Mr C Kpiinmogle v Bridge of Weir Care Home Ltd: 4100745/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100745/2025Venue GlasgowHearing 15, 16 and 17 September 2025; 15 and 16 January 2026
Between
Mr Chrisantus KpiinmogleClaimantBridge of Weir Care Home LimitedRespondent
Before
Employment Judge S CowenMr B Mitchell for respondentHR Manager for respondentDate 23 February 2026
JUDGMENT
[1]The Claimant’s claims of race discrimination and unauthorised deduction from wages are dismissed.[2]The Claimant’s claim of failure to provide a written statement of terms and conditions succeeds and the Respondent must pay the Claimant £1,958.[3]The Claimant’s claim of unpaid holiday pay succeeds and the Respondent must pay the Claimant £1,370.60[4]The Claimant’s claim for wrongful dismissal succeeds and the Respondent must pay the Claimant £979.[5]The total amount to be paid by the Respondent to the Claimant is £4,307.60
REASONS
[1]The Claimant represented himself, whilst the Respondent’s HR manager represented the company. A bundle of productions was provided by the Respondent. The Claimant also provided a bundle of productions, some of which were the same and some different to the Respondent’s.[2]The Tribunal was unable to complete the hearing in the three days initially allocated and the case was continued to January 2026. The Tribunal has reminded itself of the evidence heard in September 2025, as well as that heard in January 2026.[3]The issues to be decided were set out in the Case Management Order dated 20 June 2025 and both parties were taken to the list and reminded of it as the guide to the decisions to be taken by the Tribunal.[4]The issues in this case were;a. Wrongful dismissal – the Claimant asserts that he was entitled to 1 weeks’ notice of the termination of his employment, which he did not receive.b. Failure to pay holiday pay – the Claimant asserts that he did not take any holidays during his employment with the respondent, and was entitled to payment in respect of the holidays which he accrued throughout his employment with the respondent, on the termination of his employment.c. Unauthorised deductions from wages – the Claimant asserts that the gross sum of £2,447.50 was deducted from his wages in December 2024/January 2025. This is in respect of 7.5 days pay promised to him, as well as in respect of 27.5 hours worked in December 2024, but not paid (at a rate of £33.25 per hour).d. Failure to provide a written statement of terms and conditions.e. Direct race discrimination in relation to the fabrication of documents which were relied upon as the basis for the Claimant’s dismissal and the forgery of his signature within those documents. He also asserts that his dismissal was an act of direct race discrimination.
The facts
[5]This Tribunal decision on the facts does not encompass all the facts which were in dispute in the case. What is set out below is the Tribunal decision on the facts which were relevant to the issues in the case.[6]The Claimant applied for a job as a registered nurse at the Respondent’s care home. He was interviewed by Ms McCluckie, the home manager, on 20 July 2024, in person. Ms McCluckie was impressed with the Claimant and offered him a position as a nurse for 44 hours per week. The Respondent understood that the Claimant was a fully qualified nurse with 7 years’ experience before he came to the UK. The Claimant referred to himself in his evidence as ‘newly qualified’.[7]The Claimant was not provided with any written terms and conditions. The Respondent provided to the Tribunal a letter which was undated and unsigned and therefore there was no evidence to support the contention that the Claimant was provided with the terms and conditions of his employment.[8]The Claimant agreed to work 4 shifts per week for 11 hours per shift. He understood that he was subject to a probation period of 6 months. The Respondent allocated sponsorship for 3 years to the Claimant and issued him with a certificate of sponsorship on 20 August 2024. The Claimant failed to use this to apply for an altered visa, before he commenced work with the Respondent.[9]The Claimant was entitled to 4/5 of the annual holiday entitlement of 28 days, providing him with the entitlement to 22.4 days per annum. As he commenced work in October and the holiday year ran from January to December, he was entitled to a pro rata proportion of the year in 2024.[10]The Claimant was also entitled, as was custom and practice in the Respondent to double pay for working on Christmas Day and x1.5 pay for working on Boxing Day, which he did in 2024.[11]The Claimant attended on 6 September 2024 for induction with the Respondent, attending at the care home and at the head office for part of the day. Some of the induction points were covered by the care home manager Ms McCluckie. However, it transpired that the Claimant had not yet resigned from his previous employment and was not able to work for the Respondent for more than 20 hours per week. She told him to hand in his resignation at his previous employer and then return to them.[12]As a result of this, the Claimant was told by Rachel McCreath, the deputy manager, that he needed to supply the Respondent with evidence of his new visa, his resignation from his previous job and a letter showing intent to be committed to the Respondent, before he could continue to work for the Respondent The Claimant failed to respond to this.[13]On 8 October Ms McCreath wrote an email to the Claimant saying that she had tried to contact him on 25 or 26 September and on 3 or 4 October and she had left voicemail messages for him, but received no reply. The email concluded with “Please resend the information I have requested and I will discuss with the home manager, but at this moment, your job offer and sponsorship have been withdrawn”.[14]The Claimant did respond to this email and provided the details which the Respondent required. He was therefore given a start date of 10 October. At the time of his employment the Claimant was the only nurse who identified as Black. The Respondent’s workforce was multi-nationality and multi-ethnic.[15]There was little in the way of formal training with the Respondent. There was no record of any such training provided to the Claimant, nor to the Tribunal. The Respondent considered that it was the duty of the Claimant to point out any training he required. However, there was no evidence that even where the Claimant did point this out, he was provided with any training. A further part of the induction was completed, but the claimant was essentially told to work with others and watch what they did. A form indicating completion of various induction tasks was completed by Ms McCluckie, the home manager. This was little more than a checklist to ensure that the Claimant had been shown various systems and features of the home.[16]There was no formal instruction manual given to the Claimant. No written outline of his duties, or the use of systems at the Respondent. There was no suggestion that he was provided with copies of policies or procedures. The Claimant picked up the computer systems quite quickly and was able to use them. However, he did not receive formal training in this, other than by Ms McCreath showing him how to add or delete drugs from the medicine records. When necessary, the Claimant knew he could ask others to assist or to show him how to do things. Both Ms McCluckie and Mrs Cole, the Clinical Lead, were open and helpful to all staff.[17]The Respondent did not operate a formal probation process. Whilst there were probation reviews, it was not made clear to the Claimant when these would occur, or what they would address. The meetings happened as and when there was something to discuss. The Claimant therefore did not feel that he had a mentor, support or structured guidance about his progress in the job and there did not appear to be any formal structure by which this was provided. What was explained to him was that he would have to complete a 6 month probationary period.[18]The Claimant underwent medication competency assessments on 11 and 16 October. He passed these. He also underwent a further assessment on 5 November 2024 and again on 20 November 2024. This is an assessment which usually occurs on an annual or 3 yearly basis. On each occasion the Claimant showed that he was able to administer and record medication appropriately.[19]On 1 November 2024 the Claimant was spoken to by the deputy manager and given some coaching, due to having dispensed medication to a resident who was not supposed to have the medication. It was to be stored at the home as a ‘rescue pack’. Instead the Claimant had given the resident an antibiotic and then asked Mrs Cole for assistance to add to the medication to the EMOR system. This was inappropriate and unnecessary and was considered to be a mistake.[20]On 2 November 2024 the Claimant wrote a reflective account of the incident with the rescue pack which had occurred. He stated that he had learnt never to start medication that is not on the system without confirmation from a clinical lead.[21]On 8 November 2024 the Claimant was called into a meeting with the deputy home manager, Ms McCluckie, due to the fact that he had failed to commence a syringe drive as instructed by the Advanced Nurse Practitioner. Although the Claimant did not know how to do this, he did not make this clear to any of the other nurses, or managers in the home. He went for a break instead of asking others to assist. He therefore delayed a patient receiving pain medication and other end of life medications. He also failed to provide a bolus dose of morphine to the same patient and failed to ask another approved medication staff to witness or assist with this, until Ms McCreath herself helped the Claimant to give this medication. The Respondent alleged that there had been a delay of 1 hour since this was prescribed and 2 hours for the syringe driver.[22]Ms McCreath also asserted that there had been an issue when a controlled drug had been administered without a second signature. The Claimant had asked her to countersign, but instead of having her witness him providing the drug, he said that another colleague, Sam, had seen him do it. Ms McCreath discovered this was untrue and was very upset with the Claimant, saying that he was putting her registration as a nurse at risk, by asking her to countersign something that had not in fact been witnessed by another person.[23]As a result of these incidents Ms McCreath spoke to the Claimant on 8 November and told him that his probation was unsuccessful and that his employment was terminated. She handed him a letter and told him to read it once he was home. Unfortunately, the Claimant dropped the letter on the way home and was therefore not clear about the reasons for his dismissal. He tried to contact Ms McCluckie the manager, but she was on holiday that day.[24]The Claimant was very upset about his dismissal over the weekend and wanted to try to rectify the position. He therefore returned to the home on Monday 11 November 2024 to speak to Ms McCluckie, the manager.[25]During a meeting with Ms McCluckie, the Claimant was very distressed. He sank to his knees, was crying and upset, took hold of Ms McCluckie’s ankles and told her that he was “a poor black man” who supported a village at home with his salary. The manager read him the termination letter and he remonstrated with her about the parts he felt were not true in relation to the dispensing of morphine. The Claimant pointed out that the deputy manager had poured out oramorph into a cup. He also pointed out that the deputy manager had been present when he had administered the oramorph. He also told them that he had asked others to show him how to use the computer system to record the dispensing.[26]Ms McCluckie spoke to Mrs Cole and Ms McCreath and concluded that the Claimant should be given another chance to prove himself. She wanted to ensure that the correct training and supervision was provided to the Claimant, so she could be sure that they had done all they could to support the Claimant. It was for this reason that a third medication competency assessment was carried out. The Claimant passed this.[27]Ms McCluckie allowed the Claimant to return to work the next day, telling him it was his last chance and that he must ask for help where he needed it. Ms McCluckie remained concerned that the Claimant did not listen carefully and had a tendency to talk over people. The Claimant was upset during the meeting, but did sign the record of the conversation and knew that he had been given his job back.[28]On 25 November Ms McCluckie had cause to speak to the Claimant again, as she had received complaints from relatives of residents. These were about the Claimant refusing to refer a resident to the Advanced Nurse Practitioner, when asked to do so by a relative and then lying about it. Also that he walked away from the relative who was trying to speak to him about getting help for their parent. The final issue was that the relative reported having seen the Claimant with a tray of small pots with medications labelled for various residents. This was not an appropriate practice.[29]Ms McCluckie therefore spoke to the Claimant about these behaviours and told him that he must follow the fail safe medication policy, i.e. to ensure that the patient was able to take the medication before dispensing it and not to ‘pot’ all mediations before distributing.[30]The Claimant denied that this was his practice, except when the patient was not co-operating and the nurse wanted to return to the patient to try to encourage them to take their medication once they had calmed down. Whilst it may be appropriate practice to return to a patient, it was not appropriate to leave the medication on a tray with the patient’s name on it.[31]The Claimant was spoken to about these incidents. No formal notes were taken in the meetings, but a record was written up by the relevant manager after the meeting and was placed on his file. The meetings did occur, although the Claimant may not have realised at the time that a record of the conversation was going to be made. The Claimant asserted that he had not done anything wrong and that the relative was acting in a racially discriminatory manner.[32]The Respondent also took notes of other conversations with the Claimant in which issues with his practice were challenged. These were not highlighted to the Claimant as being part of any formal probation or performance process. He was also unaware that a record was being kept of any of these conversations and did not remember that such direction or challenge had been made to him. Ms McCluckie told the Claimant that if he continued to have issues with medication administration they would not be able to continue with his employment. This was not said in any formal way, but the Claimant was aware of her views.[33]In January 2025 a further incident was recorded where the Team Leader reprimanded both the Claimant and a care assistant, where the Claimant had given a resident a food which was not pureed, as her care plan required. This could have resulted in the resident choking. The team leader used the same record of conversation to record this on the personnel file of the Claimant and the care assistant, although they are separately regulated. This remained a valid record of what happened.[34]Further complaints were raised in January, including that the Claimant had used the ‘potting’ method to dispense medications. It was also noted that the Claimant had agreed to replace one medication with another, at the request of a relative, without it being a prescribed medication.[35]Ms McCreath asked the Claimant to come to the office on 13 January 2025. She was of the view that the Claimant understood the accepted RCN procedures for drug dispensing, as he had been assessed in the medication reviews as being competent, but that he failed to adhere to them. She considered that instead of reflecting on his behaviour and accepting his mistakes, the Claimant blamed others, such as suggesting that the relatives were racist. At that meeting, she made it clear to the Claimant that his actions amounted to a failure of his probation period. At the point where the Claimant believed that his job would be terminated, he again fell to his knees, crying and told her he was a “poor black man”.[36]The documentary evidence of complaints from relatives and the Advanced Nurse Practitioner was collected after the dismissal to reflect conversations which they had had with Ms McCluckie.[37]When the Claimant went to Head Office to complain about his dismissal, he was told by HR Manager Mr Mitchell to appeal his dismissal. The Claimant initially sent his appeal to the wrong email address. At the appeal hearing he was represented by his trade union official. The Claimant asserted that the notes of the appeal were not valid and were never sent to him. The Claimant also asserted that the documentary evidence relied upon by Mrs McKenzie in the appeal was fabricated, on the basis that he had not seen them before.[38]An outcome letter dated 10 February 2025 was sent to the Claimant by Mrs McKenzie, the regional manager who undertook the appeal. Mrs McKenzie had been consulted by Ms McCluckie before the decision to dismiss was taken.[39]An appeal hearing was conducted at which the Claimant and his representative were given an opportunity to outline their points. Mrs McKenzie considered their points, but concluded that dismissal was the appropriate outcome and that an appropriate process had been followed, as the Claimant remained in his probation period.[40]When the Claimant was dismissed, he had not taken his holiday in 2024. Having started in October 2024, he was entitled to the pro rata number of days remaining for that year. As someone who worked 4 shifts per week, he was entitled to 22.4 days per annum, this meant between 9 October and end of December, the Claimant was entitled to 5.6 days.[41]The Claimant was dismissed on 13 January 2025, including pay in lieu of notice and holiday which had accrued but was untaken. He was paid 22 hours in holiday pay (that is 2 days’ pay). He was also paid for 148.5 hours of work between December and January, which is 13.5 days.[42]The Respondent’s record shows that from 25 December to 13 January, the Claimant worked on 12 days, including Christmas Day and Boxing Day.[43]The parties disputed whether the record provided to the Tribunal was accurate in its reflection of the Claimant’s work and/or annual leave record. No computer based records were provided to the Tribunal, although the Claimant’s evidence was that such records were made. The law Direct discrimination
The law
[44]Section 13 of the Equality Act provides that: (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.[45]Section 23 of the Equality Act goes on to provide that: (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.[46]In the House of Lords decision of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] IRLR 285, ICR 337, it was held by Lord Scott that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim save that he, or she, is not a member of the protected class”.[47]The test which the Tribunal applies, as to whether there has been less favourable treatment is an objective one: the claimant’s belief that there has been less favourable treatment is insufficient. Likewise, the treatment must be less favourable, not merely different. Unreasonable treatment is not sufficient, although it may be evidence which supports an inference if there is no adequate explanation for the behaviour (Anya v University of Oxford and anor 2001 ICR 847, CA).[48]Where there is less favourable treatment, the key question to be answered is why the claimant received less favourable treatment: was it on grounds of race or for some other reason (London Borough of Islington v Ladele [2009] ICR 387). As Mr Justice Linden said in Gould v St John’s Downshire Hill 2021 ICR 1, EAT “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective…For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision…[and] the influence of the protected characteristic may be conscious or subconscious.”[49]In Nagarajan v London Regional Transport 1999 ICR 877, HL, Lord Nichols said that “discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds…had a significant influence on the outcome, discrimination is made out”[50]Often there will be no clear direct evidence of discrimination on racial grounds and the Tribunal will have to explore the mental processes of the alleged discriminator and draw inferences. The claimant will need to prove facts from which a Tribunal could properly conclude that the respondent had committed an unlawful act of discrimination, and this can include the drawing of inferences (see burden of proof section below). However, simply establishing a difference in status is insufficient: there must be “something more” (Madarassy v Nomura International plc [2007 EWCA Civ 33 and Igen Ltd v Wong [2005 ICR 931]). Likewise, unreasonable conduct alone is insufficient to infer discrimination. 51. Burden of proof[52]Section 136 of the Equality Act (burden of proof) states that: (1) This section applies to any proceedings relating to a contravention of this Act. 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.[53]Put simply, the claimant must show facts from which the Tribunal could infer that discrimination took place, in the absence of other explanation. If the claimant cannot do that, the claim fails. If the claimant does show such facts, then the burden shifts to the respondent to show that discrimination did not take place (Igen v Wong, Royal Mail Group v Efobi [2021] UKSC 33). In deciding whether the burden has shifted, the Tribunal should consider all of the factual evidence provided by both parties (although not the explanation for those facts).[54]In Madarrassy v Nomura International [2007] ICR 867 CA, Mummery LJ stated that “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.”[55]Something more than a finding of less favourable treatment is required in order to shift the burden of proof to the respondent, however the “something” need not be considerable (Deman v Commission for Equality and Human Rights and others [2010] EWCA Civ 1276). Unreasonable behaviour alone is not evidence of discrimination (Bahl v The Law Society [2004] IRLR 799) but can be relevant to considering what inferences can be drawn (Anya v University of Oxford & anor [2001] ICR 847)[56]Where the burden has shifted to the respondent, it is then for the respondent to prove on the balance of probabilities that the less favourable treatment was not because of race.[57]Although the burden of proof is a two stage test, there are cases where an Employment Tribunal can legitimately proceed directly to the second stage of the test (see, for example, Laing v Manchester City Council and anor 2006 ICR 1519, EAT). Statement of terms[58]S.1 ERA sets out that the employee has the write to a written statement of the basic terms of his employment, from day 1 of his contract. If this is not provided by the employer, the Claimant is entitled to ask the Tribunal to identify the terms and declare them and to provide 2 weeks of gross earnings, as compensation. S.13 ERA – unauthorised deduction of wages[59]Unauthorised deduction of wages under. S.13 ERA occurs where the Claimant is entitled to the wages, but has not been paid. The burden is on the Claimant to show that the wages are owed. Wrongful Dismissal[60]Wrongful dismissal occurs where the Claimant has been dismissed in breach of the terms of his contract of employment. The compensation for this is to place the Claimant in the position he would have been in had no breach occurred, i.e. that he had been dismissed in accordance with the terms of the contract. In this case, the Claimant asserts that he was entitled to a period of notice. Holiday pay[61]Failure to pay holiday pay which has accrued and remains owing at the time of dismissal. The Working Time Regulations 1998 provide a minimum entitlement to paid leave of 5.6 weeks per annum. His entitlement to be paid on termination arises from s.14(3)(b). Evaluation of evidence[62]The Claimant asserted, repeatedly, that the Respondent’s witnesses lied in their evidence and had been complicit in the fabrication of documents and forgery of the Claimant’s signature on some meeting records. He had no evidence to support these assertions. He did not name who he accused of fabricating the documents, nor did he say who had forged his signature. The Claimant’s own evidence did not deny that any of the events contained in the documents had not occurred, only that the meetings and the documents were fabricated.[63]The Claimant also changed and exaggerated his evidence during the hearing. In cross examination of Ms McCluckie the Claimant asserted for the first time that there had been no face to face job interview and that he had been interviewed over the telephone. He had not mentioned this in his own evidence.[64]Furthermore, in his cross examination of the Respondent’s witnesses and closing submission the Claimant asserted that he had not been party to any of the record of conversation meetings. Suggesting that none of these meetings had taken place. The Tribunal considered this assertion to be unbelievable, as he had previously given evidence of his responses to Ms McCreath and Ms McCluckie in those meetings. These two positions by the Claimant are directly contradictory and one of them must therefore be untrue.[65]The Claimant also repeatedly told the Tribunal that he was a newly qualified nurse. However, he did not contradict Ms McCluckie’s evidence that he had 7 years of qualified nursing experience in his own country prior to coming to the UK. His assertion that he therefore required closer/longer supervision and greater training due to his lack of experience did not reflect his job history.[66]The Tribunal considered, on this basis of this and other evidence submitted in his own evidence and contradicted in his cross examination questions, that the Claimant was an unreliable witness, who altered his position as the hearing progressed.[67]In contrast, the Respondent’s witnesses were open and honest witnesses, who conceded errors where they had been made, or where they could not recollect. Ms McCluckie’s concession that she gets mixed up with numbers and therefore may have written dates incorrectly, was a significant concession. Her observation that the Claimant talked over people and did not listen was consistent with the behaviour of the Claimant in the Tribunal on numerous occasions where his follow up question indicated that he had not taken on board the witnesses’ previous answer.[68]Likewise Mrs McKenzie’s concession that there was another regional manager who may have been available to undertake the appeal, was also significant.[69]The Claimant was not provided with a document containing his written terms and conditions at the start of his employment. There was no evidence that the document which the Respondent placed in the bundle was ever given to the Claimant. Even if it did, the letter was not fully completed and therefore key terms such as holidays were missing.[70]The Tribunal therefore declared the terms as required to resolve the other allegations in this claim and awarded the Claimant 2 weeks of gross wages = 88 x £22.25= £1,958. Direct race discrimination[71]The Claimant asserted that the documents recording his errors at work between 1 November 2024 and 5 December 2024 were fabricated and that the signature on the pages which was said to be his, was forged. The Claimant asserted that this forgery had been carried out as an act of race discrimination.[72]The Claimant was not able to provide any evidence to support his assertion that these documents were forged. He admitted that the incidents to which they referred did occur and that he had had conversations with Ms McCreath, Ms McCluckie and a Team Lead, where he had given his version of events. However, he did not consider these to be conversations which were recorded.[73]The Claimant accepted that the Record of Conversation dated 1 November 2024 (p224) contained his true signature. The Claimant provided no explanation or evidence of who it was that he asserted had forged his signature, or fabricated the documents.[74]The Tribunal accepted the evidence of Ms McCreath that she was present on 11 November when Ms McCluckie conducted a meeting with the Claimant. She noted that the Claimant was upset in the meeting, which I considered was consistent with his reported behaviour in other meetings, and could have accounted for the Claimant’s lack of memory of signing the document at the time.[75]Similarly, the document signed on 25 November with regard to one of the incidents, which was also conducted by Ms McCluckie. The Claimant did not identify who fabricated the document, who forged his signature, or why they would have done so.[76]The records of conversations on 7 January 2025 and 15 January 2025 did not purport to be signed by the Claimant and therefore there was no evidence to support the assertion that his signature had been forged. This was an example of an exaggeration and sweeping assertion, of which the Claimant made many.[77]The Tribunal accepted that each of these conversations did occur and that the Claimant had either forgotten, or was choosing not to accept that they occurred. The Tribunal accepted the evidence of the Respondent’s witnesses that the notes were taken either during or at the end of the meeting, or shortly after the dismissal with regard to the 15 January 2025 note. These were made in order to maintain a contemporaneous record of the conversations which had taken place.[78]On the basis that the Tribunal found no evidence to support the factual matrix of this allegation, the claim was dismissed.[79]If for any reason I am wrong about that, I found no link between these documents being created as records of conversations which there was evidence to support, and the Claimant’s race. The Claimant did not point to anything other than his assertion that these records were false and that he was Black. The Claimant went as far as suggesting that the racist attitude of the management went all the way back to the point where he was recruited. The Tribunal did not accept that submission, on the basis that there was no evidential basis to support that assertion. Objectively, the Respondent did not have to employ the Claimant, but chose to do so, without any consideration of his race. There was nothing from which I could infer that any of the treatment of the Claimant was due to his race.[80]The second allegation of direct race discrimination was that his dismissal was an act of race discrimination. This expanded during the hearing to encompass two separate dismissals. Firstly on 8 November 2024, when Ms McCreath dismissed the Claimant from his probationary period due to problems with providing medication and failing to set up a syringe driver.[81]I make the point here that this was an allegation of race discrimination. The Claimant took up much of his time in the January hearing talking about the ACAS code of practice and the fact that a fair investigation or process had not been applied to his dismissal. The Tribunal was not considering a claim of unfair dismissal. The dismissal of a person due to race discrimination is not proved by a lack of following the ACAS code. It is the reason why he was dismissed which is the key point for the consideration of the Tribunal, and one which the Claimant failed to put to the Respondent’s witnesses in cross examination.[82]The evidence indicated that the Claimant accepted that he had not set up the syringe driver, although he said it was he who asked the ANP to do it. This was not accepted by the Tribunal as this was a task which would come within the remit of the nurse on duty. The Claimant had failed to carry out the task allocated to him and failed to alert anyone to the fact that he didn’t know how to do it. This left a resident who was close to the end of life in pain and stress. The Tribunal’s objective view was that in those circumstances, any nurse who had not carried out the order would have been treated in the same way. There was nothing which the Claimant had raised which linked the dismissal with his race other than a direct comment about being a ‘poor black man’. The Tribunal considered that this was a phrase used by the Claimant himself, on more than one occasion and recorded by the manager contemporaneously. This was not a phrase used by the manager or deputy manager in their meetings with the Claimant. His action of dropping to his knees and holding the ankles of Ms McCluckie made it unlucky that she, or Ms McCreath were fabricating this event.[83]This was not an act of discrimination as the Claimant was not treated less favourably than any other nurse in that situation. The Claimant had not named a direct comparator and therefore a hypothetical was considered.[84]With regard to the final dismissal, the Claimant had been found to have once again failed to safely administer drugs. The Tribunal accepted Ms McCluckie’s evidence that the overarching requirement was one of patient safety and that this, together with the support and assessment given to the Claimant, indicated that he was not safe to continue to work in the home. This had been a repeated issue throughout the employment. The evidence of the Respondent manager was accepted; despite all the checks and support given to the Claimant, he was not adhering to the rules of practice.[85]The Tribunal concluded that the decision to dismiss was based on the complaints from relatives who had witnessed events and from the staff who had also witnessed the Claimant fail to carry out his role. This failure was not connected to any aspect of race, as the Respondent had accepted that the Claimant was clearly able to carry out the role, but chose not to do so on occasion. Any other nurse in that position would have been failed in their probation. Ms McCluckie had given the Claimant numerous opportunities to prove himself and improve his behaviour and he had failed to take them. She was therefore entitled to bring his probation to an end. There was no reason to consider that this decision was in any way connected to the Claimant’s race.[86]The claims for race discrimination were therefore dismissed.[87]Wrongful dismissal – the Claimant asserted that he was entitled to 1 weeks’ notice of his dismissal, which he did not receive. The Claimant’s dismissal letter says that his payment includes one week of pay in lieu of notice up to 13 January 2025. He was paid for 13.5 days work in his last payslip. This would account for 25 December to 13 January (12 working days), plus 1.5 extra days’ payment for Christmas and Boxing Day. The Claimant was not therefore given any payment for a notice period.[88]On the basis that the parties agreed that the contract entitled the Claimant to one week of notice, the Tribunal concluded that the Respondent was in breach of that contract by not making the payment to the Claimant. The Respondent must pay the Claimant 44 x £22.25 = £979[89]With regard to the holiday pay claim, the Claimant provided no documentary evidence at all in relation to what he was owed at the time of his dismissal. The January 2025 payslip indicated that the Claimant was paid 22 hours of holiday, i.e 2 days. The Claimant would have accrued 1.9 days per complete month of employment. The payment of 2 days of holiday at the time of termination was therefore more than the Claimant had accrued.[90]In relation to the previous year, the Claimant asserted that he had not taken any holiday, and therefore ought to have been paid these on termination. There are no written terms to support this arrangement. In the 3 months the Claimant worked in 2024, he would have accrued 5.6 days. This does not appear to have been paid in the December payslip. However, there is no record of holiday accrued or taken, which is not satisfactory record keeping by the Respondent, who ought to be able to account for annual leave under the Working Time Regulations. The handwritten list of dates worked which was provided by the Respondent did not indicate that any annual leave was taken by the Claimant in 2024.[91]The evidence therefore suggested that the Claimant was correct to assert that he had accrued 5.6 days which he had neither taken as holiday, nor been paid for on termination. The Tribunal therefore awarded 61.6 hours x £22.25 = £1,370.60 in holiday pay[92]The Claimant asserted that he was owed £2,447.50 in unpaid wages over December 2024/January 2025. The Claimant produced no documentary evidence in relation to this amount. His calculation was not at all clear and given my view of the payslips which I have set out above, I concluded that he was paid for all the days listed on the handwritten list of dates. The Claimant has not controverted that list during the hearing, nor produced any alternative record. The Tribunal did not see or hear any evidence which supported this claim and therefore declined to award any further wages.