Miss Z Fossard v Zero Three Care Homes LLP: 3220651/2020

EMPLOYMENT TRIBUNALS

Case No 3220651/2020

Between

Miss Z FossardClaimant

Zero Three Care Homes LLPRespondent

Before

Employment Judge A M Buchanan

In person for claimant

Mr Nathaniel Caiden (instructed by Counsel) for respondent

Date 19 July 2024

JUDGMENT

ON PUBLIC PRELIMINARY HEARING It is the judgment of the Tribunal that:

[1]The complaint of unfair dismissal howsoever advanced pursuant to the provisions of the Employment Rights Act 1996 (“the 1996 Act”) is dismissed on withdrawal by the claimant.

[2]The reference in respect of a redundancy payment pursuant to section 163 of the 1996 Act is dismissed on withdrawal by the claimant.

[3]It is not appropriate at this stage to strike out on the basis of no reasonable prospect of success any of the remaining complaints of the claimant pursuant to Rule 37(1)b of Schedule I to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the 2013 Regulations”).

[4]It is not appropriate to make a deposit order at this stage pursuant to Rule 39 of the 2013 Rules in respect of any specific allegation or argument now advanced by the claimant. Case Number: 3220651/2020

[5]Orders are issued separately which clarify the issues in the complaints now advanced and make appropriate case management orders.

[1]The Claimant’s claim of harassment contrary to Sections 26 and 40 of the Equality Act 2010 arising out of remarks made about her figure and appearance succeed. The tribunal held that the remarks related to sex and race.

[2]All other claims brought by the Claimant of harassment contrary to sections 26 and 40 of the Equality Act 2010 and/or her claims of direct discrimination contrary to Sections 13 and 39 of the Equality Act 2010 fail and are dismissed.

[3]The matter shall be listed for a further hearing to determine what, if any, remedy the Claimant is entitled to. JUDGMENT having been sent to the parties on 23 August 2023 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:

REASONS

[1]The Respondent owns and operates a residential care home for young people many of whom have significant needs. The Claimant identifies as being French Mixed Race. She was employed by the Respondent from 20 April 2020 until 23 October 2020 when her employment was summarily terminated with a payment in lieu of notice. The reasons given for that dismissal were that the Respondent considered that she had failed her probation period.

[2]It is the Claimant’s case that during her employment there were numerous instances where she was treated badly and that these were either harassment or direct discimination. The protected characteristics relied upon are race and sex. The Claimant says that the conduct culminated with her dismissal which she says was discriminatory.

[3]The Claimant approached ACAS for the purposes of Early Conciliation on 12 November 2020 and obtained an Early Conciliation Certificate on 12 December 2020. She presented her claim on 15 December 2020. She has brought claims under sections 13 and 26 of the Equality Act 2020 (some but not all being alternative claims).She had included claims of unfair dismissal and a claim for a redundancy payment but they were struck out as part of the case management process.

The Hearing

[4]At a preliminary hearing before EJ Buchanan on 1 November 2021 the Claimant’s claims of unfair dismissal and claims for a redundancy payment were struck out. A list of issues was prepared. That list starts with a summary of the factual allegations. These were drawn from the Claimant’s ET1. There are 19 paragraphs in the list of issues but only 17 recorded issues (two paragraphs confirm that no issue is raised). The list of issues then identifies which claims are said to be allegations of harassment and which are said to be direct discrimination.

[5]We shall not reproduce the list of issues within this judgment. The parties have the list and that is sufficient for them to understand these reasons. The parties confirmed at the outset of the hearing that the list of issues included all of the issues that the Tribunal were invited to determine.

[6]EJ Buchanan had made standard directions including directions for the exchange of witness statements. We received narrative statements from the Respondent’s witnesses. The Claimant had provided a witness statement but it was very short and covered only two pages. She had provided a chronology which included some additional detail. The list of issues as we say was culled from the Claimant’s ET1 and there were details of each allegation.

[7]We raised a concern with the claimant at the outset of the hearing that her statement, of itself, lacked any details about what she said had occurred in the workplace. We discussed what might be done to rectify any deficiency in the statement. The parties had waited an inordinate time for a final hearing and nobody supported the idea of a postponement. We suggested that when the Claimant gave evidence she might be permitted to adopt her grievance, her ET1 and her witness statement as her evidence in chief. The Respondent had no objection. With the agreement of both parties that is the course we took. Mr Brown conducted her cross examination of the Claimant by taking her one by one through the allegations that she made. That approach allowed the Claimant to supplement her written evidence with a description of each event. As such we considered that there was no prejudice to the Claimant because she had not understood what was anticipated by an order to exchange witness statements. In fairness to EJ Buchanan his order was very helpful in its description of what was required.

[8]We heard from the following witnesses: 8.1. The Claimant herself who as we have said adopted her witness statements and the other documents that set out her account of events; and 8.2. For the Respondent, and in the order they were called; 8.2.1. Angela Costin, who at the time of the Claimant’s employment was a Support Worker who was a Key Worker for a service user ‘M’; and 8.2.2. Charlotte Cashman, who at the time of the Claimant’s employment was the Deputy Home Manager. She is the daughter of the owners of the business; and 8.2.3. Bethany Drudge, who at the time of the Claimant’s employment was a Support Worker who started on the same day as the Claimant; and 8.2.4. Reece Cashman, who at the time of the Claimant’s employment was a Designated Responsible Person. He is married to Charlotte Cashman; and 8.2.5. Lynsey Langham, who at the time of the Claimant’s employment was a Support Worker but was promoted to be a Senior Support Worker in May 2020; and 8.2.6. Sasha Cambron, who at the time of the Claimant’s employment was the Home Manager at Massenet House where the Claimant worked; and 8.2.7. Gemma Cooper who from 1 July 2020 was the Area Manager for Massenet Care home.

[9]The Tribunal were provided wit a bundle of documents that had 2438 pages initially. Additional documents were disclosed and were included during the hearing without objection by the parties. The only additional document that proved contentious was a google review of the Massenet Care Home which was critical of the way the home was run. The Claimant sought to introduce that document at the conclusion of the evidence. That document had no probative value in respect of the matters we needed to consider and whilst we read it we did not include it in the bundle and had no regard to it when making our decisions.

[10]The Tribunal spent the morning of the first day reading before hearing evidence. The evidence concluded on the fourth day of the hearing. We gave our oral reasons for our decisions on the final day. There was a little time left to deal with remedy whilst we encouraged the parties to seek agreement they were unable to do so. A remedy hearing has been listed to deal with all outstanding matters.

Findings of fact

[11]In reaching our factual conclusions we had regard to all the evidence whether oral or in writing that the parties placed before us. We have restricted our findings of fact to what is strictly necessary to reach a conclusion on each of the issues before us. In this section we set out some general findings of fact. These are not the entirety of our findings and we draw from these findings in the section below headed discussion and conclusions and in some cases make additional findings. Those additional findings are principally concerned with the reasons why the events occurred as they did.

[12]We remind ourselves of the fallibility of human memory. In an essay, “The Business of Judging”, “The Judge as Juror: The Judicial Interpretation of Factual Issues” Lord Bingham, quoted Lord Justice Browne’s apt observation: ‘The human capacity for honestly believing something which bears no relation to what actually happened is unlimited.’

[13]Highly relevant in this case is the description which Leggatt J set out in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor

[2013] EWHC 3560 (Comm)

(15 November 2013), paras 15-21, in relation to testimony based on memory: ‘An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and

(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. […] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. […]

[14]With that reminder of the need to approach to oral evidence with a degree of caution, we went on to make the following findings.

[15]The Respondent in material time, owned and operated a number of residential care settings, providing specialist accommodation for young people with complex specialist needs. The care home that we were concerned with was referred to as Massimo. That facility principally accommodated young men.

[16]Service users were placed in the care home by local authorities. In respect to each service user, a care plan was drawn up which set out in considerable detail how the service user’s needs could best be met. The plan included details, such as the activities to which the service user would be encouraged to undertake. In respect of numerous aspects of the service user’s life, the care plan included details of the staffing ratio that was required to meet the service user’s needs. The cost of providing these services was generally borne by the local authorities who placed the service user in the care home. For each service user, a budget was set. The budget would reflect the staffing ratio agreed in the care plan. Each care plan also set out detail of how the staff members would need to interact with the service user in order to best meet their needs. The care plans were subject to regular review.

[17]The Claimant was recruited by the Respondent to work as a support worker from 20 April 2020. She was given a job description which gives details of the role she was expected to perform. She signed a copy of that job description on 7 April 2020. The job description makes it clear that the Claimant is expected to follow the care plans for each service user. It was also clear that the Claimant was expected to assist in the maintaining a clean environment within the residential setting.

[18]We find that a support worker working for the Respondent was expected to prioritise the care of the service users. In order to do this, the employees shared between them the responsibility of cooking, cleaning, and tidying up the residential setting as well as assisting the service users throughout the day and night. We find that the special needs of the service users meant that their caring needs could be exceedingly challenging.

[19]Amid the evidence that we have considered, there are instances of the service users requiring assistance with epileptic fits. We heard about service users who are nonverbal. Some service users had autism. Some had difficulties respecting physical boundaries and could display a level of violence. Working within the care home was particularly challenging during the covid pandemic which was at its height through much of the time that we are dealing with.

[20]Sasha Cambron told us, and we accept, that the Respondent places a heavy emphasis on the reliability of the support worker. Absences from work for whatever reason were exceedingly disruptive. Absences which were unexpected or where the employee failed to notify the Respondent promptly that they were not coming to work, were particularly difficult.

[21]The evidence before us was that the Respondent found it difficult to recruit and retain a surplus of staff. When there was a shortage of staff through absence, unavailability, or for other reasons, it had a significant impact on the ability of the Respondent to properly provide for the service users. Sasha Cambron told us that if there were staff shortages, then it was likely that any pre-planned activities that required a full ratio of staff might be cancelled. We were particularly struck by her language when she said that an absence of a member of staff could make a difference, for a service user, between a good day or a bad day.

[22]The Claimant signed a contract of employment on 24 May 2020. Clause 5 of that contract states that the first 26 weeks of employment would be subject to a probationary period and that confirmation of appointment required the employee to establish that they were suitable for the role.

[23]The Respondent reserved the right to extend the probation period by as much as 26 weeks. During the probation period the contract of employment could be terminated upon one weeks’ notice. It is stated in terms that the ordinary disciplinary policy would not apply during the probation period and that any disciplinary or performance matter would be dealt with by a line manager.

[24]The provisions in the contract in relation to the probation period are supplemented by the staff probation policy. That policy provides three stages in the decision making process considering whether an employee has passed their probation period. An initial review meeting should take place at 13 weeks, or sooner if deemed necessary. At the end of that review meeting the employee should be given a copy of the notes taken, which should set out any objectives which are necessary for the successful completion of the probation. A further meeting would take place at 23 weeks but only if thought necessary by the line manager. For an employee working below the standards expected, in order to clarify the areas in which the employee is falling short of the expected standards, a final meeting would take place at 26 weeks. At this point a decision would be communicated about whether the employment would be continued or whether there should be an extension of the probation period.

[25]We were provided with a transcript of messages between all of the support staff who participated in a WhatsApp group, which is set up principally to notify employees of staffing matters and in particular when an emergency arose or emergency cover was required. We refer to this document on a number of occasions. A matter that struck us as important is the tone of the messages between the managers and support workers. There were numerous occasions when the managers and in particular Reese Cashman and Lyndsey Langham asked staff to work additional shifts. It is clear that a common reason for requiring people to come in and assist was due to ill health among staff members. Requests were always made politely, and gratitude is evident when staff volunteered. The general tone of the messages suggests that the working relationships between managers and staff was positive.

[26]The Claimant participated in these conversations and appears to be on good terms with the managers. One example was that in June 2020 a social event was organised with a French theme, where the Claimant quipped that she may be able to bring in frogs’ legs and a rabbit. She was then encouraged by Charlotte Cashman to participate, and it seemed to us to be remarkably friendly.

[27]Before dealing with some more contentious matters, we will deal with a submission made by Miss Brown on behalf of the Respondent in relation to the credibility of the Claimant. We would emphasise that we don’t consider credibility requires an all or nothing approach. Creditability affects the weight we can place on the witness’s evidence. A witness can be credible in respect of some part of the evidence but less credible in respect of others. Credibility is not to be equated with honesty. Having said that, where we are satisfied of an account given by a witness about a particular event which is particularly inaccurate we are entitled to take that into account in assessing other aspects of their recollection.

[28]We are able to reach some broad reach in conclusions about the Claimant’s recollection of events. We find that she worked hard and long hours, doing an extremely difficult job for the Respondent. Ultimately, she was dismissed when she was deemed to fail her probation period. We find that the Claimant is significantly hurt and insulted by the suggestion that she did not work to a sufficient standard. This hurt, or insult, was exacerbated by the Claimant’s knowledge that the behaviour of Cameron, a colleague who she regarded as being less capable than herself, had his probation period extended. She did not regard the reasons of which she was given for failing her probation period to be of any real merit.

[29]We find that the Claimant views events which took place during her employment through the lens of her feelings about her dismissal. Below we find that in relation to a number of events the Claimant has given an account which was inaccurate. Where we had no assistance from any contemporaneous document and were left with a conflict of oral evidence we have taken into account some instances where we find the Claimant has given an account which either misstates or exaggerates what actually happened.

[30]We have attempted to set out our findings of fact in respect that the allegations in some form of chronological order, which means that we are not necessarily following the order of the allegations in the list of issues. Charlotte Cashman spoke to the Claimant as though she did not understand English.

[31]We make the following findings of fact relevant to this allegation. The Claimant speaks and writes excellently in English and by our own observations is usually able to understand what is being said to her without difficulty. However, despite her proficiency, we observed on occasions that the Claimant would struggle to identify some words in English.

[32]The Claimant speaks English but with a French accent and occasionally pronounces English words in a way that makes them difficult to understand. An example, during the hearing before us was the pronunciation of the word ‘support’ in the job title ‘support worker’. She would pronounce the word as super, and it took the tribunal a short time to attune itself to the Claimant’s accent.

[33]The Claimant gave no clear example of words spoken by Charlotte Cashman to which she had taken exception. In a cross examination of Charlotte Cashman, that we think relates to these allegations, in which she referred to an event which occurred at the care home where the Claimant appeared to be making hotdogs. The Claimant states that Charlotte Cashman tried to tell her what to do. Charlotte Cashman flatly denied that she issued any instructions and, in her words, “how to put a sausage in a bun”. We accept her evidence.

[34]We accept that given our own observations of the Claimants language skills and accent, there is at least a possibility that Charlotte Cashman, consciously or unconsciously simplified her use of language when communicating with the Claimant.

[35]The Claimant suggests that she raised this issue with Sasha Cambron on the first night that she slept at the care home. Sasha Cambron had no recollection of it. We are not satisfied that the Claimant has established on the balance of probability that she raised a specific complaint about the way that she was spoken to, in relation to her language skills.

[36]We find that the Claimant did resent being given some instructions by Charlotte Cashman and indeed others. One clear example is when Charlotte Cashman asked the Claimant to clean up some spilled rice. The Claimant has, entirely incorrectly on our findings, suggested that there is a connection between Charlotte Cashman’s instructions on that occasion and the Claimant’s race.

[37]The Claimant does not suggest that Charlotte Cashman raised her voice, spoke particularly slowly or used any other hallmarks of a person applying a stereotype to a person who speaks English as a second language. The Claimant did not provide any sufficient examples of behaviour that would allow us to make any such finding.

[38]We must make findings on the balance of probability. In regard to all the evidence, we do not find that the Claimant has discharged the burden upon her that Charlotte Cashman spoke to her as if she didn’t understand the English language. Allegation 9 - Taking breaks.

[39]The nature of the work undertaken by the support workers may be impossible or extremely difficult to have fixed times for taking breaks. The Respondent’s witnesses told us, and we accept, that this was well understood and was a matter explained during the induction process.

[40]We do not understand that the Claimant to be disputing that. The support workers are expected to request breaks at convenient times to the shift leader. Again, we did not understand that to be controversial.

[41]The Claimant has only given evidence about a single incident which she says amounted to an express refusal of allowing her to take a break. It was agreed that on one occasion the Claimant had asked for, and was permitted to take a break. She had been in the garden of the care home and had been using her telephone. We know that this incident took place before the 17 June 2020 because it was referred to in a supervision record, completed by Sasha Cambron.

[42]The relevant notes says as follows, ‘Zoe is often on her phone at work. Recently we have had a loud phone call outside, but I have asked her to leave her phone in the cupboard’.

[43]Whilst there is little dispute between the Claimant and Sasha Cambron about what happened, we find that Sasha Cambron has given an accurate account of events. She says that the Claimant was outside in the garden, speaking loudly on her telephone. She says that she was concerned that the Claimant’s loud voice was disturbing the service users. We accept that efforts were made at all times to keep a calm demeanour around the service users who could easily become upset from loud noises or the perception that someone was shouting even if they were not. Sasha Cambron says that she went from her office to the garden to ask the Claimant to stop using her telephone.

[44]The Claimant equates being told that she should not be using her telephone as being denied the right to have a break. The Claimant also complains that referring to a private telephone call in a supervision note is a breach of her privacy.

[45]We find that the Claimant’s perspective of these events is distorted by a disappointment of how her employment ended. The reasons given by Sasha Cambron for asking the Claimant to stop using her phone around the service users, seems to us entirely sensible.

[46]Being told to not speak in a loud voice on the telephone is not the same as being told that you cannot have a break from work. The Claimant has not given any other specific example of when she asked for a break, and it was refused. What the Claimant does say, and we accept, and was also accepted by many witnesses, is that smokers would take more time for breaks compared to non-smokers. This is not the same thing as the Claimant being denied a break. It may be unfair, and many people would think that it is, but it does not provide any connection with a protected characteristic of race or sex.

[47]On the balance on probabilities the Claimant has not established that she was actually denied the right to take any breaks.

[48]As we have indicated above, the Claimant had a supervision meeting with Sasha Cambron on 17 June 2020. We find that this was intended to be a meeting in which the Claimant was to be informed about whether she was meeting the standards required to pass her probation period. The Claimants use of the telephone was one matter discussed during the meeting and was specifically included in the meeting notes. Additional matters included Sasha Cambron’s view that the Claimant had not come to a full understanding of what the service users could or couldn’t do.

[49]An objective was set that the Claimant should acquaint herself with the care plans for 3 service users. Sasha Cambron recorded that she considered that the Claimant did not have a positive attitude and suggested that the Claimant should look at the positives at the end of every shift and report them to the shift supervisor or as they are called in this organisation, the ‘Designated Responsible Person’ (‘DRP’). Notes from the meeting are signed by the Claimant and indictate that at that stage the Claimant was enjoying her job. This is consistent with the text messages which were referred to earlier. Allegations 5 & 6 Both relate to the suggestion, that the Claimant was made to stand outside in the sunshine.

[50]In her grievance, and in her ET1, the Claimant has made an allegation that at some point in August she had been allocated the task of looking after a service user M. She says, and it is not a matter that is in dispute, that M would habitually indicate by making a high pitch noise and physically elbowing his carers that he wanted them to leave his accommodation. M lived in a purpose-built annex to the main house with 3 rooms and its own private garden. His needs are such that he needs 24-hour care on a one-to-one basis within his home. His key worker for most of the time that we are concerned with was Angela Costin.

[51]M’s care plan sets out in detail how a carer would be expected to deal with M excluding them from the home. It is suggested that initially attempts should be made to calm M but if those proved ineffective the carer should leave the home. If M persisted in requiring them to leave the garden then they should do so. The care plan makes it plain that they should remain in the vicinity and wait for M to calm himself. Remaining in the vicinity was important because M is epileptic and the was a risk of seizures. The care plan suggests that M should be told that the carer would return within 10 minutes. The suggestion is made that it is a matter for the carer to judge whether they position themselves nearby or use monitors which are found within the main building.

[52]The Claimant had said in her grievance and ET1 that on a date unspecified she had been asked to work with M by Charlotte Cashman. In her grievance she suggests that that was inappropriate because snd M had not built up a relationship. She said that early in her shift M had pushed her out of the house and into the garden. She says that it was a hot summers day at around 35°C. She says that she tried to go back into the care home building to protect herself from the sun but Reece Cashman had told her to go back outside. She said that she had spent nearly 7 ½ hours outside in the sun. She said that she eventually went back into the house to get some water and get her mobile phone. Whilst there she says that she overheard a conversation between Charlotte and Rees Cashman saying that if M had pushed her outside it was because she smelt. She says that she said nothing at the time that just went back outside.

[53]When dealing with this incident struck the tribunal that is surprising that we had not been provided with daily records referred to as ‘progress evaluation notes’ within which a half hourly record of daytime activities and a 1 hourly record of night time activities was generally recorded. We asked the Respondent to produce all the progress evaluation notes around the weeks in August that the Claimant had identified this incident as having taken place.

[54]There was only one possible date for the incident and that turned out to be 15 August 2020. On that date the Claimant had been assigned to look after M and her earliest note at 8 AM records that M had refused to let her in. There are later notes that show that the Claimant was observing M between 8:30 and 9:30. The records then have no entries until 1 PM where they record that Angela Costin took over supervision of M for the rest of the day. It is clear from those notes that there were some difficulties with M’s behaviour during the day.

[55]The first point that we would note is that the Claimants account of being made to stand in 35°C for 7½ hours is plainly incorrect. She was only supervising M for 5 hours in total and not during the hottest hours of the day. This is a significant inaccuracy. We would not go as far as suggest that the Claimant has set out to mislead us. We find it more likely that her hurt and anger at her dismissal has significantly skewed her perspective of what occurred on that occasion.

[56]When Reece Cashman gave evidence it was put to him that he had refused to allow the Claimant into the main building and made her stand in the sunshine. The Claimant’s position was that he had done so applying a stereotypical assumption that she could not get sun burnt. Rees Cashman described the suggestion is just being ‘plainly cruel’ and not something he would contemplate.

[57]When the Claimant gave evidence she suggested that whilst she was in the garden observing M, Angela Costin went into M’s house. She says that she was able to slip in when M was in a different room.

[58]We find it more probable than not that the Claimant did at some point go into the main house and speak to Reece Cashman about M pushing her out of his house and garden. We find it probable that Reece did suggest that she observed M from the garden. That was exactly what was suggested by the care plan and was an entirely sensible response. The Claimant does not say that, when matters did not change, she went back and explained what was happening. In the absence of that Reese Cashman would have had no idea that the ordinary system of following the care plan had not resulted in the Claimant being allowed back into M’s house.

[59]We find that the Claimant has, consciously or otherwise, substantially exaggerated what happened on this occasion. Whilst dealing with M might have been difficult she was expected to be familiar with the care plan and his needs. We find that Reece Cashman did no more or less than advise her to follow that care plan. The Claimant did not them inform him, or anybody else, that the plan had not resolved the situation.

[60]We turn to the question of whether the Claimant did, as she claims, overhear Reese and Charlotte Cashman suggesting that she had been pushed out because she smelt. We take into account our findings about exaggeration, about this incident and elsewhere. We also take account of the fact that M pushed many of his carers out of his home. That would make the Claimant’s account of what was said far less likely.

[61]The Claimant is not a person unable to speak up for herself. In reaching this conclusion we rely upon the incident below where the Claimant bluntly refused a reasonable management instruction. Had the incident occurred as reported and included the Claimant being described as smelling we find the Claimant would have reported it despite the close relationship between Reece, Charlotte and the owners of the Respondent.

[62]The Claimant’s account of events is also inconsistent with a supervision meeting that took place in September 2020 where she signed the notes indicating that she would consider being a key worker for M.

[63]The conclusion that we have reached is that the Claimant has not established on the balance of probabilities that she was given any instruction to remain outside in the hot sum for any particular period of time and that she was not denied entry into the main house. We find that she was instructed to remain outside by Reece Cadman in circumstances where he believed that the Claimant would reasonably quickly be able to regain entry to M’s accommodation. The Claimant has not established that there was any reference to her smelling. Allegations 3 & 7 Cleaning duties

[64]Within the Claimant’s job description there was a requirement to assist with keeping the premises clean and tidy. We find that cleaning away food had a particular importance because of the special needs of at least one service user, who would tend to eat food left lying around or even on the floor. We find that by August 2020, the Claimant was under the impression that other people were not clearing up after themselves. We reach this conclusion because the Claimant produced photographs taken on 18 August 2020 and 28 August 2020 of the kitchen at the point in time that the night shift which commenced at 8pm was taking over from the day shift or the late shift. The very fact that the photographs were taken in the first place would suggest that this was a matter which troubled the Claimant.

[65]In our view the photographs do not support the suggestion that the day shift had simply left everything over for the night shift. In each of the photographs it appears that the washing up in the kitchen had commenced but perhaps not completed. There are instances where dishes are left to soak, and some items are unwashed, but we do not take the view that the kitchen was particularly messy.

[66]The Respondent does not dispute that the Claimant would on some occasions arrived at work to do a night shift and found that not all the washing up had been done. What is said is that the day shift would have been expected to do as much clearing up as they could have done in light of the other duties in which they have to perform. Each of the Respondent’s witnesses who commented upon this issue said that because the service users are active during the day it is not always possible to complete all of the work before the night shift arrives. It is a general expectation that the nights would be quieter and that it would be possible to catch up on the cleaning.

[67]In dealing with this issue, the tribunal was particularly assisted by the evidence provided by Angela Costin. She was able to tell us that the ability of the day shift to complete all of the cleaning before the night shift took over, was impacted by the staff members available and the number of incidents that had happened during the day. She pointed to the handover sheets which indicted that on at least one occasion when the washing up had been left for the Claimant, the day shift had had an exceptionally busy day and was somewhat understaffed.

[68]We had records of the activities which included the records of the night shift. While the night shifts were by no means without any incidents, and even taken into account that there are lower staff members during the night than the day, we find that the Respondent is right to suggest that those working at night would be more likely to have time to clear up than those working on the day shift.

[69]It was suggested by the Claimant that Charlotte Cashman had manipulated the rota to ensure that she would be clearing up after Reese Cashman had left. We are not satisfied that there was any such manipulation which was a suggestion unsupported by any evidence other than the fact that the Claimant occasionally worked the night shift after Reece Cadman worked during the day.

[70]We turn to a specific incident where the Claimant was requested to clean up some rice which had been spilled. There is no dispute that the Claimant and Katrina Bassick had worked the night shift on 18 August 2020. The night shift and day shift overlapped by half an hour between 8am and 8:30am. The shift leader on that day was Lyndsey Langham. Lyndsey Langham approached both the Claimant and Katrina Bassick and asked them both to clean up some rice which she had noticed in the living room. There was no dispute before us that there was indeed some rice that had been spilt.

[71]The Claimant immediately refused to do so. It is not essential to a finding in why she did that, but we would accept that the Claimant had worked a long night shift and that she was tired. However, in addition we find that her refusal was in part motivated by her opinion that it is not in the role of the night shift to clean up after the day shift. It is of course around this time that the Claimant’s took photographs of any washing up left in the kitchen by the day shift.

[72]We find that the Claimant had not bought in to the generally widely accepted view that it is was acceptable that some cleaning up be left over at the end of a shift. That was evident to us when she crossed examined witnesses on the basis that the handover sheets had indications that all cleaning had been done.

[73]We find that when the Claimant bluntly refused to clear up, having being asked to do so by Lyndsey Langham, Lyndsey Langham ask her for a second time. The Claimant suggests that that is unreasonable. We disagree. A manager is entitled to give instructions to which an employee is reasonably expected to follow, provided that the instructions fell within their job description which as it did here. Questioning the manager’s discretion in the way that the Claimant did was in our view improper, unusual, and created an awkward moment. We accept Lindsay Langham’s account that Katrina Bassick appeared embarrassed.

[74]Lindsay Langham then went to speak to Charlotte Cashman. She reported what had happened the two of them then returned to the table at which the Claimant and Katrina Bassett were sitting. We find that Charlotte Cashman knew or at least understood that Katrina Bassett had cleaned upstairs whereas the Claimant had cleaned the downstairs of the premises where the rice was to be found. We accept her account that she took the view that clearing up the rice was therefore the Claimant’s responsibility. We find that this together with the fact that she be brought in to deal with a refusal was why she only addressed the Claimant when asking her to clean up rice. The Claimant once again refused to do so. Charlotte Cashman asked whether she was sure about that. At that stage Katrina Bassett said that she would do the cleaning.

[75]We find the fact that the matter was left without any form of further action by the managers indicative of a somewhat lenient approach to discipline. The Claimant had on a number of occasions robustly refused to do her job. She may well have been tired, and that is understandable, but her resentment at being asked do a fairly straightforward task was disproportionate. She was probably fortunate that this was not a matter take into account in deciding whether to extend her probation period. We find that it was not.

[76]When the Claimant later raises incident and its investigated by Gemma Cooper as part of the claimants grievance Katrina Bassett gave an account consistent with our findings above and said that the Claimant had later apologised to her while driving home. We find it more likely than not that she did. We find that the apology was an acknowledgement of the fact that she put Katrina Bassett an awkward situation.

[77]The Claimant suggested that the conduct of Lindsay Langham and Charlotte Cashman was intimidating. She relied in particular the fact that they were both standing up where she was sitting down. We are not satisfied that there was anything intimidating about the conduct of either manager. On the contrary they appear to have meekly accepted the claimants blunt refusal to do what she had been asked. Allegations 10 & 11 Driving.

[78]There is no dispute that the Claimant was asked whether she is willing to drive service users using the Respondent’s vehicles. She had a driving licence and agreed to do so. In general, we struggle to understand why the Claimant thought that this was to her disadvantage, and we will return to that below.

[79]We find that the request to drive was entirely voluntary and the Claimant raised no objections at the time. The Respondent in response to these allegations have collated a spreadsheet, showing how often the driving activities were shared. The table is not entirely accurate. The Claimant suggests that this was an attempt to conceal the amount of driving that she did. We do not accept that. We find that there were errors in collating a large amount of reports into a single document. It is clear from the report that the Claimant did do a lot of driving, but it is also clear that Angela Costin, M’s key worker did significantly more. Some of the driving duties included sensory drives which involved driving the service user around or to a quiet place, such as a beach or a place for a walk. Other driving duties were to undertake activities or to visit the service users’ parents. With some service users, precautions had to be taken to ensure that they remained strapped in. M for example, had a cummerbund and other service users were simply secured by a seatbelt. One of those was service user G.

[80]When the Claimant was driving service user G, in August 2020 G removed his seatbelt and moved around the vehicle. The Claimant reported this using a standard ‘functional analysis’ incident report form. No immediate action was taken, and the Claimant was asked to drive G again the following day.

[81]We accept that the Claimant was scared by this incident and her report suggests that she scored it a 3 out of 5 for seriousness. We have reviewed the spreadsheet and cross-referred that spreadsheet to some of the daily notes. We find that G was taken on drives that were at least once a day. The Claimant was asked to drive G after the first incident and so were others. In particular, Angela Costin drove G around following that incident on numerous occasions.

[82]The Claimant had a further incident as much as the same as her incident in August, in October 2020. G’s care plan provides for one-to-one care generally but two to one care whilst being in the community. We accept the Respondent’s case that what is meant by ‘ in the community’ is activities that would bring G into contact with others; an example would be a shopping trip. The fact that the Claimant drove G by herself was consistent with his care plan and we note, as we have noted above that the care plan was the basis for the budget provided by the local authority. A departure from that care plan would mean exceeding the budget for the service user if they were to provide two carers.

[83]After the Claimant’s dismissal, a review was undertaken of G’s care plan. The notes record that G removed his seatbelt on several occasions prior to that date. It is clear from those notes that those responsible weighed up the pros and cons of using additional restraints, given the incidents were thought to be rare. A decision was taken to do nothing on the assumption of placing him on a strict regime would likely result in doing more harm than good. Whether that is right or wrong, that was the regime that would be applied in the future for those that would drive G after that date. 5 July 2020

[84]Whilst it does not form the subject matter of any complaint the Claimant says that on 5 July 2020 Reece Cashman questioned her competence. She referred to text exchanges in the Group WhatsApp account. Reece Cashman sent a message to the group asking if anybody could assist with a night shift. He had explained A had had CB (which we understand was challenging behaviour) and that due to sickness the Claimant had been working alone save for another carer Katie who was meant to be on the sleep shift. On that shift she would only have been expected to work in an emergency. Reece said that, in those circumstances, the Claimant can’t deal with any behaviour. The Claimant responded to that text by saying ‘Thank you for the confidence lol’. Katie joined the thread saying that somebody needed to come and help ‘or everyone will be dead come 6am’.

[85]The Claimant has sought to elevate Reece Cashman’s text into an implied criticism of her abilities. The text exchanges do not support the Claimant’s position which we regard as distorted. Reece Cashman is acknowledging the difficulties caused by short staffing. He is asking for help. There is no suggestion whatsoever that he is questioning the Claimant’s abilities other than the fact that she was expected to do too much. This is consistent with Katies remark which we find was light hearted. We find that the Claimant recognised that she was not being criticised at the time. That explains the ‘lol’ at the end of her text message Concerns the suggestion that the Claimant having volunteered to attend a shift was sent home.

[86]It is suggested that the Claimant volunteered to work an additional shift but was then sent home when she arrived. We have the WhatsApp group chat which did show occasions when the Claimant would volunteer an additional shift. In particular on the 14th of July 2020, she volunteered to do a late shift. The meaning of late shift is a shift that lasts from 2pm in the afternoon until 8pm at night and having seen the Respondents records it is clear that the Claimant worked that shift.

[87]We are therefore unsure as to how that supports the Claimant’s case; that she volunteered to work that shift but was sent home. It is possible that the Claimant expected to work through to the following morning. If she did so, then we find it as a misunderstanding on her part. The text message requesting help is in fact quite clear.

[88]The Claimant suggests that Sasha Cambron and Charlotte Cashman laughed at her inconvenience. If the relevant date is the one that is identified above, then we are satisfied that Sasha Cambron could not have been present. The Claimant worked on that day until 8pm, long after Sasha Cambron who worked office hours, had gone home.

[89]The Claimant has had all of the text messages and most of the records shows who worked what shifts and at what time. She has been unable to identify any occasion of when she came to work only to be sent away again and none of the Respondent’s witnesses had any recollection of it.

[90]Having regarded all of the evidence we find that the Claimant has failed to discharge the burden of proof on her to prove that this happened at all. The evidence was simply too vague to allow us to make the findings sought by the Claimant. Comments about service users that the Claimant says she overheard.

[91]The first of these set out in the list of issues is a suggestion that someone, not identified by name, said that they ‘would not fuck a service user even after four bottles of wine’. A second comment was said to relate to the size of G’s penis.

[92]During the grievance procedure, the identity of the people who were said to have made these comments was unidentified. The investigation which was taking place by Gemma Cooper did not reveal any information that would tend to suggest that this took place.

[93]The Claimant did not elaborate on the allegations in her ET1 and made the same bare allegations she did not elaborate in her short witness statement. We note that the allegation was not reported at the time, and we note the sparsity of the detail.

[94]Only in her cross examination did the Claimant say who had made the comments she has referred to. She initially said that the first comment had been made in the presence of Reece and Charlotte Cashman. She then went on to say that it was Reece Cashman that had made the actual comment. Reece Cadman did not accept that he had made the comment. The Claimant then attributed the second comment to Cameron and Joanal. We did not hear from either of those two individuals and the Respondent could not have anticipated the attribution by the Claimant during the hearing. Each of the witnesses called upon by the Respondent commented upon the suggestion that such comments were made within the workplace and some of them were shocked at the suggestion that such language would be used. We accept their evidence that such unprofessional comments would have been highly unusual.

[95]The Claimant was under an obligation to report any safeguarding issue within the workplace. She did not report these allegations at the time. Having regarded all of those matters, we are not satisfied that it is more than likely than not that those comments were made within the workplace. It is a possibility that the Claimant has remembered something of this nature being said but we cannot make a finding bases on a mere possibility. We consider it significant that it was only in cross examination, when she had no other choice but to do so, that the Claimant was prepared to attribute these remarks to individuals. The suggestion that the Claimant was required to meet the service user’s parents without a key worker present.

[96]This is a matter where we struggle to see what the Claimant is actually complaining about. We find that the position of ‘key worker’ is simply a title within the Respondent’s organisation. That person or that person jointly with another person will be the worker most involved with a particular service user. It carries with it no particular status and no additional remuneration.

[97]It is clear from the supervision notes in September that the Claimant was at least contemplating becoming M’s key worker and from the evidence that we have heard, many people assumed, incorrectly perhaps, that she was.

[98]We will accept that it is likely that the Claimant did meet the parents of service users two or three times. In our view there is nothing that we can see which would suggest that that amounted to any form of disadvantage.

[99]It follows that we accept the Claimant’s account of the treatment she complains of. We return to whether that amounted to a detriment and the reasons for that treatment below. The supervision meeting between the Claimant and Charlotte Cashman

[100]A supervision meeting took place between Charlotte Cashman and the Claimant on 21 September 2020. Charlotte Cashman took notes of what was discussed during the meeting. The notes are brief but we accept that they captured the gist of what was said. Two issues are identified as being raised. The first is the level of sickness absence by the Claimant. Charlotte Cashman noted that the Claimant had an increase in sickness in September and the notes say that she wanted to check that everything was okay. The Claimant is then recorded saying that she felt dizzy and that she was throwing up. The notes record that Charlotte Cashman asked the Claimant if she was pregnant. The symptoms described by the Claimant are consistent with the experience of some women early in pregnancy. The Claimant is recoded as saying that she was not pregnant. What is clearly recorded however is that Charlotte Cashman put the Claimant on notice that she was still on her probation period and suggested that she have no more sickness absences during her probation or that the outcome maybe a probationary meeting. The Claimant was therefore on notice that we find that her employment might be terminated if her absence record did not improve.

[101]The other note of significance we have already mentioned is that the Claimant wanted to try and become M’s key worker. Finally the Claimant was reminded that she needed to complete an on-line course conducted by Boots the Chemist. The manner in which the Claimant has put the allegation is that she was subjected to comments within the workplace about her physical appearance.

[102]Whilst we deal with this matter in the composite form in which it has been presented to us the reality is that the allegations relate to different occasions. Some comments are said to have been made in the workplace whilst others are quotations from text messages. We were not assisted by the elasticity of the allegations. The Claimant has identified three individuals as being responsible for remarks about her appearance. These are Cameron, a female employee Shiela and Bethany Drudge .

[103]When the Claimant brought her grievance she did raise the same remarks as she has included in her ET1 but she had not attributed those remarks to any particular person. When interviewed as a part of the grievance the Claimant told Gemma Cooper that Cameron had made all of the remarks that she complained of. Gemma Cooper interviewed Cameron who admitted that he had made the remarks aledged and said that they were ‘a joke’. The Claimant made no mention of Shiela or of Bethany Drudge at the time.

[104]In cross examination the Claimant accepted that Shiela was a person with whom she had a good relationship. She accepted that Shiela had made no objectionable remarks. Her evidence was essentially that whilst Shiela might make remarks about her appearance they were in the context of their good relationship and were not regarded by the Claimant as unwanted.

[105]The Claimant maintained that remarks made by Bethany Drudge were made in the presence of Charlotte Cashman. Bethany Drudge and Charlotte Cashman denied that that was the case. There was no documentary evidence that assisted us other than the Claimant’s description given during the grievance process.

[106]When Bethany Drudge made her witness statement she gave what we considered to be a balanced assessment of the Claimant as a care worker. She said that she had potential but could be uncooperative. We find that that was a fair assessment and in this and other aspects of her evidence we find that she was doing her best to assist the Tribunal. She flatly denied that she had made comments of the nature that the Claimant attributed to her. Charlotte Cashman flatly denied being present when any such comments were made.

[107]We had considered whether the fact that Cameron felt it appropriate to make inappropriate personal remarks about the Claimant’s appearance was something that we could weigh in the balance in deciding whether Bethany Drudge did the same thing. In other words whether this was a workplace where such comments were regarded as commonplace. We find below that there is some support from what Cameron said when interviewed in connection with the Claimant’s grievances that his comments made by text followed on from things said in the workplace. However we do know who he suggests that might have made remarks about the Claimant’s appearance. The Claimant accepts that Shiela made remarks that she found unobjectionable. We do not consider that Cameron’s conduct or what he said when interviewed provides any large measure of support for an allegation made against Bethany Drudge. The context was different. Cameron and the Claimant did exchange text messages. The context for Cameron’s behaviour was that he was drunk.

[108]We have expressed concerns elsewhere about the propensity of the Claimant to give an inaccurate account or events. That is something that we should weigh in the balance in deciding whether this aspect of the allegation is made out.

[109]We have decided that taking into account the oral accounts of all witnesses and weighing the fact that the Claimant did not mention Bethany Drudge during her grievance and having regard to the Claimants propensity to be unreliable against the evidence that Cameron accepted that he did make personal remarks (in what we find below was a working relationship) we conclude that the Claimant has failed to show that it is more likely than not that any remarks were made by Bethany Drudge and it follows that we find than none were witnessed by Charlotte Cashman.

[110]We then turn to the allegations concerning Cameron. The Respondent did not dispute that in the course of text exchanges Cameron did make remarks about the Claimant’s appearance. The Respondent’s position was that the context of those remarks was such that they were not unwanted conduct and were in any event not made by Cameron in the course of his employment. We need to set out what occurred and go on to make findings as to the nature of the relationship between the Claimant and Cameron to determine the context within which the remarks were made. We deal with the question of whether the remarks were made in the course of Cameron’s employment in our discussions and conclusions below.

[111]The text messages in question were sent just before midnight on 23 September 2020 we do not have a complete record of the conversation but there is sufficient that we can make findings about the context for the text exchange. The first text we have seen shows Cameron apologising for being drunk. He went on to discuss a plan to travel to Brazil. The Claimant responds bluntly by telling him that instead of talking about it he should do it but needed to stop drinking first. What we draw from that is that the Claimant thought that Cameron drank more than was healthy for him. There is reference to who the Claimant is with and Cameron speculates that she is with Ray, her partner,. The Claimant says that she is not and is with ‘Daisy’ who we understand was a colleague. Cameron does not know whether the Claimant is or is not at work. Cameron used phrases like “miss you” and “really”. The Claimant’s responses are pretty blunt and says, “your drunk man”. Cameron then goes on to say, “are we even friends anymore, I don’t remember what you look like”. Again, there is a blunt response, “Yes but now your drunk”. Cameron responded to that message by saying “remember you have a big bottom and nose. You need coke” . He then added “make your (some garbled text) Nose small”. The obvious meaning of that was that he was suggesting that taking cocaine might reduce the size of the Claimant’s nose. The implication being that she had a large nose.

[112]The Claimant complained about remarks about her appearance in her grievance. Cameron was asked for his account of events by Gemma Cooper. He was asked about whether he had made a comment about the Claimants bottom and to that he responded that they have that kind of relationship, ‘we are friends’. He may have believed that to be the case. When asked if he said that the Claimant’s bottom was big, he said ‘yes in a positive way, women would want her bottom’. When asked whether he said that whether her bottom was all hers, he said that ‘it came up in a conversation outside of work. I said I knew it was real, but others had said that it was fake’. When asked who the others were, he said ‘I do not remember who but other women at work. They made comments that women would pay a lot of money for that bottom and was doubting about whether it was real’. When asked about whether he made a comment about the Claimant’s nose, he acknowledged that he did. He said that she started the joke and had said that she should do coke to make her nose smaller. He then accepted that he had messaged her to that effect. He then records her reply which is a text message where he said the Claimant told him to ‘suck cock to make his double chin smaller’. Cameron then said he recognised that he had upset the Claimant and so apologised. He said that things had been fine ever since.

[113]What we do accept from that account of events is that Cameron was under the impression that his relationship with the Claimant was sufficiently close and that he could get away with making personal remarks about her appearance. What we also draw from that conversation is that he was building on conversations that he had heard in the workplace. We have rejected the suggestion that those workplace comments were made by Bethany Drudge but we conclude that there were at least some conversations in the workplace about the Claimant’s appearance. We do not know enough about them to conclude what was said or if they were unwanted.

[114]However, we do not find that the Claimant and Cameron’s relationship was such that the comments made by Cameron in the text exchange outlined above in relation to her appearance could be taken to be invited. A number of the Respondent’s witnesses had included in their statements reference to the relationship between the Claimant and Cameron. Bethany Drudge suggested that she knew that the Claimant and Cameron were friends and that she spent time at his house. However she says that because of that she would be surprised if Cameron behaved offensively. She did not give any great detail and we were left with the conclusion that her evidence about the extent of any friendship between the Claimant and Cameron was a matter of impression rather than based on particular events. Gemma Cooper said in her witness statement that ‘It appeared to me at the time, and still does now, that [Cameron] and Ms Fossard were friends outside of work and it was a matter of blurring the lines between work colleagues and friends’. Again it appears that the basis for Gemma Cooper’s conclusion was a matter of impression no doubt reinforced by what Cameron said when he was interviewed.

[115]The Claimant told us that she regarded Cameron as a workplace colleague and not a friend as such. She said that she did not socialise with Cameron outside work. The tribunal asked a number of witnesses about the extent that employees of the Respondent socialised outside work. Our conclusion was that there was little socialising. We remind ourselves that the period we were dealing with was right in the middle of the covid pandemic. We find that the totality of the evidence relied upon by the Respondent failed to demonstrate that there was any close relationship between the Claimant and Cameron that went beyond then being work colleagues who were friendly to one another. There was no suggestion by anybody that they were in a relationship. The highest that it was put is that they were friends. We are sure that the Claimant was friendly to most if not all of her colleagues. That is the tone struck in the group WhatsApp.

[116]The Claimant told us, and we accept, that Cameron learned of her telephone number in the context of their work. Their exchange of numbers was initially to facilitate them in fulfilling their duties. Only thereafter did they conduct social conversations by WhatsApp.

[117]We find that to an extent the Claimant did not mind discussions about her appearance. For example she did not consider remarks by Sheila to be unwanted. The remarks made by Cameron in the text exchange must be seen in their context. Cameron was drunk. He says that himself. He then makes the remarks we have recorded above. We accept the Claimant’s account that these remarks were unwanted. Cameron himself recognised that he had crossed the line and he apologised to the Claimant. The remarks are deeply personal. They refer to aspects of the Claimant’s appearance about which Cameron could not reasonably have thought she would be indifferent.

[118]We do not accept the position adopted by the Respondent that the friendly relations between the Claimant and Cameron meant that these remarks should be regarded as a part of the normal discourse and should not be taken as being unwanted. Cameron correctly records the Claimant’s reaction. She made no bones about the fact that she considered that he had crossed the line.

[119]It is of note that as a recommendation following the grievance procedure Gemma Cooper concluded that Cameron should do a refresher course on equality and diversity. It seems that in doing so she has acknowledged that Cameron’s behaviour was capable of causing offence. The training was not completed as Cameron left the employment of the Respondent.

[120]The allegation made by the Claimant is that she was made to care for a service user A by herself. She says that the care plan for that service user was that he was cared for at all times by two people. We had the care plan for A in the agreed bundle. The Claimant is wrong about what the care plan says. The care plan states that A is to be cared for by two carers in certain circumstances. These were where he was being driven (but there were exceptions) and where he was accessing the community. We find that what is meant by that is situations where he would encounter members of the public. We find that the Claimant is simply wrong to suggest that the standard staffing ratio set out in the care plan was two to one.

[121]The Claimant had compared her treatment to a colleague ‘JC’ who she correctly said would not be required to work with A unless she was accompanied. In cross examination the Claimant was taken to a health and safety risk assessment concerning that employee. What was recorded was that the employee had suffered an impact to her abdomen caused by A. She had had surgery in 2017 and the impact had caused some trauma. As a consequence of this an agreement was reached that she would not be a lone worker when caring for A.

[122]In cross examination the Claimant was taken through a selection of ‘Progress Evaluation Notes’ that recorded who was looking after A on various dates. Those did show that on at least one occasion the Claimant looked after A by herself but that on several other of occasions A was being cared for by just one other person.

[123]We find that it was the norm that A was cared for by just one member of staff. We accept that was not always the case. There were instances of two carers working with A. JC is one example for the reasons found above. Other examples are where there was a trainee or where a handover was taking place. Being required to drive a service user on the night of 28 September 2020

[124]On the night of 28 September 2020 service user had a seizure and at the suggestion of a paramedic was taken to hospital by ambulance. Later, another support worker Joan Norfolk used one of the Respondents’ vehicles to bring medication to the hospital. When she arrived at the hospital, she had discovered that she had an issue with the lights and reported that issue back to the shift leader. The shift leader called the RAC but, before they arrived, it was established that Joan Norfolk had simply not realised how to turn the lights on as they had some automatic function.

[125]The thrust of the Claimant’s case was that she was being asked to drive a car where the lights were not working properly. She says that this was direct discrimination because of sex or race. We did not understand the Claimant to be complaining about just having to drive. Had that been the complaint then we would have struggled to understand how that might reach the threshold of being a detriment.

[126]Bethany Dredge, had accompanied the service user to the hospital in the ambulance and, late at night, the Claimant was asked to go and collect her and the service user from the hospital. We find that the Claimant was asked to drive because she had previously volunteered to drive as part of her role and she was available to assist. The records of who was working on that night suggest that it was the Claimant, Donna Ball and Darlington Ojo. He is black and was on the sleeping shift which meant that he was not expected to work. Donna Ball did not drive. We find that these were the reasons why the Claimant was asked to drive.

[127]It is very clear to us from the text messages that were exchanged between them, that Bethany Drudge was waiting outside the hospital. She sent a text message at 22:25 telling the Claimant that she was waiting outside the emergency department. This is important as Bethany Dredge’s evidence was that when the Claimant arrived the car that she was driving had full working lights. The Claimant challenged that in cross examination and suggested that she wouldn’t have been outside and wouldn’t have been able to tell whether the light were working. That is plainly untenable in light of the text messages which were included in the bundle and the Claimants account is seriously undermined in that respect. It would have been startling if the Claimant had driven to a hospital at 10pm without any lights on. It would have been startling that if she had no lights she would not have said something to Bethany Drudge or that Bethany Drudge would have failed to notice on the drive home. Bethany Drudge told us that she recalled asking the Claimant to turn down the music in the car. That appeared to us to be a clear recollection and we accept it. We find it highly unlikely that the Claimant would have been listening to loud music whilst driving a car without lights.

[128]This is an occasion when we find that the Claimant has got matters out of all proportion and embellished undisputed facts to create a problem where none existed. We find that the Claimant was almost certainly told by the shift leader about the earlier issues with the lights. Bethany Drudge accepted in her evidence that this was mentioned to her. She has extrapolated that in her mind, possibly ex post facto after her dismissal to a suggestion that she was expected to drive the defective vehicle, she was not. She was asked to drive the vehicle only after the issue was resolved.

[129]We find that that the Claimant has either deliberately or subconsciously distorted this incident in her mind. What she told us happened simply did not happen. The highest that her case could have reasonably been put was that she had been asked to drive a car that somebody else had reported as faulty. Instead she has blown the incident up into something much more serious. Her account was simply not credible. This is a matter that we have weighed in the balance elsewhere. Being told that Reece Cashman and Cameron did not like black people and thought them lazy

[130]We have dealt with this allegation here but are not sure where the allegation fits within the chronology. It is not something mentioned by the Claimant in her chronology.

[131]When cross examined the Claimant accepted that she had not made this allegation in her grievance nor had she reported it at the time she says it occurred.

[132]The Respondent’s witnesses did not shy from a suggestion that the Claimant was generally perceived as not pulling her weight. From that we infer that there may have been reference to the Claimant being lazy.

[133]There is simply not enough evidence that would allow us to make a finding that at some point the Claimant was told that Reece Cashman and Cameron did not like black people and thought them lazy. A suggestion that Cameron did not like black people does not sit comfortably with the text messages we have seen in which he appears to be expressing affection for the Claimant. We accept that the two are not necessarily inconsistent.

[134]We have had regard to all the evidence. We are unable to conclude that it is probable that anybody told the Claimant that Reece and Cameron did not like black people and thought her lazy. There is a possibility that the Claimant would have got wind of the fact that some considered she was not pulling her weight but that is not the allegation she has made. We find it improbable that anybody would say to the Claimant that anybody else in the workforce had a dislike of black people without the matter being escalated and/or recorded. Dismissal of the Claimant

[135]As we indicated earlier, the Claimant had attended a further supervision meeting with Charlotte Cashman on 21 September 2020 at which she was warned in terms that she needed to improve her attendance before the end of her probation period. She was at risk of failing her probation if she did not improve. It was intended that the Claimant would attend a meeting on the 20th of October 2020 which was the sixth month anniversary of her probation period but in fact she was off work at the time.

[136]In early October 2020 there had been cases of Covid amongst the staff. The Claimant took exception to Reece Cadman circulating a picture of himself in a face mask holding lemsip. We do not se this as being anything beyond dark humour. On government advice, carers were not allowed back into the workplace unless they had a negative covid test. The text messages between the Claimant and the managers show a marked reluctance to comply. With the testing regime refusing to do so unless it was mandatory. This meant that the Claimant had more time off work than she should have needed. On 22 October 2020, she was expected to work. She neither attended nor did she follow the sickness management policy.

[137]On 23 October 2020, in the morning the Claimant met with Sasha Cambron, and we a conversation did take place about the failure to follow the sickness notification procedure. The Claimant briefly explained that her partner had been ill. Sasha Cambron told us and we accept that the conversation was truncated as there was another employee in the office. The Claimant returned a few minutes later. We find that the Claimant recognised that she may have been in some difficulty, and she was very angry about that. She asked at this stage ‘should she go now’. Sasha Cambron asked the Claimant to return later and and the Claimant was asked to undertake some other duties.

[138]Sasha Cambron told us, and we accept, that even before the Claimant had become angry she had decided that the Claimant’s employment should be terminated. The reason that she was stalling for time was in part that she had other duties but also that she needed to get authority from Gemma Cooper and Shani Howard to inform the Claimant of her decision. She obtained that approval before she met with the Claimant.

[139]Sasha Cambron met with the Claimant later in the day. Sasha Cambron took notes of that meeting on a pro-forma designed for the purpose. The notes disclose discussion about two concerns. The first was that the Claimant had not completed an online Boots course about medication. The second related to the Claimant’s absence record. There was no real dispute before us that these matters were discussed.

[140]The Claimant says that during this meeting Sacha Cambron used the phrase ‘you do not fit in here’ she relies upon that to support her case that the decision to dismiss her was tainted by racism. Sasha Cambron denies using that expression. The tribunal notes that the context was that the Claimant was being told that her she had ‘failed’ her probation period. She was being told that she was being dismissed. We consider that there is some scope for believing that she was being told that she did not fit in. When suggestions were made to Sasha Cambron that she had been motivated by race she denied them and appeared a little bemused. She is of mixed heritage being partially of Mauritian heritage. She thrust of her evidence was that she regarded her heritage, and the Claimant’s mixed heritage as being very similar.

[141]We need to make a finding as to whether the Claimant was told that ‘she did not fit in’ . We do not find that it is more probable than not that that phrase was used. The focus of the discussion surrounded objective reasons why the probation period was not extended – training and absence. Had the focus been on behaviours there would have been more support for the Claimant’s account. We have had regard to all the evidence, including the Claimant’s propensity to see matters differently in hindsight and conclude that this phrase was not used.

[142]Given that the Claimant was representing herself the Tribunal explored with Sacha Cambron in some depth her reasons for the decision to dismiss the Claimant. In her responses she placed foremost in the reasons that she presented to us, the fact that the Claimant was in the sense that we have identified above, an unreliable employee. One of the questions asked by the tribunal was the extent to which she had taken to account of the positives that the Claimant had achieved and balanced those against any other concerns. Her response was fairly forthright and fairly blunt. She said that she cannot assess how good an employee is if they are not there and not turn up. As we indicated earlier, we accept her evidence that she considered that absence management was an essential part of her duties given the impact it had on the service users. We find that Sacha Cambron prioritised regular and reliable attendance over almost anything else. That is consistent with the evidence we refer to above that having the proper complement of staff can make the difference between a good day and a bad day for service users.

[143]As an ancillary matter, we find that as a matter of fact, and whether her conclusions were right or wrong, that she came to the conclusion that the Claimant had not completed the boots online training, which was raised during the supervision meeting. There was sufficient objective evidence to support that belief.

[144]The Claimant was concerned about the manner in which the dismissal was communicated. We accept Sasha Cambron’s evidence which was essentially that she deferred to the Respondent’s HR department to complete the formalities. There was a delay of one week before sending out the letter confirming the dismissal. No allegation of discrimination turns on that and it is unnecessary to make any further findings.

[145]The Claimant seeks to compare her treatment with that of Cameron. Cameron was not dismissed but he did have his probation period extended. The Claimant says that Cameron was an alcoholic and used cannabis. She says that in those circumstances he, as a white male, is a proper comparator for her case. In the light of that suggestion we need to make the finding of fact about whether the Respondent, but in particular Sasha Cambron, was aware of either alcohol abuse or drug use by Cameron. The evidence relied upon by the Claimant is in the main fact that she was shown by Cameron a text message that questioned whether Charlotte Cashman had the right to ask him whether he had been drinking. It appears that Cameron had taken a day off. We find that Charlotte Cashman was somewhat suspicious that he may be taking a day off because he had been drinking and had a hangover. e find that is very far short from a suggestion that she knew he had any form of alcohol dependency let alone a form of alcohol dependency which would have an impact in the workplace. We find the knowledge of Cameron’s drinking went no further than the suspicion that he may have the odd day off sick when he had a hangover.

[146]We have seen a message from Cameron when he became aware that the Claimant was pursuing the present proceedings where he essentially begs the Claimant not to draw attention to the fact that he had an alcohol problem or a had abused drugs. In our view that is consistent with him believing that nobody knew that he had such a problem. It is inconsistent with the suggestion that it was widely known.

[147]There is no evidence before us that anybody or the Respondent had any knowledge whatsoever about drug use.

[148]In any event, the persons whose mind is particularly important in this case is that of Sasha Cambron. In order for the Claimant to rely upon Cameron as a comparator, she would have to show that Sasha Cambron was aware that he had an alcohol problem or had used drugs in the workplace. There is no evidence before us that she did, and we find that she did not. The grievance process

[149]There is no suggestion made by the Claimant that the grievance investigation or outcome conducted by Gemma Cooper was of itself an act of discrimination or harassment. In the circumstances we record only a brief summary of the process.

[150]On 27 October 2020 the Claimant presented a grievance. The grievance did include many of the allegations that have been brought before the Tribunal but there were some omissions and some omissions of detail that we have noted above. The grievance also coverer matters that are not before us including matters criticising how the Respondent treated service users and general matters of staffing. The grievance was investigated by Gemma Cooper who was at the time the Area Manager. She still works for the Respondent.

[151]Gemma Cooper met with the Claimant on 3 November 2020 and then conducted fairly brief interviews with ten members of staff. She says, and it is born out by the notes of the interview with the Claimant that there was an absence of detail in respect of some allegations made by the Claimant. The notes are effectively annotations to the Claimant’s grievance letter. A note attached sums up some parts of the discussion and includes a reference to Gemma Cooper asking for details. She records the Claimant as saying ‘it is your job to find out and not for me to tell you. We accept that words to that effect were said and such an approach would not have assisted the investigation were there any basis for the allegations.

[152]Gemma Cooper provided an outcome to the grievance on 18 December 2020. In the circumstances prevailing at that time that is a reasonably prompt response. She did not uphold any aspect of the Claimant’s grievance. She did comment that she regarded the exchanges between Cameron and the Claimant blurred the boundaries between friendship and work. We have gone somewhat beyond that in our decision. Overall we find that there appears to have been a proper investigation given the level of detail provided and the conclusions reached were unremarkable given the evidence thrown up by the investigation. The legal principles that we applied The burden and standard of proof under the Equality Act 201

[153]The standard of proof that we must apply in every case is the civil standard that is the balance of probabilities. In other words, we must decide whether it is more likely than not that any fact is established.

[154]The burden of proof in respect of all claims brought under the Equality Act 2010 is governed by section 136 of that act the material parts of which are: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(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.

[155]Accordingly, where a claimant establishes facts from which discrimination could be inferred (a prima facie case), then the burden of proving that the treatment was in no sense whatsoever unlawful passes to the respondent. The proper approach to the shifting burden of proof has been explained in Igen v Wong

[2005] ICR 9311

which approved, with some modification, the earlier decision of the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] IRLR 332

. Most recently in Base Childrenswear Limited v Otshudi

[2019] EWCA Civ 1648

Lord Justice Underhill reviewed the case law and said: 17. Section 136 implements EU Directives 2000/78 (article 10) and 2006/54 (article 19), which themselves derive from the so-called Burden of Proof Directive (1997/80). Its proper application, and that of the equivalent provisions in the pre-2010 discrimination legislation, has given rise to a great deal of difficulty and has generated considerable case-law. That is not perhaps surprising, given the problems of imposing a two-stage structure on what is naturally an undifferentiated process of fact-finding. The continuing problems, including in particular the application of the principles identified in Igen Ltd v Wong

[2005] EWCA Civ 142

[2005] ICR 93

, led to this Court in Madarassy v Nomura International plc

[2007] EWCA Civ 33

[2007] ICR 867

, attempting to authoritatively re-state the correct approach. The only substantial judgment is that of Mummery LJ: it was subsequently approved by the Supreme Court in Hewage v Grampian Health Board

[2012] UKSC 37

[2012] ICR 1054

. In Efobi v Royal Mail Group Ltd

[2017] UKEAT 0203/16

[2018] ICR 359

, the EAT held that differences in the language of section 136 as compared with its predecessors required a different approach from that set out in Madarassy; but that decision was overturned by this Court in Ayodele v Citylink Ltd

[2017] EWCA Civ 1913

[2018] ICR 748

, and Madarassy remains authoritative. 18. It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy. He explained the two stages of the process required by the statute as follows:(1) At the first stage the claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. ‘Could conclude’ in section 63A(2) [of the Sex Discrimination Act 1975] must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. …”

(2) If the claimant proves a prima facie case the burden shifts to the respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.

[156]Inferences can only be drawn from established facts and cannot be drawn speculatively or on the basis of a gut reaction or ‘mere intuitive hunch’ see Chapman v Simon

[1994] IRLR 124

see per Balcombe LJ at para. 33 or from ‘thin air’ see Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

[157]Discrimination cannot be inferred only from unfair or unreasonable conduct Glasgow City Council v Zafar

[1998] ICR 120

. That may not be the case if the conduct is unexplained Anya v University of Oxford

[2001] IRLR 377

, CA. Whilst inferences of discrimination cannot be drawn merely from the fact that the Claimant establishes a difference in status and a difference treatment see Madarassy v Nomura International plc

[2007] ICR 867

‘without more’, the something more “need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred” see Deman v Commission for Equality and Human Rights

[2010] EWCA Civ 1279

per Sedley LJ at para 19.

[158]Where there are a number of allegations each single allegation of discrimination should not be viewed in isolation, but the history of dealings between the parties should be taken into account in order to determine whether it is appropriate to draw an inference of racial motive in respect of each allegation Anya v University of Oxford and Qureshi v Victoria University of Manchester and Another

[2001] ICR 863

, EAT.

[159]The burden of proof provisions need not be applied in a mechanistic manner Khan and another v Home Office

[2008] EWCA Civ 578

. In Laing v Manchester City Council

2006 ICR 1519

Mr Justice Elias (as he then was) said “the focus of the Tribunal's analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, "there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the Employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race"”

[160]Such an approach must assume that the burden of proof falls squarely on the Respondent to prove the reason for any treatment. It is an approach that should be used with caution and is appropriate only where we are in a position to make clear positive findings of fact as to the reason for any treatment or any other element of the claim. We shall indicate below where we consider that it is open to us to follow this approach. Direct Discrimination

[161]Section 13 of the Equality Act 2010 contains the statutory definition of direct discrimination. The material part of that section read as follows: ‘(1) 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.’

[162]In order to establish less favourable treatment it is necessary to show that the claimant has been treated less favourably than a comparator not sharing her protected characteristic. Paragraphs 3.4 and 3.5 of the code say: 3.4 To decide whether an employer has treated a worker ‘less favourably’, a comparison must be made with how they have treated other workers or would have treated them in similar circumstances. If the employer’s treatment of the worker puts the worker at a clear disadvantage compared with other workers, then it is more likely that the treatment will be less favourable: for example, where a job applicant is refused a job. Less favourable treatment could also involve being deprived of a choice or excluded from an opportunity. 3.5 The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated – or would have treated – another person.

[163]Section 23 of the Equality Act 2010 provides that any comparator must be in the same, or not materially different, circumstances. What is meant by ‘circumstances’ for the purpose of identifying a comparator it is those matters, other than the protected characteristic of the claimant, which the employer took into account when deciding on the act or omission complained of see - MacDonald v Advocate- General for Scotland; Pearce v Governing Body of Mayfield Secondary School

[2003] IRLR 512

, HL. Where no actual comparator can be identified the tribunal must consider the treatment of a hypothetical comparator in the same circumstances. Paragraphs 3.22 – 3.27 say (with some parts omitted): 3.22 In most circumstances direct discrimination requires that the employer’s treatment of the worker is less favourable than the way the employer treats, has treated or would treat another worker to whom the protected characteristic does not apply. This other person is referred to as a ‘comparator’. Who will be an appropriate comparator? 3.23 The Act says that, in comparing people for the purpose of direct discrimination, there must be no material difference between the circumstances relating to each case. However, it is not necessary for the circumstances of the two people (that is, the worker and the comparator) to be identical in every way; what matters is that the circumstances which are relevant to the treatment of the worker are the same or nearly the same for the worker and the comparator. Hypothetical comparators 3.24 In practice it is not always possible to identify an actual person whose relevant circumstances are the same or not materially different, so the comparison will need to be made with a hypothetical comparator. 3.25 In some cases a person identified as an actual comparator turns out to have circumstances that are not materially the same. Nevertheless their treatment may help to construct a hypothetical comparator. 3.26 Constructing a hypothetical comparator may involve considering elements of the treatment of several people whose circumstances are similar to those of the claimant, but not the same. Looking at these elements together, an Employment Tribunal may conclude that the claimant was less favourably treated than a hypothetical comparator would have been treated. 3.27 Who could be a hypothetical comparator may also depend on the reason why the employer treated the claimant as they did. In many cases it may be more straightforward for the Employment Tribunal to establish the reason for the claimant’s treatment first. This could include considering the employer’s treatment of a person whose circumstances are not the same as the claimant’s to shed light on the reason why that person was treated in the way they were. If the reason for the treatment is found to be because of a protected characteristic, a comparison with the treatment of hypothetical comparator(s) can then be made.

[164]An explanation of the differing ways in which treatment might be because of a protected characteristic was given in Amnesty International v Ahmed

[2009] IRLR 884

by Underhill P (as he was). He said:'33. In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. If an owner of premises puts up a sign saying “no blacks admitted”, race is, necessarily, the ground on which (or the reason why) a black person is excluded. James v Eastleigh [Borough Council

[1990] IRLR 288

] is a case of this kind. There is a superficial complication, in that the rule which was claimed to be unlawful – namely that pensioners were entitled to free entry to the council's swimming-pools – was not explicitly discriminatory. But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as “free entry for women at 60 and men at 65”. The council was therefore applying a criterion which was of its nature discriminatory: it was, as Lord Goff put it (at p.294, paragraph 36), “gender based”. In cases of this kind what was going on inside the head of the putative discriminator – whether described as his intention, his motive, his reason or his purpose – will be irrelevant. The “ground” of his action being inherent in the act itself, no further inquiry is needed. It follows that, as the majority in James v Eastleigh decided, a respondent who has treated a claimant less favourably on the grounds of his or her sex or race cannot escape liability because he had a benign motive.

34. But that is not the only kind of case. In other cases – of which Nagarajan is an example – the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie by the “mental processes” (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions) …'

[165]The proper approach to deciding whether the treatment was afforded ‘because of’ the protected characteristic is to ask what the reason was for the treatment. If the protected characteristic had a significant influence on the outcome then discrimination will be made out see - Nagarajan v London Regional Transport

[1999] UKHL 36

;

[1999] IRLR 572

[166]The reason for the unlawful treatment need not be conscious but may be subconscious. In Nagarajan Lord Nicholls said: ‘I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did.’

[167]Section 39(2) of the Equality Act 2010 provides that: (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment.

[168]A ‘detriment’ is something that a reasonable employee might consider to be a disadvantage Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

an unjustified sense of grievance will not suffice.

[169]Section 212 of the Equality Act 2010 provides that ‘“detriment” does not, subject to subsection (5), include conduct which amounts to harassment’. The purpose of this definition is to prevent overlapping claims. Its effect is that where a tribunal find that an act or omission to amount to harassment for the purposes of Section 26 it cannot find that the same act or omission is unlawful contrary to sections 13 or 27 where the claim relies on establishing a that act or omission is a detriment contrary to Section 39(2)(d). Harassment – Section 26 of the Equality Act 2010

[170]A claim for harassment under the Equality Act 2010 is made under section 26 and 40. The material parts of Section 26 reads as follows: 26 Harassment(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.

(2) …

(3)

(4) In deciding whether conduct 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; (c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

[171]The Statutory Code of Practice at paragraph 7.18 says the following about when conduct should be taken as having the effect of creating the circumstances proscribed by Sub-section 26(1)(b): 7.18 In deciding whether conduct had that effect, each of the following must be taken into account: a) The perception of the worker; that is, did they regard it as violating their dignity or creating an intimidating (etc) environment for them. This part of the test is a subjective question and depends on how the worker regards the treatment. b) The other circumstances of the case; circumstances that may be relevant and therefore need to be taken into account can include the personal circumstances of the worker experiencing the conduct; for example, the worker’s health, including mental health; mental capacity; cultural norms; or previous experience of harassment; and also the environment in which the conduct takes place. c) Whether it is reasonable for the conduct to have that effect; this is an objective test. A tribunal is unlikely to find unwanted conduct has the effect, for example, of offending a worker if the tribunal considers the worker to be hypersensitive and that another person subjected to the same conduct would not have been offended.

[172]In Pemberton v Inwood

[2018] IRLR 542

Underhill LJ explained the effect of Subsection 26(4) as follows [para 88]: ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment4 created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’

[173]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, which dealt with the legislation in place prior to the Equality Act 2010 there is a reminder of the need to take a realistic view of conduct said to be harassment. At paragraph 22 Underhill P (as he was) said: ‘Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.

[174]The question of whether unwanted treatment ‘relates to’ a protected characteristic is to be tested applying the statutory language without any gloss Timothy James Consulting Ltd v Wilton

UKEAT/0082/14/DXA

. In Bakkali v Greater Manchester Buses (South) Ltd

[2018] IRLR 906

, EAT Slade J held that the revised definition of harassment in the Equality Act 2010 enlarged the definition. She said: ‘In my judgment the change in the wording of the statutory prohibition of harassment from 'unwanted conduct on grounds of race …' in the Race Relations Act 1976 s 3A to 'unwanted conduct related to a relevant protected characteristic' affects the test to be applied. Paragraph 7.9 of the Code of Practice on the Equality Act 2010 encapsulates the change. Conduct can be 'related to' a relevant characteristic even if it is not 'because of' that characteristic. It is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant. However, 'related to' such a characteristic includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader enquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour. As Mr Ciumei QC submitted 'the mental processes' of the alleged harasser will be relevant to the question of whether the conduct complained of was related to a protected characteristic of the Claimant.’

[175]The need for a tribunal to take a rigorous approach to the question of whether conduct related to a protected characteristic was recently emphasised in Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, EAT where the EAT said: ‘The broad nature of the 'related to' concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual's conduct was related to the characteristic in question. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the tribunal which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.’ Liability of an employer for the acts of its employees

[176]The material parts of Section 109 of the Equality Act provides as follows (with emphasis added): 109 Liability of employers and principals(1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.

(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval.

(4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A— (a) from doing that thing, or (b) from doing anything of that description.

(5) ….

[177]In Jones v Tower Boot Co Ltd

[1997] IRLR 168

the Court of Appeal held that the words “in the course of employment” should be interpreted in the sense in which they are employed in everyday speech and not restrictively by reference to the principles laid down by case law for establishing an employer's vicarious liability for the torts committed by an employee.

[178]There is no distinction in the approach that should be taken between harassment and discrimination conducted face to face and the same conduct by electronic means. However in asking whether such conduct is in the course of employment relevant factors may include whether the communication was made in working hours or in private time, whose equipment was used and whether reference was made to fellow employees: Forbes v LHR Airport Ltd

[2019] IRLR 890

Discussion and conclusions

[179]In our findings above we have reached decisions in respect of the 17 allegations advanced by the Claimant. We have found that the Claimant has entirely failed to establish the facts she relied upon in respect of allegations: 179.1. 6, Charlotte and Reece Cashman saying that M pushed the Claimant out of his house because she smells; and 179.2. 9, being prevented from taking tea breaks (although it is agreed that the Claimant was told not to use her telephone); and 179.3. 14, being told to go home having attended two consecutive night shifts; and 179.4. 15, members of staff making inappropriate comments about service users. 179.5. 17, being required to pick up a patient from hospital when other employees had refused to do so. 179.6. 19, being informed that Reece Cashman and Cameron did not like black people and thought she was lazy and stupid.

[180]In respect of all other incidents we have found that at least to some extent the treatment that the Claimant complains of has occurred. It follows that we need to make findings as to whether that treatment related to race or sex or alternatively whether race or sex was a reason for the treatment.

[181]We will address each issue in turn below but in order to assess whether the burden of proof passes to the Respondent to show that their treatment is not unlawful we have to have regard to all the relevant evidence with the exception of any explanation given by the Respondent for the treatment. We need to ask whether that evidence could support a finding of unlawful conduct.

[182]Putting to one side allegation 8, we have not found any treatment of the Claimant where there was any overt connection between the treatment afforded to the Claimant and race or sex. An overt reference to race or sex is not the only way that an action can relate to sex or race for the purposes of Section 26 of the Equality Act 2010. Where the mental process of the person doing the act or omission is informed by considerations of race or sex then that will be sufficient to establish that the conduct is related to those protected characteristics.

[183]The Claimant’s case must be that the nature of the manner in which she was treated overall in comparison to others would means that an inference of unlawful harassment or discrimination could be drawn.

[184]We have set out above our findings about the conduct of Cameron in sending text messages to the Claimant. Below we have reached the conclusion that that conduct related to both race and sex. A question we needed to address was the extent to which our conclusions in respect of this matter could properly support an inference of discrimination in respect of other matters. It seems to us that the acts of Cameron are incapable of supporting an inference that others, who were not at the time aware of the acts, may have harassed or discriminated against the Claimant because of sex or race. We note that Gemma Cooper became aware of the facts during her disciplinary investigation. It might be said that she could have taken a more robust approach to the conduct but failed to do so. That would perhaps lend some weight to an argument that the burden of proof might shift in relation to any further conduct by her but there are no complaints made that her actions were discriminatory.

[185]An inference can readily be drawn in circumstances where a claimant has established that a comparator in the same material circumstances has been treated better than her. We address the comparators referred to by the Claimant in our assessment of each allegation below. Allegation 1 together with factual Allegation 13 - the dismissal.

[186]It is sensible to take factual allegation 1 together with factual allegation 13 although they are not distinct allegations. The complaint that is made is about dismissal and here there is no dispute that the Claimant was dismissed.

[187]Whether or not we treat this allegation as a complaint of harassment or whether we treat it as complaint of direct discrimination; the same material considerations apply. What is essential is a finding as to the reason for the treatment and/or whether the treatment related to race or sex. We shall assume that being dismissed is capable of creating the proscribed environment set out in Section 26 of the Equality Act 2010. It certainly could do if it related to race or sex.

[188]The Claimant has compared her treatment with that of Cameron. She places weight on the fact that Cameron had issues with alcohol and she says that he used cannabis at work. These would be highly relevant facts if we had accepted that the alcohol and drug use were known. We have set out above our conclusion that these facts were not known. Relevant material circumstances would include the number of absences and compliance with the absence management policy. They would also include compliance with the requirement to do the Boots training. We do not accept that Cameron was in the same material circumstances as the Claimant. We accept that Cameron had some absences from work but there was no evidence of any failure to comply with the absence management policy. We were not told whether he had done the Boots training.

[189]We do not consider that the facts that gave rise to Allegation 8 support an inference that race or sex played any part in Sacha Cambron’s reasoning. She was not aware of the conduct, she had not condoned the conduct and we have not accepted that there was any similar conduct condoned in the workplace.

[190]We were told by Sasha Cambron that of 30 Support Workers 25 were white 4 were black and 1 was of another ethnicity. We accept Sasha Cambron’s evidence which was that that means that black people were overrepresented in the workforce. We do not consider that there is anything in the ethnic make up of the Respondent’s business that would support an inference of discrimination. We note that Sasha Cambron was of mixed heritage and had been appointed as Home Manager. That does not mean of course that she could not discriminate on the grounds of race.

[191]We have regard to the entirety of our findings. We step back and ask whether from those findings, absent an explanation for the dismissal, could we properly infer that the treatment related to race or that a reason for the treatment was race or sex. We have concluded that we could not reach such a conclusion. The Claimant has not proven facts sufficient to support any such inference(s).

[192]If we were wrong about the first conclusion then the burden of proof would pass to the Respondent to prove that the treatment dis not relate to race or sex and/or that the reasons for the dismissal were not because of race.

[193]We are entirely satisfied by the evidence given by Sasha Cambron as to what was in her mind at the time that she took the decision that the Claimant should fail her probation period. We find that she knew nothing of any allegations about Cameron and that highest in her mind was her concern that the Claimant had had high levels of absence, some 13 absences including some Covid absences none of which of course are to be regarded as the Claimant’s fault but that we find for Sasha Cambron was irrelevant. She was focused on reliability and not fault. However, on 3 occasions the Claimant failed to follow the absence management procedure.

[194]We have already identified in our findings of fact above that this was a matter of considerable concern to the Respondent and for good reason. We are not hearing an unfair dismissal claim. The dismissal may or may not be unfair as it makes little difference save for the purposes of asking ourselves was the dismissal so shockingly unfair or so harsh that it cries out for an explanation. Sadly, we don’t find the dismissal was shockingly unfair or harsh, we find that it was almost inevitable. The Claimant was on notice for some time that continued absences might lead to her dismissal and nevertheless she was unable through no fault of her own to turn matters around. She is of course somewhat to blame for not following the process that was to be followed.

[195]We are entirely satisfied that the entirety of the reasons that Sacha Cambron had for not confirming the Claimant in her post were the concerns about her performance. There were some subsidiary concerns about her training that played a minor part in her decision making. Overall, we are satisfied that her race and or her gender played no part in it at all.

[196]The second allegation that we dealt with in the findings of fact above, is whether or not Charlotte spoke to the Claimant as though she did not understand English. This is brought only as a claim of harassment relating to race or as direct race discrimination.

[197]We have rejected any suggestion that there was any loud or exaggerated speaking by Charlotte Cashman. That was not really how the Claimant put her case. Her complaint is perhaps more accurately encapsulated as a complaint about being spoken down to. The only clear example she gave was the suggestion that Charlotte Cashman had given her instructions when cooking hot dogs. That was flatly denied by Charlotte Cashman and we have accepted her evidence. We have found that there was no other example given by the Claimant save for the ‘rice incident’ which we have dealt with separately. It follows that the Claimant has failed to prove that the events she complained of occurred in the way she put her case. It follows that the case fails.

[198]Of our own volition we considered the the possibility that Charlotte Cashman amended her language when speaking to the Claimant. We stress that we make no finding that she did. Had the Claimant put her case in this way we do not find that it necessarily would have succeeded. Adapting language in order to be better understood is not ‘because of race’ unless it is the product of some stereotype. The reason for such treatment is to communicate better. The proper comparator is an British person with the same language skills. Allegation 3 and Allegation 7 The next allegation that we need to deal with is allegation 3 and 7 together which are the two cleaning incidents.

[199]We have accepted the fact that the Claimant was expected to clean up after the day shift on occasions. In respect of the occasion on the 28 August 2020, we find the Claimant has not established that she was subjected to any detriment. The simple reason being that a detriment requires something that an employee could reasonably complain about. A reasonable employee would be aware of the circumstances arising in the care home. We find that the attitude of the Claimant towards being asked to clear up after the day shift meets the test of an unjustifiable sense of grievance.

[200]If we are wrong about that then we need to consider whether the Claimant has proved facts from which we could infer that the fact that the washing up was not completed could amount to harassment and/or discrimination. We have had regard to the totality of the evidence. We have disregarded the explanation given that it was generally understood that the day shift would leave some cleaning tasks for the night shift. We are not satisfied that the Claimant has proved facts from which we could properly conclude that leaving some washing up for the night shift to complete was harassment or discrimination related to/because of race or sex. As such the claim must fail.

[201]If we are wrong about that we are entirely satisfied by the reasons put forward by the Respondent. We have rejected the Claimant’s case that Charlotte Cashman deliberately ensured that the Claimant was rostered to work after Reece Cashman. We are satisfied from the evidence given by the Respondent’s witnesses that leaving the washing up for the night shift was commonplace if the day shift had been busy. We are satisfied that on this occasion that is exactly what happened. We are satisfied that that is a complete explanation.

[202]Dealing with is allegation as a harassment claim we are entirely satisfied that the fact that washing up was left for the Claimant to complete was not done for the purpose of creating the proscribed environment set out in Section 27 of the Equality Act 2010. We turn to the question of whether this treatment had that effect. We would accept that the Claimant was annoyed – that is why she took photographs. The question we need to ask is whether being expected to finish washing up is something capable of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. If it is not reasonable for the conduct to have that effect then the claim must fail. We find that it is not reasonable for this conduct to have the proscribed effect.

[203]We would accept that being asked to clean up the spilt rice might reasonably be seen as a detriment particularly at the end of a long night shift. We reach this conclusion because there was an implied criticism of the Claimant and indeed her co-worker when she was asked in a public area to clear up the rice.

[204]We have rejected the factual contention made by the Claimant that she was spoken to in an intimidating manner.

[205]In respect of this allegation we do not need to concern ourselves that whether the question of the burden of proof has shifted and should assume against the Respondent that it has.

[206]In our view it is necessary to break the decisions down as they went along. The first request to clear up the rice was made by Lyndsey Langham, however that request was directed towards two employees. What was the reason for the treatment? We find that the primary reason for the treatment was that there was rice left lying around in the living room and there was a proper need for the premises to be kept clean.

[207]The second reason for the treatment is that it was those two individuals who had been on the night shift, and it was a reasonable expectation of Lyndsey that the rice would have been cleaned up. She asked the two people who had been responsible for the cleaning to undertake that task.

[208]The Claimant does not share the same race as her colleague. We are satisfied that the entirety of the reasons for the treatment were that Lyndsey Langham asked those people that she thought had made an omission, mistake, or an error to rectify that error and that is her entirety of her reasoning. That has nothing in our view nothing whatsoever had to do with the Claimant’s gender or her race.

[209]We turn to the next part of the allegation which is Charlotte Cashman’s request. Her reasons are slightly different, and she directed her request to clean up to the Claimant alone. We find that her reasons were as follows. Firstly, she had been brought in as a more senior manager in order to assert managerial authority over an employee who refused to undertake what we find was a reasonable instruction. Her request was aimed at that person. Secondly, she had learnt, or at least she believed, that the Claimant had cleaned downstairs while her colleague cleaned upstairs and that was a subsidiary reason as to why she addressed the Claimant and the Claimant alone. It follows that the decision was neither made because of race or gender nor indeed does the decision relate to race or gender. We do not need to consider whether the conduct was sufficient to amount to create a prescribed environment to the purposes of the harassment claim.

[210]The suggestion is that the Claimant had been asked to look after a patient A by herself, whereas others had done so with two people present. We refer to our findings of fact above. We have found that it was the default position that A would be cared for by one person other than in certain limited circumstances. The Respondent was following the agreed care plan which is backed by the funding from the local authorities.

[211]We note that in the list of issues this is identified only as a case concerning sex. That is plainly an error given the choice of two ‘white’ comparators (one of whom is said to be Mauritian). The other comparator remained unidentified.

[212]It is unnecessary to deal with the issue of whether the burden of proof has passed to the Respondent. We shall assume that it has. The explanation given by the Respondent is that having a staffing ratio of one to one was the norm and in line with the care plan. There might be exceptions for that and one of those was the Claimant’s chosen comparator JC. We have found above that the reason that JC did not work alone with A was that he had previously injured her and lone working had been ruled out in a risk assessment. The simple point in respect of this allegation is that the Claimant was asked to care for A by herself because that is what the care plan provided for and that was the service that was funded by the local authority. That is neither related to race nor is it because of race.

[213]This allegation is in relation to the Claimant being made to stand outside in the summer. We would accept that even on our own findings which do not match the Claimant’s pleaded allegation that she spent 7 ½ hours in the sun a few hours in the hot sunshine would be unpleasant and therefore she had suffered a detriment.

[214]The focus must be on the instruction that was given. The Claimant was required to and was expected to follow the care plan. When the Claimant drew to Reese Cashman’s attention the fact that she was standing outside, he indicated that she should go back and stand outside M’s rooms. What he was instructing her to do was to follow a well thought out care plan which required interventions to be made every 10 minutes to see whether any normality could be restored.

[215]Again, it is possible for us to move directly to the reasons for the treatment. Was the reason for the treatment as the Claimant says was influenced by her race or other stereotype was applied to whether she would be sunburnt? In our view it was not. That stereotype comes only from the Claimant. Nothing said or done in the workplace supports a conclusion that it was applied by anybody in the workplace.

[216]We are entirely satisfied that any instruction that the Claimant was given was instruction to follow the well thought out care plan. That instruction is the same instruction that would have been given to anybody else. Had the Claimant persistently asked for assistance or to come inside and been refused then we may have taken a different view but that simply isn’t the facts of this case. On her own account she asked once, she was instructed to follow the care plan. We find that the entirety of the reasons for the treatment was that Reece Cashman was instructing the Claimant to follow a well thought out and established care plan and that he had no knowledge that the Claimant was stuck outside in the sunshine for longer than he might have anticipated. That reason is nothing to do with sex or race nor does the conduct relate to sex or race.

[217]In relation to allegation 6, we can deal with it fairly briefly. We do not find that the comments were made at all and therefore it is unnecessary to deal with them at all. We are unable to deal with the reasons for the treatment that we find did not take place.

[218]We approach allegation 8 initially as a claim of harassment. We have dealt with above our findings of fact about the degree of friendship between the Claimant and Cameron. Those findings go to the issue of whether the conduct was unwanted. We would accept that within a close friendships remarks of a personal nature which would be obviously unwanted in a more distant relationship might be taken to be normal. We have accepted the Claimants accounts that she was friendly but not friends with Cameron. Our conclusion is that they were work collegues on good terms.

[219]The argument put forward by the Respondent to support the suggestion that the Claimant did not regard the conduct as unwanted was that it was clear from the fact that the Claimant told Cameron to ‘Suck cock’ was suggestive of the fact that they would share sexual remarks. Whilst the argument was attractively put by Ms Brown we cannot accept it. The Claimant’s comments have to be seen in context. It is clear from the text exchanges that the Claimant is telling Cameron off for being drunk. We find that telling him to ‘Suck cock’ was a response to his offensive comments about her appearance. It is important to note that Cameron recognised that he needed to apologise for his actions. He knew he had offended the Claimant.

[220]We accept the Claimant’s account that whist she was friendly with Cameron they were not on the sort of terms where he could assume that he could make personal remarks unless he was told otherwise. We have concluded that the conduct was unwanted. The Claimant’s immediate reaction was to make that clear.

[221]We do not find that Cameron said what he did with any intent to offend. He was drunk and it is clear that he regarded the Claimant as a friend. We find that he believed that he was being complementary. It follows that there is no basis for a finding that Cameron’s purpose in making the remarks was to create the proscribed environment.

[222]We turn then to the question of whether the text messages sent by Cameron had the effect of creating the prescribed effect. If the remarks had the effect of creating an offensive environment that would be sufficient. It would be unnecessary to consider whether the remarks had the effect of violating the Claimant’s dignity or a intimidating, hostile, degrading or humiliating environment.

[223]The first matter that Section 26(4) requires the Tribunal to take account of is the perception of the Claimant. We have the evidence from Cameron’s interview during the grievance process. He recognised that the Claimant had responded robustly. He recognised that he needed to apologise. We have had regard to the entirety of the text exchanges. It is clear to us that even before the remarks were made the Claimant was fed up with dealing with her drunk colleague. We accept the evidence of the Claimant that she was upset about the remarks made about her. He view was clearly that they had crossed a line and were unacceptable. We find that the Claimant considered the remarks to be offensive.

[224]We need to have regard to the surrounding circumstances. In that we take account of the fact that, as we find it, the Claimant and Cameron were on good terms at work and would exchange text messages dealing with matters not directly concerning work. We must also have regard to the fact that we have concluded that these comments were a continuation of conversation that Cameron had heard between the Claimant and Shiela in the workplace.

[225]We turn to the question of whether the Claimant’s subjective opinion that the remarks created an offensive environment is objectively reasonable. We have regard to the guidance in Dhaliwal we recognise that the law should not encourage a culture of hypersensitivity. We do not consider it in any way hypersensitive for the Claimant to take exception to Cameron making remarks about her bottom and nose in a drunken conversation. It follows that we find that the Claimant has established that it was reasonable for for Cameron’s conduct to have the effect of creating an offensive environment for the Claimant.

[226]We need to deal with whether the conduct related to sex. We find that it did. The concept of ‘related’ is broader than ‘because of’. We consider that remarks about a woman’s personal appearance are capable of relating to sex. We find that they did so in this context. We are reinforced in that conclusion by the fact that Cameron referred to ‘women’ being prepared to pay a lot of money to have a bottom like the Claimant’s.

[227]We then turn to the question of whether the comments related to race. We found this somewhat more nuanced. The Claimant’s argument was that physical features such as a larger nose or bottom were associated with her racial origins. We accept the Claimant’s argument. In the same way that unwanted comments about an item of clothing adopted for cultural reasons of braded hair might ‘relate to’ race remarks such as those made by Cameron about body shapes can also do so. We find that they did so in the present case.

[228]The Claimant has put an alternative case relying on Section 26(2). For the claim to succeed on that basis she would need to show that the remarks made by Cameron were of a ‘sexual nature’. We do not consider that every remark about a persons appearance is of a sexual nature. We need to have regard to the context and at some points Cameron is using language such as ‘miss you’. We have considered whether that suggests that the comments about the Claimant’s appearance were a prelude to advances of a sexual nature. We have come to the conclusion that they were not. We consider the personal remarks to have been unacceptable but do not find that they were of a sexual nature.

[229]Finally we need to deal with the issue of whether the remarks made by Cameron were made in the course of his employment. We remind ourselves of the case law we have set out above. We accept that the telephone call conversation was not a ‘work call’ . The topics of conversation, principally initiated by Cameron, were not about work. We have rejected the Respondent’s contention that the remarks were made in the context of a close friendship. We find that they were made in the conext of a relationship forged at work between two colleagues who were on friendly terms.

[230]We find, and consider it significant, that the Claimant and Cameron initially shared their personal telephone numbers for work purposes. We find that when the conversation took place the Claimant was at work. We have also found that the reason Cameron felt that he could refer to the Claimant’s appearance was that he had observed Shiela referring to the Claimant’s appearance on the workplace. The reference to some people thinking the Claimant’s bottom was ‘fake’ was we find a reference to things said in the workplace. We need not make a finding as to who said this beyond the findings that we have made.

[231]We have concluded that in these circumstances we have a situation where workplace conversations have continued , on Cameron’s part, out of hours by a means of communication initially established for work purposes. We have concluded that this is a sufficient basis for a conclusion that the conduct was in the course of Cameron’s employment.

[232]The Respondent did not positively advance any defence available under Section 109(4) of the Equality Act 2010.

[233]Having found a claim of harassment made out we do not need to go any further and deal with the claim of direct discrimination. It is sufficient however to say that if we had to do so, we would have found that the claim of sex discrimination would have been made out. The Claimant had established facts from which sex discrimination could have been inferred. The Respondent did not call any direct evidence from Cameron and it would not have been open to the Tribunal to have concluded that he would have made similar remarks about a man.

[234]It follows that this claim succeeds. There is no dispute that the Claimant presented this complaint within the time limits imposed by Section 123 of the Equality Act 2010.

[235]Allegation 9 was that the Claimant was not permitted to take breaks. We have not accepted that the Claimant was prevented from taking a tea break. It is therefore unnecessary and impossible for us to deal with the reasons for the treatment. Our findings mean that the Claimant cannot succeed.

[236]For completeness we are entirely satisfied with Sasha Cambron’s account of the reasons why she asked the Claimant not to use her telephone. These were that she was being loud and likely to disturb the service users. That is a reason nether related to or because of sex or race

[237]Allegation 10 relates to the frequency of requests that the Claimant drove service users.

[238]The case is brought only as a claim of direct race or sex discrimination. We are satisfied that the Claimant volunteered for driving duties. We find that there was nothing more onerous about those duties than the duties that would otherwise be undertaken in the care home. We find that the Claimant has failed to establish that the level of driving duties that she undertook amounted to a detriment at all. We consider that having volunteered being assigned the level of driving that she was, was not something that a reasonable employee would complain of. The case would fail on that basis alone.

[239]We then consider whether the Claimant has established facts from which we could infer discrimination. The evidence shows that the Claimant was not the most frequent driver. Angela Costin drove more frequently than the Claimant. We note that another black employee also drove frequently. We do not consider that Cameron’s conduct assists the Claimant for the reasons explained elsewhere. We have concluded that the Claimant has not established facts from which we could conclude that the reason she was asked to drive service users at the level she was, was discriminatory. As such this claim falls to be dismissed.

[240]If we are wrong about that we are entirely satisfied that the only reason that the Claimant was asked to drive was on the basis of availability and need. Not everybody could drive or was willing to do so. The Claimant was willing to do so. We find that these were the only reasons why the Claimant was asked to drive and it had nothing to do with her race. Assuming the burden of proof was passed to the Respondent it was discharged.

[241]Allegation 11 relates to two instances when the Claimant was asked to drive G. It is an allegation of direct discrimination because of race or sex. We have set out our findings of fact above. The Claimant was asked to drive G. G did took his seatbelt off. That would clearly have been scary for the Claimant and an unpleasant incident. Nothing much was done for some time afterwards and she was asked to continue doing so and there was a repeat incident in October. The Claimant says that tis is direct race and sex discrimination.

[242]We find that these incidents meet the threshold of amounting to a detriment and we need to look at the reasons for the treatment. However once again we are able to move directly to the Respondent’s explanation of the treatment . The Respondent was following the care plan that they were given which is supported by the budget provided by the local authority. It was a matter which they were prepared to review and did so.

[243]In the period between August and October when a review was undertaken, G was driven by a large number of people who did not share the Claimant’s characteristics. After a decision was taken in October to do nothing more about it, that status quo continued for people again not sharing the Claimant’s race or sex.

[244]We are entirely satisfied that the reason for the treatment was that the Respondent was following the agreed care plan and decisions made following a risk assessment. That plan and that risk assessment was that G could be accompanied by just one staff member and did not need any restraint beyond a seatbelt. That is a reason entirely independent of race or sex.

[245]We wouldn’t wish to leave this incident without saying that we have a great deal of sympathy for the Claimant finding herself in that particular situation, she must have been scared. That said whilst it is not our role to comment on the wisdom of the risk assessment we will say that it includes a thoughtful review of the pros and cons of additional restraints. Allegations 14 and 15

[246]We have dealt with these matters in our findings of fact above. In each case we have found that the Claimant has failed to establish that the matters that she has complained about actually occurred. It follows that the claims must be dismissed.

[247]There was no dispute but factual basis that the Claimant may have been asked to go with a service user to meet the parents three times while the key worker wasn’t present. This is said to be direct discrimination because of sex or race.

[248]As we understood the Claimant’s case she believed that there was some special status to being regarded as a key worker. We find that there was no particular status to being a key worker but a person would be regarded as a key worker if they worked regularly with a particular service user.

[249]If the Claimant had established that she had been placed in a difficult position by meeting parents when accompanying a service user who she did not usually work with then she might have persuaded us that she was subjected to a detriment. However she described no such difficulties. He case appears to be that having not been designated as a key worker it was improper for her to meet parents without a key worker present. We do not find that that amounts to a detriment. If the Claimant is troubled by this at all we find that it is an unjustified sense of grievance.

[250]If we are wrong about that we need to consider whether the Claimant has proved facts from which we could infer that this state of affairs was direct discrimination. We find that the Claimant has failed to do that. There is simply no basis for inferring that the Claimant was asked to meet parents as a discriminatory act. This is not a case where there is anything that cries out for an explanation whether in isolation or against the background of all other acts. It follows that the case falls at this juncture and is dismissed.

[251]Allegation 17 is being required to drive to the hospital in a defective vehicle. It is a claim of direct discrimination. We have rejected the Claimants account of these events and we most importantly have rejected the fact that she was required to drive a defective vehicle or that other people were unwilling to drive the car. Having rejected that account it follows that the claim cannot succeed.

[252]Insofar as this allegation can be taken to be a complaint that the Claimant was asked to drive at all we repeat our conclusions in relation to paragraph 10. In short, that being asked to drive was not a detriment or something a reasonable employee would complain of. The Claimant has not proven any facts that would allow us to infer in the absence of an explanation from the Respondent that the decision to ask her to drive on this occasion was discriminatory. In any event we are satisfied that the reasons why the Claimant was asked to drive were that she was available to do so and that that had nothing at all to do with race or sex.

[253]We have rejected the Claimant’s factual account of the events giving rise to allegation 19. It follows that the claims of harassment related to race and sex cannot succeed and are dismissed.

Discussion and conclusions

[1]The Claimant is awarded £3,500 in respect of injury to feelings incurred because of the unlawful harassment related to race and sex occurring on 23 September 2020.

[2]The Claimant is entitled to interest pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 on the sum of £3500 from 23 September 2020 to 19 July 2020 at an interest rate of 8% being a total of £1,070.27.

[3]The Respondent is ordered to pay the Claimant the sums of £3,500 and £1,070.27 being a total sum of £4,570.27.