for the following allegations:– 1. You failed to follow the correct procedure when you partially completed the incident form for JG, and then left it on the residential manager’s desk rather than put it in the incident form rack in the care office. You also fail to insured a family had been made aware of the error. 2. You advised resident MC that ‘you are too busy’ when she advised that she had run out of cream for her legs. You failed to inform any of the management team and request assistance. 3. You completed a medication competency and a care plan for resident GB on 11/2/18 identifying that although she was self-medicating, she was refusing to take her medication. At this time she had already not taken 2 days of the current month. You stated in the care plan that the care staff should monitored this weekly. When the med change over was undertaken last weekend, GB had not taken any of her monthly mates and there was no evidence that you had followed up with the weekly checks or taken any action. I should remind you that as the hearing is of a disciplinary nature, you are entitled to be accompanied by a work colleague or trade union representative. Please find enclosed our Disciplinary policy and copies of all Investigation evidence that will be used during the Disciplinary Hearing: 1. Meeting with Alison CSM 23rd February 2. Meeting with Lorraine Hendry 27/2/18 3. Meeting with KS 20/2/18 4. Care Plan and made competency dated 11/2/18 The outcome of this hearing could result in you being issued with a warning in accordance with our disciplinary procedure…[51]The claimant returned to work on 9 March 2018 following a brief absence. The claimant had been involved in issues involving the management of medication that had not been resolved. Miss Hammond informed the claimant that it would not be appropriate for him to administer medication until either the disciplinary issues had been resolved or the claimant undertook some additional training. We accept Miss Hammond’s contention that this was the respondent’s normal policy in such situations and that such restrictions were applied a number of times to other Lead Carers. The claimant was not demoted as alleged, he was merely told that as an interim measure, it would not be appropriate for him to administer medication.[52]The claimant has been absent from work since March 2018 due to sickness and had not returned to work by the date of this hearing Our determination Direct discrimination[53]The comment that referred to the claimant as having “a dark side” is not overly discriminatory in terms of the words said. Ms Smith contended that her comment was innocuous and not based on the claimant’s race. The comment reflected Ms Smith’s perception that the claimant was underhand; that the claimant was well-liked by the managers but difficult to work with and that he did not pull his weight.[54]There is no dispute between the claimant and Ms Smith about the precise words used during this exchange. Commenting upon an underlying “dark” personality or persona is not less favourable treatment on the basis of someone’s race. This is a commonly used phrase, although we recognise that such a phrase is becoming increasingly clumsy. The claimant as a male and a black British man of African descent, was in a minority in this workplace so we accept he may have been sensitive in respect of comments directed towards him. Once the claimant raised this complaint, it was dealt with by Mrs Jayawardena in a facilitated meeting, perhaps a month later. Ms Jayawardena reported Ms Smith saying to the claimant that she did not mean to offend the claimant and she apologised for any upset that she caused. Ms Jayawardena told Ms Smith that she needed to be careful and sensitive to the language and terms she used as these could be easily misinterpreted or misunderstood. She was asked not to make such comment again as it was interpreted by the claimant as being offensive on the grounds of his race. It seems to us that Mrs Jayawardena gave the claimant the benefit of the doubt that this comment could be so interpreted.[55]This was a clear and appropriate way to deal with such an issue. Language evolves and individuals have different sensitivities. Having heard Ms Smith’s evidence we accept that she did not mean any racial slur and we also note that there was no accusation that Ms Smith used any racially offensive language either before or after this incident.[56]Having heard evidence in respect of the claimant’s work commitment, his aptitude and his unwillingness to accept criticism, we find that Mr Smith’s perception of the claimant was genuinely felt. The reason why she made this comment was because the claimant started the uneasy exchange. He asked a care home resident what she thought of his colleague. This was perceived by Ms Smith to be either mischievous or provocative. In any event, it was unnecessary and inappropriate for the claimant to start down this course and Ms Smith’s comment was bumbling, but we do not accept the reason why she made the comment was because of the claimant’s race. We reject the claimant’s contention that the comment was a racially offensive comment in any event. In the context of this exchange, we are satisfied with Ms Smith’s explanation that the comment was neither made on the basis of the claimant’s race, and we determine that this comment did not have the effect of racial insult.[57]In respect of allegation 2B and 2C from the list of issues above, the claimant said that he regarded these comments as being offensive and that Ms Smith made the comments because of his race. These allegations are historic, and the claimant did not raised them at the time so the respondent did not have the opportunity to investigate these incidents. We were hindered from coming to proper findings of fact by the lack of precision in respect of these allegations. Effectively, the claimant’s case is that, some considerable time ago, Ms Smith used offensive language to him in circumstances that he now says amounted to less favourable treatment on the grounds of his race. The claimant said that he did not report this because he was dissatisfied with the outcome of his previous complaint to Mrs Jayawardena, although we are satisfied that Mrs Jayawardena handled the claimant’s previous complaint in 2016 correctly.[58]The complaint is effectively distilled down to 2 vague and old allegations where we expect a more current and precise or, at least, less vague allegations. In that context, it was difficult to press Ms Smith further than her bare denial. However, we are not satisfied with the claimant’s explanation that he did not take this complaint further at the time because he knew he would not get a fair reception. Furthermore, the claimant’s case is undermined as he was the more senior employee. At this time Ms Smith was a Carer and the claimant was a Lead Carer. All parties were clear that such language in the workplace was not acceptable, particularly as such words had the potential to be overheard by residents. Such language would have been even more unacceptable from a junior member of staff to a more senior colleague. Under the circumstances, we prefer the evidence of Ms Smith and we do not accept that such exchanges occurred in the manner alleged by the claimant or at all.[59]On the basis of our fact-finding, we found that there was no detriment or less favourable treatment in respect of allegation 2D, which, in any event occurred some months prior to the time frame contended by the claimant. This allegation is dismissed as misconceived.[60]The claimant’s complaint about the meeting of 23 January 2018 centred on the fact that that he was not given any notice of the meeting. The claimant’s allegation was incorrect because the complaints that Ms Smith had made were in connection with the claimant’s alleged animosity to her, an incident involving resident LT, the Aymes-shake incident, the care of resident LS and the BC clothes incident (rather than the showering incident as contended). All of these issues warranted Mrs Jayawardena’s investigation and Mrs Jayawardena attempted to resolve this without escalating the matter further. Given the facts that we have found, we determine that there was no less favourable treatment in respect of this allegation. The claimant was not entitled to any notice in respect of this meeting and Mrs Jayawardena was keen to avoid dealing with this in any disciplinary manner so as to save escalating the dispute.[61]The claimant alleged that on 29 January 2018 Mrs Jayawardena threatened the claimant with disciplinary action in a supervision meeting and in the record of this meeting. This arose from the breakdown of the relationship between the claimant and Ms Smith and that Mrs Jayawardena did not record a similar note or warning for Ms Smith. The claimant contended that this was discrimination on the grounds of his race, effectively Mrs Jayawardena sided with a white employee against a black employee. This was not a case of six-of-one and half-a-dozen of the other. Ms Smith was by then the more senior member of staff and Mrs Jayawardena had accepted that she had been undermined in her role by the claimant. Ms Jayawardena discussed these concerns with the claimant at the meeting and also asked the claimant if he wanted to raise a grievance against Ms Smith which the claimant confirmed that he did not. Subsequently to find the claimant at fault and cautioned him again repetition of this ongoing behaviour was, in the opinion of the Tribunal, an appropriate management response. We do not accept that the claimant was treated less favourably on the grounds of his race. Even if the claimant was to establish that he had been treated less favourably than, say, Ms Jones, Ms Jones was not the appropriate comparator because she was in materially different circumstances from the claimant. The crux of this issue rests on the supervisor approaching Mrs Jayawardena first and complaining about the behaviour of a subordinate and difficult employee. The claimant’s contention that he should have been treated the same as Ms Smith, in that she should have been cautioned about her ongoing behaviour also completely misses the point. The claimant was cautioned about his future conduct, it was appropriate to do so, and we reject his contention that this was on the grounds of his race.[62]In respect of allegation 2G, this complaint is surprisingly premature; the claimant submitted his discrimination claim on the basis that the respondent called him to account, i.e. pressed him for an explanation, in respect of disciplinary allegations (and significantly not disciplinary conclusions). It is not the function of the Employment Tribunal to effectively run a disciplinary process where such proceedings were not progressed. The claimant took some time at the hearing to go through his defence or response to disciplinary action. That effort should have been directed toward the internal disciplinary process. The claimant provided a defence that may or may not have been accepted by the respondent. Miss Hammond said that the disciplinary case was not progressed further because the claimant had not been in work through is his ill health. In evidence, Ms Hammond said that, the respondent did not proceed with hearing the disciplinary case in the claimant’s absence in the period since March 2018 because they did not want to make the claimant’s stress and anxiety worse and as the claimant had recourse to Employment Tribunal proceedings, the respondent effectively stayed the disciplinary process until after the conclusion of this hearing. Our task in respect of this complaint was to assess, firstly, whether there was a case to answer and, if there was not, whether such a case was brought on the grounds of the claimant’s race. We are not going to deliver a disciplinary outcome. Accordingly, the claimant’s defence has little relevance because we are not going to make a determination beyond whether there was a prima facie disciplinary case to answer; and this is a relatively low threshold.[63]The invitation to the disciplinary hearing by Miss Hammond set out in enough detail the nature of the allegations against the claimant. Miss Hammond provided the claimant with a copy of the disciplinary policy and a copy of the evidence that she would rely upon. Ms Hammond advised the claimant of his entitlement to be accompanied and that the maximum penalty he faced was a warning, i.e. the allegations were being treated as a misconduct offence (and not a gross misconduct offence). The claimant’s job was never on the line over these matters.[64]We have gone through the allegations and the documents sent to the claimant. We are satisfied that there is a prima facie case to answer, so there is a clear basis upon which the respondent had recourse to a disciplinary process. We were satisfied and that the maximum penalty that might be imposed (should the allegations be found proven) was not disproportionate in the circumstances. The claimant was subjected to less favourable treatment because the respondent had recourse to disciplinary action. However, Miss Hammond said that she had recourse to disciplinary proceedings largely because the claimant made continual and avoidable errors and there was no indication he had learned from previous mistakes. There were no actual comparators available who had made the previous errors that the claimant had made and/or who had made the 3 medication errors in respect of the disciplinary allegations. We determine that a hypothetical comparator in similar circumstances to the claimant but not black British or of African descent, would have been subject to an invitation to a disciplinary hearing. Harassment[65]The reasons stated above, we make no findings in respect of the allegations against Mrs Scally. In the absence of clear and specific incidents, we were not able to press Mrs Scally beyond her denial, which was in any event as full as possible and also credible and convincing. So, we conclude that this allegation is fundamentally misconceived.[66]In respect of allegation 3B, the claimant was sent a disciplinary invitation letter on 2 March 2018 notifying him of a disciplinary hearing to be held on 6 March 2018, so this complaint is factually wrong. The letter did not request an immediate response; he was merely asked to confirm his attendance at the above hearing upon receipt of this letter, which is a frequent practice and represents no particular detriment. From the email trail provided we cannot ascertain whether he was contacted an 1½ hours later, however, at 18:40 Miss Hammond wrote to the claimant stating that she hoped he felt better, that Ms Warren had forwarded a letter regarding the disciplinary hearing for Tuesday and requested that he confirm with Ms Warren or herself that the claimant will be attending. This was not harassment and it was fundamentally misconceived to content it was. Point (iv) of allegation 3B, is not an allegation, it is an observation or defence by the claimant.[67]In respect of allegation 3C, from the email trail supplied in the hearing bundle between pages 118 to 119, we see that Ms Hammond said to the claimant “I hope you are feeling better” on 2 March 2018 at 18:40 and on 5 March 2018 at 18:57 she said “I am really sorry to hear that you are unwell after your treatment”. Irrespective of whether or not it seriously constitutes a detriment (such to warrant spending Employment Tribunal time resolving such an issue), Miss Hammond demonstrated some degree of pastoral care and support for the claimant in her communication. During this period, Miss Hammond asked the claimant when he was due to return to work because this was not clear. A disciplinary hearing was outstanding, and the claimant was a Lead Carer so, Miss Hammond would need to know if she required someone to cover the claimant’s shift. Miss Hammond did not harass the claimant at all, she did not demand to know when he would be returning. She merely asked politely when he would return to work. This is no detriment and such an allegation is again misconceived.[68]The claimant’s allegations at 3D, 3G and 3H are in respect of normal management meetings investigating various issues; the first meeting in respect of the claimant’s email of 23 January 2018 and asking him if he wished to raise a grievance against Ms Smith; the second meeting in respect of investigating a medication error on 20 February 2018; and the third meeting was in respect of another fact-finding meeting to ascertain whether the claimant had administered some pain relieving cream for patient MC. The claimant was asked reasonable questions. Other than the claimant’s subsequent contention that he was intimidated, the contemporaneous notes suggest a proper purpose for these meetings and no untoward conduct. Indeed, the lack of contemporaneous complaint convinces us that the claimant is grasping at straws in respect of these allegations.[69]In respect of allegation 3E, Mrs Jayawardena does not refer to in her statement. Her notes of the investigatory meeting raise a number of specific instances, but the BC clothes incident was not referred to. In her evidence, Mrs Jayawardena referred to her frustration about having to sort out the claimant’s easily-avoidable mistakes that appeared to be proliferate. The focus of her interview with the claimant was on his attitude to Ms Smith. That said, the BC matter was not raised with the claimant and it was an error to write to him and include this example when cautioning him about his future behaviour. This incident might be relied upon if the claimant did not heed Mrs Jayawardena’s instruction and disciplinary action could well have followed. However, we are not satisfied that this is a detriment based on the claimant’s race. It is clearly an oversight on Mrs Jayawardena’s behalf. She should have discussed the matter with the claimant, but she did not. Disciplinary action was not pursued in respect of this allegation, but the BC clothes incident was something that could have been taken into account at a future stage. In any event, the incident in itself, was not particularly serious, Mrs Jayawardena had obviously accepted there was some substance to the matter having spoken to BC and Ms Smith and the claimant was able to raise his explanation, should the matter be raised more formally. The fact that the Claimant raises this as an act of harassment does not satisfy us that this was intended to create an intimidating atmosphere. The accusation stood as one issue in respect of many and we are satisfied that Mrs Jayawardena’s failure to obtain the claimant’s response was not aimed at or gave rise to creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.[70]It is not an instance of harassment to fail to respond to an enquiry about the details of an allegation in this instance. We state above, why we have decided that it was an error for Mrs Jayawardena to fail to bring this to the claimant’s attention, but for the above, we do find that Mrs Jayawardena failure was for a reason related to the claimant’s race. Consequently, allegation 3F is also rejected.[71]Finally, in respect of allegation 3I, we make no findings of detriment for the reasons we set out in our findings of fact section. Consequently, this claim is also without foundation. Victimisation[72]The claimant returned to work on 9 March 2018, the claimant had been involved in the medication error for JG, appeared to have failed to obtain or notify any managers that MC did not have any arthritis cream and it was alleged that he failed to report that GB had not been taken his medication. The complaint of victimisation rests on the claimant’s contention that colleagues and residents were asking why he was not carrying out his regular job. Notwithstanding, that we accept, dealing with medication was a significant part of the claimant’s job, it was not all of his job as a Lead Carer and his duties were not otherwise restricted. He continued to be paid his normal wages Consequently, he was not demoted.[73]An interim measure had been put in place to the effect that the claimant was not to administer medication until the outstanding medication-related issues were resolved. This appears a rational and appropriate measure taken by Miss Hammond in such circumstances. Indeed, it would be difficult to justify the respondent not taking such interim action where a question had been raised about the administration of medication and there appeared to be some veracity in the allegations. Miss Hammond referred the medication errors to the external regulator, which convinced us further that she responded to these errors by the book. We accept Mr Hammond’s evidence that other staff of all levels, including those more senior than the claimant, had been subject to such interim medication restrictions. In any event, the claimant was not demoted, as he contended, and he was not denied the opportunity to defend himself. Such a restriction had absolutely nothing to do with the claimant’s complaint of 6 March 2018 and accordingly, we find that this complaint is misconceived. Time limits 74. in his grievance of 5 March 2018. The claimant made allegations of race discrimination and harassment against 6 members of the respondent staff. At the hearing, the claimant pursued the following allegations: 3 allegations of direct race discrimination against Ms Smith; 3 allegations of direct race discrimination and 5 allegations of harassment against Mrs Jayawardena; 1 allegation of direct race discrimination, 2 allegations of harassment and 1 allegation of victimisation against Miss Hammond; 2 allegation of harassment against Mrs Scally; 1 allegation of harassment against Miss Krapkova. This represented a significant conspiracy which the claimant could not sustain. Therefore, as we did not accept any of the claimant’s allegations of discrimination, there could be no continuous pattern of discrimination or any such conspiracy. Therefore, it follows that any claim made prior to 29 January 2018 were out of time.[75]The claimant proffered no good reason why he could not have issued proceedings within 3 months of the statutory limitation period, plus any period to allow for early conciliation, for the “old” complaints. Accordingly, we determine that all claims made prior to 29 January 2018 were out of time pursuant to s123 EqA and are statute-barred.