Mr N Waziri v First Call Contract Services Ltd and Others: 3305218/2023 and 3308997/2023
EMPLOYMENT TRIBUNALS
Case No 3305218/2023, 3308997/2023
Between
Mr N. WaziriClaimant(1) First Call Contract Services Ltd (2) Ms I. Stankeviciene (3) Ms G. KirkmanRespondent
Before
Employment Judge ChudleighIn person for claimantDate 12 March 2025
JUDGMENT
The claimant’s complaints of race discrimination are not well-founded and are dismissed.
REASONS
[1]The claimant complains of direct race discrimination contrary to section 13 of the Equality Act 2010 (EqA”) arising from a job application for the role of aircraft cleaner at DHL Gatwick made to the first respondent (“R1”) on around 21 March 2023.[2]The claimant presented a first claim to the employment tribunal on 9 May 2023 (case number: 3305218/2023). He then presented a second claim (case number 3308997/2023) on 26 July 2023. At a case management hearing on 11 November 2024 EJ Hawksworth determined that the second claim was a near duplicate of the first and ordered that the two claims should be heard together because they contain common matters of fact and law and it is in the interests of justice to do so. It appeared to me that the second claim might have been presented out of time, but because it was a duplicate of the first claim, that issue was academic.[3]The issues for determination were identified by EJ Hawksworth as follows:[1]Did the respondent do the following things as alleged by the claimant: a) On 22 March 2023 the second respondent (“R2”), recruitment resourcer, sent the claimant a message on WhatsApp saying that she could not check his right to work and he should contact the Home Office, this was a lie because she had confirmed the claimant’s right to work already (by carrying out an ECS check); b) On 22 March 2023 R2 refused the claimant his job role; c) On 27 or 28 March 2023 the third respondent (“R3”), account manager, denied the claimant his right to work and lied about the claimant, saying that he was kicked out of school.[2]If so, was that less favourable treatment? The tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the tribunal will decide whether he was treated worse than someone else would have been treated. The claimant describes himself as Black African and compares his treatment with people who are white. He has not named anyone who he says was treated better than him and he relies on a hypothetical comparator. If so, was it because of race?[4]Remedy Preliminary matters Without prejudice material 4. There was material in the bundle relating to without prejudice communications between the parties and ACAS. The claimant maintained that it was necessary to put that material before the tribunal as it assisted his case, including because it showed that the respondents admitted that they had made a mistake regarding his right to work.
Preliminary matters
[5]The respondents did not object to the material being included in the bundle or to the tribunal having sight of it.[6]In the circumstances, I considered it was in the interests of justice to allow the claimant to refer to that material. Documents[7]The claimant alleged that the respondents had not included documents in the bundle that he had sent to the respondents’ previous lawyer.[8]The case management order of 11 November 2024 required the respondents to prepare a draft bundle and for the claimant to then send the respondents any additional documents for inclusion.[9]The claimant sent his additional documents to the tribunal on 12 January 2025 and those documents were included in the bundle by the respondent. However, at the hearing the claimant said there were more documents he wished to rely on.[10]Accordingly, I adjourned the case at 10.53 am on the first morning to enable the claimant to send copies of those documents to the tribunal and to the respondent before re-starting the case at 12 noon. The claimant sent those documents to the tribunal and the respondents although it transpired that many had in fact been included in the bundle.
Findings of fact
[11]I heard evidence from the claimant, R2, a recruitment consultant previously employed by R1, R3, Senior Account Manager-Aviation employed by R1 and Mr D. Segust, Compliance Director of R1. I made the following findings of fact:
Findings of fact
[1]R1 is a recruitment company who recruit, select and place workers and employees into positions within various industries including the aviation sectors. It has sixteen locations and employ approximately 105 employees across all locations. The claimant’s race is Black African.[3]On 21 March 2023, the claimant applied to R1 for online for a position of aircraft cleaner at DHL Gatwick (“the role”). The position was a full-time, night shift role as a night cleaner at Gatwick Airport, following a 4-on/4-off shift pattern.[4]As the role was within aviation the recruitment and onboarding process for all applicants involved strict security measures and onboarding processes.[5]There were five mandatory stages, each of which had to be completed before progressing further. This approach was designed to ensure that all employees meet compliance, security, and training requirements before assuming their roles: Stage 1 involves applying, undergoing right to work checks, and attending an interview. Stage 2 is an online client induction, which candidates are invited to complete remotely. Stage 3 requires candidates to collect a temporary airside pass from Gatwick Airport, during which an aviation vetting process is conducted. Stage 4 marks the commencement of training at Gatwick Airport. Candidates must successfully complete both training and vetting at this stage; failure to do so results in termination of the assignment. Stage 5 is the issuance of a permanent airside pass, marking the final step in the onboarding process.[6]R1’s Eligibility to Work Policy and Procedure sets out its process for conducting right to work checks for all jobseekers. R1’s right to work check includes checks to verify the candidate’s legal eligibility to work in the UK. Such checks are undertaken by R1 for all applicants, including British nationals.[7]On his application form the claimant said he was Nigerian and alluded to being an asylum seeker, a fact he made known to R1 at his interview. He also mentioned on his application form that he had been a student at Leeds Beckett University from 20 January 2020 to 21 June 2021.[8]On the application form the claimant confirmed that he had read, understood and downloaded a copy of the temporary colleague contractual terms. His position was that this, along with a section on the interview sheet confirming that R2 had discussed matters with him such as behaviour at work and absence reporting, meant that there was a concluded contract for him to work in the position of aircraft cleaner at DHL Gatwick.[9]However, the claimant misunderstood the process. R1 is a recruitment company. DHL Gatwick is a third party company and at that stage, even if there was a contract between R1 and the claimant, he had not been through the recruitment and onboarding process for work in the role. As Mr Segust explained, the contract was temporary contract for services but there was no offer of work, no obligation on R1 to offer work and no obligation on the part of the claimant to accept work.[10]The claimant was interviewed by R2 on behalf of R1 on 22 March 2023 in person, in offices at or near Gatwick Airport. During that meeting the claimant told R2 that he had been dismissed from school. What he meant was that he was no longer at University.[11]At the end of the interview the claimant was informed by R2 that she would proceed with completing the necessary paperwork and right to work checks. He was also told that if everything was in order, the claimant would then be invited to the online induction, which is stage 2 of the process application process for the role.[12]In the declaration in his application form the claimant authorised R1 to seek references from government agencies to verify the information he had provided.[13]The claimant had uploaded his Application Registration Card (“ARC card”) dated 14 February 2023 as part of his application. An ARC is a plastic card issued by the Home Office to individuals who claim asylum. That card indicated the claimant’s work status was “student”. The box on the bottom right-hand side of the paper the card was attached to specified that the employer must use the Employer Checking Service (“ECS”) before employment begins and every six months thereafter.[14]R2 used the ECS to check the claimants right to work. On 27 March 2023 R1 received a positive verification notice, which, confirmed that the claimant was permitted to work, but subject to the restrictions outlined in Section 4 which stated: "Student: A maximum of 20 hours per week during term time. No Self Employment."[15]This restriction led R2 to believe that the claimant would not be eligible for the role due to what she understood to be a 20-hour term time weekly limit as the role was a full-time position.[16]On 27 March 2023 there were a series of communications between the claimant and R2 on WhatsApp. R2 told the claimant that he needed to contact the Home Office as “apparently I can’t check your Right to Work” and “It means. I can’t send you work”. She also asked the claimant for his graduation certificate given her understanding that he was present in the UK on a student visa. The claimant responded with , “I am not schooling and I never told you I graduated”.[17]This raised a further concern for R2, as it suggested that he might have lost his right to work due to a potential breach of his visa conditions.[18]R2 then sent the claimant a copy of the ECS check. His response was to tell R2 to contact the Home Office. R2 declined to do so and said she had done all she could do from her side and if he had queries he should contact the Home Office himself.[19]On 28 March 2023 the claimant emailed R1 stating that he is allowed to work full time as he was “not schooling”.[20]Later that day R3 wrote to the claimant stating she had double-checked with the compliance team and although he had stated that he was no longer a student, the ECS check confirmed that his status was still recorded as a student permitted to work a maximum of 20 hours per week during term time and more hours when not studying. She said they were legally required to go by this and advised the claimant that if he disagreed, he would need to have his right to work status updated with the Home Office. She added “So for the above we would not be able to accept you for this job role as you would need to be full time available”.[21]The claimant’s response was to say, “You misinterpreted the meaning that is why [I] ask you to ask home office if [I] am schooling, As it is strictly an employer checking service not employees, However, this is the copy of enrolment letter of the school in question as that was the first and last school [I] ever attended in U.K, Please check the start date and last date at school and i can sign and guarantee i am speaking the truth…” He attached a copy of his enrolment letter that indicated he had not been at University since 2021.[22]R3 responded to say that R1 is a recruitment agency that goes by the right to work document and that “legally we have to do this therefore as stated below we cannot take you further for this role until your right to work has been updated by the home office”. She also reiterated that R1 could not contact the Home Office about his status and that was his job.[23]The claimant then contacted ACAS to start the early conciliation process regarding his rejection by R1.[24]Mr Segust heard from ACAS on 11 April 2023 and carried out an investigation.[25]As a result of his investigation, Mr Segust found that R2 and R3 had misunderstood the claimant’s right to work status. The claimant’s employment restriction conditions indicated that he was a student with a work restriction of 20 hours per week. However: a) While students on a visa are generally permitted to work 20 hours per week during term time and full-time outside of term time, they must be actively attending their course. b) If a student is no longer attending their course and has not officially completed it, they lose their right to work. c) However, rules are different for asylum seekers such as the claimant as they are permitted to work even if no longer engaged in education.[26]Like R2 and R3, Mr Segust had been unaware of this distinction for asylum seekers. However, upon receiving clarification of the position given the claimant’s status as an asylum seeker, Mr Segust accepted that the claimant did, in fact, have the right to work full time.[27]On 11 April 2023 Mr Segust explained to the claimant why his application to work was denied, acknowledged that a mistake had been made, apologised, and asked if he would like to continue with his application process and confirmed that they would be pleased to have him on board.[28]At the point of the recruitment process for the role, having completed only stage 1, the work placement could not be progressed in respect of the role until the claimant completed and passed DHL Gatwick’s online induction which, at the earliest would have been 17 April 2023.[29]The claimant did not accept that explanation.[30]Mr Segust then offered the claimant a small financial sum as a goodwill gesture and stated that he would request the office to arrange some shifts for him in a different role such as in a warehouse where the onboarding requirements were not as stringent. He also offered to progress the application for the role but was not able to parachute him into the role without all stages of the application process having been completed including the online induction and aviation vetting.[31]After further communications and negotiations between Mr Segust and the claimant, no resolution was reached.[32]The claimant considered that it was manipulative to force him to settle his claim in return for the role that he had legally earned. However, he was not offered the role as part of a settlement and he had not earned the right to the role as he had not progressed though all five stages. I did not consider that the respondents were being manipulative. It was not within R1’s gift to bypass the security measures in place for the aviation industry. Submissions 12. On behalf of the respondents Ms Barnett submitted two sets of written submissions, one outlined the law and the other addressed the facts. She submitted that the claimant must first present prima facie facts from which the tribunal could infer discrimination before the burden shifts to the respondents and that the claimant had not met this burden. He had provided no evidence that race or any protected characteristic played a role in the decision not to offer him employment. Instead, the evidence confirms:• The right to work check was applied consistently to all candidates in line with the respondents’ policies.• The recruitment process had five stages, which the claimant did not complete.• His nationality was already known to the respondents before any in-person meeting, negating any suggestion that race was a factor.• He was given multiple opportunities to proceed with his application but refused to do so. 13. The claimant’s case was that there was contract acceptance on 22 March 2023 after his interview, which meant that all right to work checks had been completed satisfactorily. The ECS showed that he was only allowed to work certain hours during term time but he was not a student at the time he applied for the role and his visa did not explicitly state that he must be a student. His case was that after he was seen in person and there was a realisation he was black, he was discriminated against. The law 14. Pursuant to section 13(1) EqA direct race discrimination takes place where a person treats another less favourably because of race than that person treats or would treat others. 15. Under s.23(1) EqA, when a comparison is made, there must be no material difference between the circumstances relating to each case. 16. Section136 EqA states that if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless the respondent can show that he or she did not contravene the provision. 17. Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258. However, in Madarassy v Nomura International plc [2007] IRLR 246, CA the Court of Appeal held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status and a difference in treatment. LJ Mummery stated at paragraph 56: “Those bare facts 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.” 18. Lord Hope stated in Hewage v Grampian Health Board [2012] IRLR 870 that the burden of proof provisions “…will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” 19. Accordingly, there are some cases where it is appropriate to consider the “reason why” the claimant was treated as he was without grappling with the shifting burden of proof. One such example is where there is a hypothetical rather than an actual comparator. See Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL, where Lord Nicholls at paragraph11 that: “…employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.” 20. Finally, it is important to note that an act may be rendered discriminatory by the mental processes, conscious or nonconscious, of the alleged discriminator. See the speech of Lord Nicholls in Nagarajan v London Regional Transport [1999] ICR 877, HL at 885E-H: “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. It goes without saying that in order to justify such an inference, the tribunal must first make findings of primary fact from which the inference may properly be drawn. Conduct of this nature by an employer, when the inference is legitimately drawn, falls squarely within the language of s.1(1)(a). The employer treated the complainant less favourably on racial grounds.” Conclusions 21. The first allegation of direct race discrimination is that on 22 March 2023 R2 sent the claimant a message on WhatsApp saying that she could not check his right to work and he should contact the Home Office, this was a lie because she had confirmed the claimant’s right to work already (by carrying out an ECS check) and because of the claimant’s race. 22. The actual date of the WhatsApp exchange between R2 and the claimant was 27 March 2023, not 22 March 2023 but nothing significant turned on that. 23. At 10.18 am on 27 March 2023 R2 messaged the claimant on WhatsApp saying that he should contact the Home Office as she could not check his right to work. 24. I did not consider this was a “lie” as R2 was not deliberately stating something she knew to be untrue, although it was a poorly worded message and inaccurate as in fact R2 had checked the claimant’s right to work using the ECS and on 27 March 2023 had received a positive verification notice confirming that the claimant was permitted to work subject to the restrictions outlined in section 4 namely: "Student: A maximum of 20 hours per week during term time. No Self Employment." 25. In the circumstances, I considered that the claimant had done enough to shift the burden of proof. 26. However, the reason why R2 sent the message in question to the claimant was because she understood that the restriction on his right to work meant that he was not eligible for the role due to the 20-hour term time weekly limit as the role was a full-time position. She understood that the claimant was no longer in education but considered that it was for him to clarify his right to work status with the Home Office, not R1. 27. In fact, the claimant did have a right to work full time despite what the ECS check indicated as he was an asylum seeker, but R2 did not understand this. 28. My conclusion was that this treatment was nothing whatsoever to do with race. It arose solely from R2’s understanding of the limits of the claimant’s right to work. 29. The claimant alleged during the hearing that when R2 saw him and realised that he was black, she determined that he should not be employed despite there already being a contract between him and R1. However even if there was a contract between R1 and the claimant, that did not give the claimant the contractual right to work in the role in question as he had not completed all relevant five stages, indeed, he did not progress to stage two. The issue was R2’s understanding of the claimant’s right to work. In my judgment, she would have done the same thing for a hypothetical white comparator in the same circumstances as the claimant, i.e. a job applicant who she believed did not have the right to work full-time. Further, it is worth noting that the claimant indicated on his application that he was Nigerian so his race would not have come as a surprise to R2. 30. Accordingly, this allegation fails both by virtue of the “reason why” test and upon comparison with a hypothetical comparator. 31. The second allegation of direct race discrimination is that on 22 March 2023 R2 refused the claimant the job role because of his race. 32. Again, the correct date is 27 March 2023, not 22 March 2023.
Conclusions
[33]What happened in my judgment, is that R2 refused the claimant the right to progress to Stage 2 of the onboarding process, i.e. an online client induction in circumstances where, she was wrong to do so as the claimant did in fact have the right to work full time given he was an asylum seeker.[34]Accordingly, the burden shifted to the respondents.[35]However, the respondents discharged that burden as I accepted that the reason why the claimant was denied progression in relation to the role was because R2 genuinely believed that the claimant did not have the right to work full-time during term time and the role was a full-time role. A hypothetical white comparator in the same or similar situation would have been treated exactly the same.[36]Accordingly, this allegation fails both by virtue of the “reason why” test and upon comparison with a hypothetical comparator.[37]The third allegation of direct race discrimination is that on 27 or 28 March 2023 R3 denied the claimant his right to work and lied about the claimant, saying that he was kicked out of school because of his race.[38]The date of the communications between R3 and the claimant was 28 March[39]I did not accept that R3 lied about the claimant, saying that he was kicked out of school. What she said in her email on 28 March 2023 at 3.25 pm was that the claimant had “mentioned to us that [he was] not a student anymore however as per the attached visa and ECS check we have conducted, yes it states you are a student can work 20 hours in term time, MORE hours when not studying”.[40]However, R3 did deny the claimant the right to the role as she said in her email of 28 March 2023 sent at 3.25 pm that “we would not be able to accept you for this job role”. Accordingly. I considered that the burden of proof shifted to the respondents.[41]The reason why R3 indicated that R1 would not be able to accept the claimant for the job role was set out in the email of 28 March 2023. R3 said having double checked with the compliance team because the claimant was not a student anymore and checks conducted stated that he was a student who could “work 20 hours in term time, MORE hours when not studying….. [w]e have to legally go by this, you would need to get your right to work updated with home office if you disagree”. Further, she stated that to be accepted for the job role “you would need to be full time available”.[42]I accepted that R3 genuinely believed that the claimant was not available to work full time by virtue of his immigration status and that R1 could therefore not legally place him in the role even though that belief was wrong. This was a full explanation for the treatment in question and in my view a hypothetical white comparator in the same or similar situation would have been treated exactly the same.[43]Accordingly, this allegation also fails both by virtue of the “reason why” test and upon comparison with a hypothetical comparator.[44]In the circumstances, each of the claimant’s allegations of direct race discrimination is not well founded and all are dismissed. Approved by: