Mrs L River and Mr L River v Minster Care Group Ltd: 3305272/2021 and others
EMPLOYMENT TRIBUNALS
Case No 3305272/2021
Between
Mrs L River and Mr L RiverClaimantMinster Care Group LtdRespondent
Before
Employment Judge AlliottDate 29 November 2022
JUDGMENT
[1]The first and second claimant’s claims are dismissed.
REASONS
[1]The first and second claimants were employed by the respondent as Carers on 21 September 2020. There is a dispute as to when their employment ceased. The respondent says it was on 4 November 2020 but the claimants say it was on 23 November 2020. By claim forms presented on 1 April 2021, following periods of early conciliation from 18 February to 3 March 2021, the claimants present claims for direct race discrimination contrary to s.13 of the Equality Act 2010.
The issues
[2]The issues were set out by Employment Judge Eeley following a preliminary hearing heard on 2 December 2021. They are as follows: “ 1 Direct race discrimination (Equality Act 2010 section 13)1.1 The claimants are both Romanian. They compare themselves with British workers (i.e. ‘non-foreign’ nationals)1.2 Did the respondent do the following things:1.2.1 Fail to give the claimants adequate information and details at their online interview about the job, terms and conditions, working conditions and living conditions.1.2.2 Fail to warn the claimants about inadequate staff to resident staffing ratios before the claimants accepted the job offer.1.2.3 Provide inadequate living accommodation for the claimants. The claimants say that they were accommodated with several other workers in a house where the manager’s office was located. They had their own bedroom but no separate cooking facilities. They did not have sufficient privacy. In short, it was not a proper home. They could not have brought their 5 year old daughter to live with them in that accommodation, as they intended to do.1.2.4 Place restrictions on when the claimants could leave their room or return to their room depending on whether the respondent had visitors to the premises.1.2.5 Fail to provide assistance to the claimants in obtaining alternative, private accommodation. The claimants say that the respondent promised such assistance including assisting with payment of a rental deposit/first month’s rent.1.2.6 Fail to provide the necessary facilities and support for the claimants to quarantine properly for 14 days for Covid 19 purposes. Without the necessary support the claimants had no choice but to leave their room and break quarantine in order to buy food and necessities and access the computer to complete their online training.1.2.7 Provided inadequate job training.1.2.8 Told the claimants that they would have a period of ‘work shadowing’ where they would observe experienced workers doing the job. In fact, the claimants did not get a period of observation but were required to do the full job role from the outset.1.2.9 Required the claimants to work in circumstances where they could not take proper or sufficient health and safety measures to look after the residents.1.2.10 Required the claimants to work with worse staff to resident ratios than British workers. The claimants say that they worked with 1 carer to 19 or 20 residents whereas the British workers on another floor had 2 carers to 6 or 7 residents.1.2.11 Ignored the claimants’ initial complaint/grievance and ‘fobbed the claimants off’ by asking for details of the claimants’ legal team rather than addressing the claimants’ complaints.1.2.12 Failed to tell the claimants how they could/should go about making a formal grievance complaint.1.2.13 Did not assist the claimants in obtaining their bank accounts and National Insurance numbers.1.2.14 Did not offer the claimants alternative accommodation in the local area.1.3 Was that less favourable treatment? The Tribunal will decide whether the claimants were treated worse than someone else was treated. There must be no material difference between their circumstances and the claimants’. If there was nobody in the same circumstances as the claimants, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimants say they were treated worse than British workers (names to be confirmed, if possible, once the respondent has provided further information). In the absence of a named actual comparator the claimants will rely on an appropriate hypothetical comparator.1.4 If so, was it because of nationality? 2. Remedy”[3]In addition it is clear to us that there are two further issues:3.1 When was the effective date of termination of the claimants’ contracts of employment?3.2 Were the claimants’ claims presented in time and, if not, should time be extended on a just and equitable basis? The law Direct discrimination on the grounds of race
The law
[4]Section 13 of the Equability Act 2010 provides as follows: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[5]Dealing with less favourable treatment, as per the IDS Employment Law Handbook Discrimination at Work at 15.17: “The test posed by the legislation is an objective one – the fact that a claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment… That said, the claimant’s perception of the effect of treatment upon him or her is likely to significantly influence the tribunal’s conclusion as to whether, objectively, that treatment weas less favourable.”[6]As to the issue of comparator, s.23(1) of the Equality Act 2010 provides as follows:- “23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.”[7]As per 15.18: “On the face of it, section 23(1) appears to suggest that all the circumstances relating to the case must be the same before a comparison between the claimant’s treatment and that of a comparator can be made. However, the EHRC Employment Code makes it clear that this is not the case. It expressly sates that the circumstances of the claimant and the comparator need not be identical in every way. Rather, “what matters is that the circumstances which are relevant to the [claimant’s treatment] are the same or nearly the same for the [claimant] and the comparator.” – 3.23”[8]As regards determining the reason for the treatment, and the burden of proof, as per paragraph 33.11: “As succinctly put by Her honour Judge Eady QC in Fennell v Foot Anstey LLP EAT 0290/15, “Although guidance as to how to approach the burden of proof has been provided by this and higher appellate courts all judicial authority agrees that the wording of the statute remains the touchstone”.[9]As per the case of Igen Ltd v Wong [2005] ICR 931, CA, the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out to the tribunal’s satisfaction (ie on the balance of probabilities) is the second stage engaged, where the burden then shifts to the respondent to prove – again on the balance of probabilities – that the treatment in question was “in no sense whatsoever” on the protected ground.[10]As per paragraph 33.13: “Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts.”
The evidence
[11]We were provided width a hearing bundle of 336 pages. In addition we had a copy of the claimants’ grievance dated 23 November 2020 and a further document titled “Informal letter for legal team”.[12]We had witness statements and heard evidence from: The first and second claimants Ms Frances Payne, Business Manager for the respondent Time[13]The claimants’ claim was presented on 1 April 2021. Acas was notified on 18 February 2021 and the certificate is dated 3 March 2021. Consequently any acts that took place prior to 19 November 2020 are out of time. With the possible exception of alleged treatments 11 and 12, all other alleged treatment was prior to 19 November 2020. Alleged treatments 11 and 12 are probably out of time as well but, given our findings on the merits we have not dealt with this issue definitively.
The facts
[14]Freeland House is a residential care home set in a rural location near Witney in Oxfordshire. Freeland Village does not have a shop and the nearest food shop is a co-op in Long Harborough 1 ½ miles away. Witney is 5 miles away and Oxford is 11 miles away.[15]Freeland House consists of an old house and a modern extension. For staffing purposes it was divided into 3 sections. In the “old house” there are 2 rooms on the ground floor, 12 on the middle floor and 12 on the top floor, giving a potential for 26 residents. There is a link to the modern extension. The “ground floor” and the “top floor” of the extension each had 20 rooms. During the pandemic the Lodge accommodation was not used for residents and so was available for staff use.[16]Ms Payne told us, and we accept, that there were about 16 residents in the “old house”, 12 in “ground floor new” and 20 in “top floor new” at the material time. There were therefore 48 residents in total. Ms Payne told us that there were about 100 employees at the care home, of which about 20 were British nationals (12 carers and 8 others), the remainder being European/rest of the world.[17]The claimants became aware of the potential employment at Freeland House from the second claimant’s brother who was already working there. The second claimant told us that he asked his brother about the home and the respondent, that he asked where it was located, that he had access to the internet in Romania, that he looked up the location and its position and general structure. The first claimant told us that Google Maps showed the Lodge Home and houses. Whilst the claimants asserted that the relative remoteness of the Freeland House came as a shock to them, the fact remains that they could have researched the location before accepting the job. Further, we find it inconceivable that its location and local facilities along with aspects such as pay and conditions would not have been discussed with the second claimant’s brother before applying for the job.[18]Both claimants were interviewed by Ms Payne via Skype. The documents suggest that the second claimant was interviewed on 2 September and the first claimant on 1 September although Ms Payne states both were interviewed on 8 September. It may be that there were two interviews.[19]It is clear from the notes that accommodation was discussed. The claimants had a five year old daughter who was not going to come across initially and they wanted to have rented accommodation so that she and a grandparent could join them in due course. It is accepted that the claimants were told that they could have temporary accommodation in the lodge to begin with. Ms Payne accepted that she told the claimants that she would assist them in obtaining rental accommodation. She told us that the respondent was willing to provide an advance against wages for any deposit and first months rent. The notes of interview make clear that hourly rates, holidays, accommodation and help with a bank account were all discussed. The job description was emailed to the claimants. Although we heard evidence from the second claimant mainly via an interpreter, both claimants’ witness statements were in English and they both confirmed they read and understood English well. The first claimant spoke good English and gave her evidence in English.[20]The claimants complain that during the interview Ms Payne did not tell them that the nearest food shop was one and a half miles away and did not tell them what the staff to resident ratio was when providing care. As a matter of fact Ms Payne did not give this information, telling us that she assumed the second claimant’s brother would have provided the details. Equally, the claimants did not ask about these issues in interview. The claimants have alleged all along that the home was short staffed. Consequently we deal with this issue at this stage.[21]No evidence as to any legal requirements concerning staffing levels has been placed before us. Ms Payne told us that the CQC left staffing levels at the manager’s discretion based on the residents’ dependency and that she thought 1:5/6 by day and 1:10 at night was to be expected.[22]The staffing requirement document for 2 October 2020 identifies that, for the 48 residents, a total of 202 hours of care was required for the 24 hour period. This was to be achieved by 9 careers working 12 hour shifts by day and 6 carers working 12 hour shifts by night. (The remaining hours were covered by other activities, for example social engagement by other staff and hostesses serving food).[23]The staff allocation sheet for 2 October 2020 indicates that there were 9 carers on duty by day and 6 by night In addition, the first claimant was rostered to work as training by day on “Top new wing” and the second claimant was rostered to work as training by day on “Old house”. Thus, the evidence is that there was adequate staffing as determined by the respondent on 2 October 2020 for all 48 residents both in terms of staff to resident ratio and hours available for care. We accept that the staff ratios in place no doubt presented very real challenges in the provision of care but in our judgment they were not inadequate. The staff allocation sheets for 1, 3 and 4 October 2020 also demonstrate that the required staffing levels were met.[24]The claimants have complained that they and other foreign nationals worked to a greater staff to resident ratio than British carers. In his written statement the second claimant states, “British girls had 6-residents and the rest of foreign care staff, including me, had 19 residents”. We do not accept this evidence. Firstly, Ms Payne told us, and we accept, that staff would go to help where needed in other areas. Secondly, the staff allocation sheets show that the claimants were working alongside British carers regularly. For example, on 1 October 2020 the first claimant was allocated to “Top new wing” with 2 British carers, 1 Polish carer and 1 Hungarian carer. Also on 1 October 2020 the second claimant was allocated to “Old house” with 1 Bulgarian and 2 British carers.[25]On 2 October 2020 both claimants were allocated areas working alongside at least 1 British carer.[26]On 3 and 4 October it is fair to say they were not working with British carers, but British carers were working in other areas.[27]We find that the claimants were not required to work with worse staff to resident ratios than British workers.[28]We find that the claimants were given information and details at the interview about the job, terms and conditions, working conditions and living conditions that was entirely adequate. We find that Ms Payne did not conceal any information about the home location, local facilities, staffing levels or accommodation. We would expect those issues to have been raised by the claimants in interview if they were interested and wanted more detail before committing to move from Romania and accepting the job.[29]We accept that the appropriate comparator is a British carer who had to relocate to this area. We find that the claimants were not treated less favourably than such a comparator as the comparator would have been treated in exactly the same way.[30]In any event, we find that any such treatment was not on the grounds of the claimants’ race.[31]We find that there was no failure to warn the claimants about inadequate staff to resident ratios as there was no such inadequacy.[32]The claimants were offered their jobs on 10 September 2020 and were sent various documents including the Care Assistant job description[33]The claimants arrived at Birmingham Airport on Saturday 19 September 2020 and were collected from the airport and taken to Freeland House to settle in over the weekend. The claimants told us they were required to quarantine for 14 days on arrival. Ms Payne told us she did not think that applied at that time, Whatever the position it is noticeable that the claimants went out to look at the local area on 22 September 2020.[34]On 21 September the claimants were provided with their contracts of employment and other documentation. Each signed a contract of employment which contained within it reference to the grievance procedure and referred to the employee handbook for more details. The claimants asserted that they never had the employee handbook but we have no doubt that had they requested it access to it would have been provided. In addition, both claimants signed a “Freeland House Core Values” document, a “Code of Conduct” document, an opt out from the 48 hours Maximum average working week document, a “Social Media Policy” document, a Care Assistant job description document and a “Whistleblowing Policy” document. We note that the last document sets out clearly that any concerns about harm to residents etc should be reported to a superior or manager but also recognised that there may be circumstances when reporting to an outside authority may be appropriate. The document sets out the contact details for the NHS Whistleblowing Helpline and how to contact the CQC, local safeguarding authority and Public Concern at Work. Ms Payne told us she assisted with obtaining an online bank account and temporary National Insurance numbers. The claimants disputed this. Ms Payne explained she showed the claimants the relevant government and bank websites in her office on her computer and left them to it. We prefer the evidence of Ms Payne on this issue, She clearly regularly recruited workers from abroad and so would have been very familiar with where to access this information and it was in the interests of the respondent for the claimants to have a UK bank account to be paid and a temporary National Insurance number to be taxed. On balance we find that Ms Payne did assist the claimants.[35]As far as accommodation is concerned it was always contemplated that the claimants would go into temporary accommodation on arrival. This was to be charged at £50 per week including all meals. In times of covid lockdowns there was an obvious advantage in carers living on site. The accommodation provided was in the lodge, a residential unit not being used for residents. As such it had hospital beds and communal facilities. Whilst such accommodation may not have been to everyone’s liking, and was clearly not to the claimants’ liking, multiple other foreign carers were living there on a long-term basis. It was certainly convenient and cheap. As a matter of fact the claimants were accommodated with several other workers in the lodge where the manager’s office was. They had their own bedroom but there were communal cooking and other facilities. To that extent there was a lack of privacy and it may well not have been suitable for the claimants’ five year old daughter to be brought up there. However, it was only ever provided as temporary accommodation whilst the claimants sought a suitable rental property. We do not find that it was inadequate living accommodation notwithstanding that the claimants did not like it. In any event, we find that any British comparator would have been treated in exactly the same way and consequently there was no less favourable treatment. Further, we find that such treatment was not on the grounds of the claimants’ race.[36]Ms Payne has always accepted that the claimants were told that the respondent would assist them with obtaining rental accommodation by advancing the deposit and the first months rent. Ms Payne told us that she had a good working relationship with local estate agents in Witney who would accept the respondent as a guarantor. She gave evidence that she had three properties to view and she offered to provide the claimants with the details. She stated that the claimants declined as they wanted to live in a city, namely Oxford and talked about getting a car due to public transport posing difficulties. The claimants disputed that any such assistance had been offered. We prefer the evidence of Ms Payne on this issue and find that she did seek to assist the claimants obtaining private accommodation in the Witney area.[37]The claimants endeavoured to find rental accommodation themselves in Oxford. They did so and Ms Payne spoke to the landlord about the support the respondent could provide by way of a deposit and the first months rent. Unfortunately the claimants were not offered the tenancy because, as they told us, they did not have a credit score in this country. Accordingly, we find that there was no failure to provide assistance to the claimants in obtaining private accommodation.[38]On one occasion restrictions were placed on the claimants and all other residents in their temporary accommodation. This was when visitors came to the home for an open day. There was a dispute as to the extent of the restriction. Ms Payne said it was just to use a different entrance and exit to minimise contact with outsiders for covid reasons. The claimants assert that they were told not to leave their room from 12 to 5 pm, either to stay in or out for that period. Whatever the position, we find a British comparator in the temporary accommodation would have been treated exactly the same and given the same instruction. As such, we find that this was not less favourable treatment. In any event, the reason for that treatment was to remove contact with visitors and not because of the claimants’ race.[39]While the claimants had the necessary Romanian police check on arrival, a UK DBS check needed to be undertaken before they could work with residents. Initially the claimants undertook online training. Between 23 and 30 September 2020 it appears they both passed a large number of training courses and received their certificates. Both claimants say their last day of online training was 30 September 2020.[40]The claimants assert that they then should have had two days off. We have not been told why – possibly to complete what they thought was the 14 days quarantine. The claimants did not have two days off and claimed they were effectively forced to begin work on 1 October 2020. Ms Payne says she asked them to begin work and they eagerly accepted. Ms Payne told us she did not think there were quarantine requirements at the time and that the claimants had had negative PCR tests. Further, that it was when the UK DBS checks came back that the claimants could start work.[41]We can readily see that the respondent care home would have wanted the claimants to start work as soon as they were able due to the staffing pressures in the sector. It may be that the claimants felt pressured to begin but they agreed to on 1 October 2020. The claimants were to begin by shadowing an experienced carer to learn how to use equipment such a hoists and blue sheets and to get to know the routine and the residents. On the staff allocation sheets they are referred to as training.[42]It is clear to us that there was a fundamental misunderstanding between he claimants and the respondent as to what shadowing entailed. The claimants thought it should be simple observation. The respondent indicated that it was hands on training whilst being supervised. In addition, it appears that Ms Payne only provided practical training on the hoist on the afternoon of 2 October 2020 in circumstances where the claimants had both had to use a hoist on 1 October 2020. Ms Payne told us that that should not have happened.[43]The claimants only ever worked four shifts on the 1, 2, 3 and 4 October 2020. As such, they never completed their practical training. Ms Payne’s evidence was that usually new staff would shadow for five shifts and thereafter a competency folder would be provided to record their competence as they completed more tasks satisfactorily.[44]We find that the training was adequate. We do not find that shadowing consisting of working with an experienced colleague rendered the training inadequate or in some way wrong. It may be that errors took place during the initial shift in that they had to help use a hoist before practical training or that they were left with residents on their own on some occasions. Nevertheless, we find that those errors were due to the difficulties and pressures of working in a pressured care environment and that any such training errors were just as likely to occur to any British trainee. Both claimants state expressly “…there was not used the necessary steps for safety in handling and movement, either by English workers, or foreign workers”. We find that the claimants did get a period of observation training albeit whilst working under supervision. We find that any such treatment was not on the grounds of the claimants’ race.[45]As far as quarantining is concerned we have had no evidence as to exactly what was the legal position for people arriving from Romania. However, for the purposes of this allegation we consider that an appropriate comparator would be a British national arriving from Romania. This is because different requirements may have been in force for a British national arriving from within the United Kingdom.[46]As a matter of fact the claimants did leave their room to buy food and accessed the computer to complete their online training. They also left the home looking round the area and went to Oxford. We do not have the evidence to find that the claimants were subjected to a 14 day quarantine period and what was or was not permitted. Being permitted to leave their rooms etc seems to us to be more of a benefit than a detriment. In any event, we find that any comparator would have been treated exactly the same. Further, that any such treatment was not on the grounds of the claimants’ race but was due to Ms Payne possibly not knowing of any quarantine requirements.[47]It is clear to us that both claimants had concerns about the standard of care provided over the four shifts they both worked. The second claimant refers to a culture of carers sleeping on the night shift. The first claimant refers to colleagues handling residents roughly, providing rushed and insensitive care and disregarding patient welfare. These are serious allegations and we do not make any findings as to whether or not they are made out. However, it is clear to us and we find that all carers, both British and foreign, were required to work in these circumstances and that any British comparator would have been required to work in exactly the same way. Consequently, we find that this was not less favourable treatment. In any event, we find that this treatment was not due to the claimants’ race.[48]The claimants were to be paid four weekly. However, on 30 September they requested an advance which the respondent agreed to. The claimants worked four shifts from 1 to 4 October 2020. On 5 October 2020 they chased Ms Payne for the advance and it was paid to them (approximately £400 each) on 5 October 2020.[49]At 00.13 on 7 October 2020 the first claimant emailed Ms Payne to say that they had left the temporary accommodation. The email concludes, “I will respect my shifts”.[50]It appears that later on in the morning of 7 October the claimants texted in sick. Ms Payne sent an email at 10.29 on 7 October referring to the claimants shift the next day and requesting their current address.[51]The claimants moved out of the temporary accommodation on 5 or 6 October 2020 to a hotel in London paying £30 per night. On 7 October 2020 both claimants consulted a Dr Vala in London and both were given fit notes signing them off work for “mechanical back pain” for two weeks. These were submitted to the respondent and the claimants were paid statutory sick pay.[52]It is clear to us that some form of emergency problem arose as regards the claimants’ daughter in Romania at this time. The claimants told us they booked flights back to Romania on about 19 October 2020. On 21 October 2020 the claimants consulted Dr Vala again who signed them not fit for work for a further two weeks, expiring on 4 November 2020.[53]During the course of this hearing it was revealed that the claimants flew back to Romania on 22 October 2020.[54]On 19 October 2020 the first claimant incorporated a UK company Pixira Media Limited. Both claimants state in their claim form that they began working for this company on 6 December 2020.[55]On 2 November 2020 Ms Payne emailed the claimants pointing out that their fit notes expired on 4 November 2020 and invited them to a ‘back to work’ interview at 16.30 on 4 November 2020. She did not know at the time that the claimants were, of course, still in Romania.[56]At 04.10 hours on 4 November 2020 the second claimant emailed Ms Payne to say they would not be attending the meeting and requested two weeks off, unpaid, until 18 November 2020.[57]Ms Payne refused the request and indicated that she expected the claimants to work from 5 November 2020.[58]At 13.21 on 4 November 2020 the claimants sent a long email to Ms Payne. This was a long list of complaints and criticisms about conditions and management at the home broadly similar to the complaints made in this case. The email refers to the claimants saying all of their complaints in the presence of a lawyer but goes on to reiterate their request for unpaid time off. It is notable that this email does not complain of race discrimination at all and appears to us to be in the context of securing agreement to taking time off.[59]Ms Payne responded by passing the email to the respondent’s HR/Legal Team and stating that the claimants could forward their lawyer’s name to be given to HR if they wanted.[60]At some point between 4 and 23 November 2020 the claimants consulted Acas and, as a result, the claimants submitted a formal grievance on 23 November 2020. This is three and a half pages long. It starts by referring to the 4 November 2020 email and complains of not having a reply. It begins: “Our main problem is physical and mental damages for not using the proper work safe environment, at Freeland Home Care.”[61]The claimants complaints are set out at length. The word “discrimination” is used twice towards the end. The context is as follows:- “The level of mental manipulation is like slavery, lies on the face, and money domination, and discrimination to the lack of power to speak for foreign staff. The lack of protecting human rights, and if other staff care assistants comply with them by ignoring the safety measures for wellbeing to humans, we cannot.” And “We believe, by Frances’ reaction to our last email, that this situation is taking place for a long time, and you as a HR know or not know about it but, through discrimination, you bring FOREIGN workers just to save money, ignoring that there is about people, the residents and the staff.”[62]The claimants’ complaints of discrimination are general and on behalf of foreign workers. They do not allege specific race discrimination as far as the claimants are concerned. In fact, we find, that all carers, British and foreign, had the same rates of pay, hours available to work, working conditions etc and that there was no such distinction on the grounds of race.[63]We note that the grievance ends as follows: “As a short recap, we cannot continue working with your company, and we want compensation for our entire six months contract.”[64]In our judgment, this statement constitutes an unequivocal resignation by the claimants and accordingly we find that the effective date of termination of their contracts of employments was 23 November 2020.[65]Thereafter the respondent dealt with the grievance. On 15 December there was a grievance meeting by Skype. The claimants were notified of the outcome by letter dated 23 December 2020. Most grievances were rejected but some minor ones were accepted relating to moving and handling.[66]On 26 January 2021 the claimants appealed and the appeal was rejected on 24 February 2021.[67]Ms Payne gave evidence that the reason that the claimants heard nothing between 4 and 23 November 2020 was that she was expecting to receive the name of a lawyer to link in and that the matters raised took time to deal with. We find that the claimants’ initial complaint on 4 November was not ignored. It was acknowledged, forwarded to HR and an enquiry made as to the claimants’ lawyer’s name. Further, we find that requiring the claimants’ lawyer’s name was not “fobbing them off” and was a reasonable request.[68]As a matter of fact, the respondent did not expressly tell the claimants how they could or should make a formal grievance complaint. However, the grievance process was set out in the contract of employment so the claimants were or should have been aware of it and could have accessed the employee handbook if they had requested it. We find that it is not incumbent on an employer to do more.[69]We find that any comparator would have been treated in exactly the same way and this does not constitute less favourable treatment. In any event, we find that any such treatment was not due to the claimants’ race.[70]Whilst the respondent did not offer the claimants alternative accommodation in the local area, the respondent was under no legal or moral duty to do so and, as we have found, the respondent did seek to assist the claimants obtain alternative accommodation in the Witney area. The claimants did not want local accommodation anyway. A comparator would have ben treated exactly the same. Further, any such treatment was not on the grounds of the claimants’ race.
Conclusion
[71]We find that the effective date of termination was 23 November 2020.[72]Our findings as to the alleged treatment are as set out above.[73]We find that all such treatment as we have found was not less favourable treatment as a British comparator would have been treated in exactly the same way in each case.[74]In any event, we find that none of the treatment was because of the claimants’ race.[75]Due to our conclusions on the merits, we have not dealt with the time points.[76]For the above reasons the claimants’ claims are dismissed.