Mrs G K Somanje v Morar North Berwick Ltd T/a North Berwick Care Home: 4102746/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102746/2024
Between
Mrs G K SomanjeClaimantMorar North Berwick Ltd T/a North Berwick Care HomeRespondent
Before
Employment Judge J G d’InvernoMs Mwanza, lay (instructed by Representative) for claimantMs Kelly, authorised for respondentHR Officer for respondentETZ4(WR) for respondentDate 11 April 2025
JUDGMENT
The unanimous judgment of the Tribunal is that: The claimant’s complaints of direct race discrimination do not succeed and are dismissed. The claimant’s complaints of harassment related to race succeed. The respondent is ordered to pay the claimant the sum of £5,645.48, including interest, by way of compensation for injury to feelings. The claimant’s complaint of breach of contract is dismissed, following withdrawal by the claimant.
REASONS
[1]The claimant presented complaints of direct race discrimination, harassment related to race and breach of contract. The respondent resisted the complaints.[2]The parties lodged separate bundles of documents for the final hearing, extending to 1427 and 649 pages respectively. A further 3 documents were added during the hearing.[3]The claimant gave evidence on her own behalf. She did not call any further witnesses. The respondent led evidence from: 3.1. Katrina McGrandles (KM), Regional Manager; 3.2. Laura McFadyen (LMcF), Quality Manager; 3.3. Julie Harkness (JH), Quality Director; 3.4. Elaine Rankin (ER), Operations Director (North); 3.5. Linda Meston (LM), Managing Director; and 3.6. Paul Houldey (PH), Operations Director (South).[4]Other individuals referenced in this Judgment are: 4.1. Brian Mitchell (BM), Group HR Manager; and 4.2. Christopher O’Brien (COB), Director of the respondent. Issues to be Determined[5]The issues to be determined were discussed in detail at the start of the hearing, with reference to the summary of complaints set out by Employment Judge d’Inverno in the note prepared following the third preliminary hearing. It was agreed that the issues set out below would require to be determined. Direct Discrimination – s13 EqA[6]Did the respondent subject the claimant to less favourable treatment (i.e. did the respondent treat the claimant less favourably than it treated, or would have treated others, (‘comparators’) in not materially different circumstances) by: 6.1. Placing her on a PIP on 1 June 2023; 6.2. Subjecting her to a disciplinary investigation; and/or 6.3. Dismissing her.[7]If so, was this because of race? Harassment – s26(1) EqA[8]Did the respondent engage in the following conduct: 8.1. C2 stating to the claimant’s colleague, C1, on 14 July 2023, ‘people like you don’t make decisions around here’ and ‘shut your black mouth’; and/or 8.2. The respondent failing to take action when this was reported.[9]If so, was it unwanted conduct?[10]If so, was it related to race?[11]If so, did the conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?
Remedy
[12]If the claimant establishes any of her complaints, what remedy is she entitled to? Specifically: 12.1. What financial losses has the discrimination/harassment caused the claimant? 12.2. What injury to feelings has the discrimination/harassment caused the claimant and how much compensation should be awarded for that? 12.3. Is it appropriate to adjust any award due to unreasonable failure to follow the Acas Code?[13]It was noted that the claimant no longer insisted on her complaint of breach of contract and that she was seeking compensation only, not a recommendation.[14]In the course of the hearing, at the end of the third day, the respondent raised a jurisdictional issue, of which notice had not previously been given, namely that the complaint of direct discrimination, in respect of the PIP, had been lodged out of time. They confirmed that they intended to make a submission that that complaint should be rejected as having been lodged out of time. Findings in Fact[15]This Judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues which the Tribunal must consider in order to decide if the complaints made succeed or fail. If a particular point is not mentioned, it does not mean that it has been overlooked, it simply means that it is not relevant to the issues. The relevant facts, which the Tribunal found to be admitted or proven, are set out below.
Background
[16]The claimant is an experienced nurse and Care Home Manager. She qualified as a nurse in 1991. She has a Master’s Degree in Advance Nursing Practice and has worked as a Care Home Manager since 2018. She is black and Zambian. She has lived in the UK since 2002.[17]The respondent operates a care home in North Berwick. It is part of a group of companies, each of which operate a care home, and are subsidiaries of Morar Care Group UK Limited.[18]On 3 March 2022, following a competitive interview process (LM & JH conducted the interviews), the claimant was offered the role of Care Home Manager with the respondent. The intention was that she would manage Tantallon House Care Home, in North Berwick, which had not yet opened. Her offer of employment indicated that she would be entitled to a salary of £60,000, plus the potential of a bonus of up to 50% of salary, subject to fulfilling necessary criteria.[19]The claimant commenced employment with the respondent on 27 June 2022. In the period from 27 June to 12 September 2022, the claimant undertook an induction and then focused on recruitment for staff to be engaged at Tantallon House. As part of her induction, the claimant received training from JH on the respondent’s Quality Assurance System (QAS). All care homes must have a robust QAS in place, and the Care Inspectorate expect to see evidence of this during inspections. It is therefore extremely important that the QAS is followed, and that the appropriate documentation is completed to evidence that this has been done.[20]Tantallon House opened on 12 September 2022 and could provide care and support for up to 70 residents. Resident numbers increased gradually from the point Tantallon House opened.[21]In January 2023, the claimant’s salary increased to £62,500.[22]By the start of January 2023, there were around 14 residents at Tantallon House. On 9 January 2023, the Deputy Manager and a Senior Care Assistant at Tantallon House both transferred to another care home, at their request. By that stage, the respondent had not yet recruited a Lead Clinical Nurse – that role was being advertised, and the respondent then also placed an advert for the Deputy Manager role. A Lead Clinical Nurse started working at Tantallon House in March 2023. Performance Improvement Plan (PIP)[23]JH and LMcF, are responsible for ensuring quality and compliance within the Morar Group, and have the ability to check the records produced by each care home in the group remotely, through their Care Control System. On 21 March 2023, JH sent the claimant an email asking her to ensure that her staff uploaded to Care Control all pre-admission assessments and social work assessments for her residents, as she had noticed that this had not been done.[24]On 17 April 2023, LMcF conducted a Quality Assurance check at Tantallon House. There were 28 residents at that point. She noted that the QAS documentation was not being completed. This meant that the respondent would not be in a position to evidence that they were providing appropriate care to residents, and following appropriate procedures in relation to this. She completed a quality assurance check form, highlighting the failings she had identified. She discussed this with the claimant, and it was placed in the quality assurance folder for Tantallon House.[25]On 24 April 2023, JH sent an email to the claimant stating that she understood that the Care Inspectorate would be undertaking an unannounced visit to Tantallon House within the next 4 weeks. She highlighted that care plans she was looking at remotely did not contain details regarding end-of-life care, which was required. She stated that the claimant required to ‘use the quality system and follow it and use the diary which will show you what they are looking for’. She listed what she understood the Inspectors would look at and indicated that LMcF would attend Tantallon House that week to assist her.[26]On 26 April 2023, JH sent a further email to the claimant, highlighting that she had noticed that residents’ care plans did not have details regarding preadmission assessments or activity and social inclusion, and still did not include end of life care. She highlighted to the claimant that details regarding end-of-life care required to be completed by 1 May 2023, and activity and social inclusion detailed by 7 May 2023.[27]LMcF attended Tantallon House on 26 & 27 April 2023, to provide support and assistance to the claimant. At that time there were 26 residents at Tantallon House. LMcF assisted the claimant to complete folders 1-7 of the respondent’s QAS folders and bring them up to date. She also completed an Internal Inspection, and prepared a report detailing her findings. The Internal Inspection Report graded Tantallon House 1 (the lowest score out of a possible 5) for categories of ‘how good is our leadership’ and ‘how well is our care and support planned’. It was graded 2 for the remaining categories, namely ‘how well do we support people’s well-being’, ‘how good is our staff team’, and ‘how good is our setting’. Each category had a number of subcategories and details of the rationale was provided for the grading of each subcategory. The report extended to 11 pages. A Service Improvement Plan was created, in discussion with the claimant, from the Internal Inspection Report.[28]LMcF visited Tantallon House again on 5 May 2023. She reviewed folders 1- 7 with the claimant, and noted that these were still not being completed appropriately. She also noted the claimant was still not using the Managers’ Diary, which provided step by step tasks which require to be taken daily/weekly/monthly, and assists Managers to structure their days to ensure compliance with the respondent’s QAS. She discussed the benefits of using the Managers’ Diary with the claimant, as she had done previously.[29]On the afternoon of Friday 5 May 2023, JH noted, through remote checking, that care plans were not in place for 2 residents who had been admitted to Tantallon House on 2 May 2023. This was extremely concerning to her, as it is a legal requirement that care plans are put in place within 48 hours of admission. She sent an email to the claimant in relation to this at 16:42 on 5 May 2023 stating that ‘if the [Care Inspectorate] walk in we will be shot’. She indicated that it was essential and that this must be done, stating that there was ‘no excuse for this as there are nurses on each shift’. She suggested that the claimant instructed the staff on over the weekend to do so.[30]JH checked the position re the care plans on the morning of Tuesday 9 May 2023. She noted that these had still not been completed, and that there was now a further care plan outstanding. She sent an email to the claimant at 09:45 that morning, copied to LMcF and KM, indicating that ‘This MUST be addressed today and these 3 residents must have a care plan. These should have been started after pre-admission and then built on. Ensure these are allocated to nursing team and completed. Laura will you ensure this is carried out and Katrina as you are there tomorrow can you review. Also we still have several residents with no EOL, social, spiritual, activity care plans. These are essential. Linked documents still do not have the required documentation, pre-admission assessments, SW assessments, AWI, DNACPR and there is no consent.’[31]LMcF attended Tantallon House again on 9 May 2023. She noted during the course of the day that the claimant had not updated QAS folders 1-7 since she had last visited. This ought to have been done in relation to daily and weekly tasks. At 15:04 she sent KM an email expressing her concerns, as she knew KM was to be there the following day, and stating ‘I audited QA and I am really disappointed we haven't moved forward at all and if anything we are more in the woods as month going on. Gladys was to work on Folders 1-7 but nothing has been done in 10 days. I thought she had it last week but nothing at all is updated.’[32]From 10 May 2023, KM worked from Tantallon House on a full-time basis, to provide intensive support and assistance to the claimant, in preparing for the anticipated Care Inspectorate visit. The claimant and KM had had minimal contact prior to that point. In addition, JH and LMcF continued to provide support remotely, with LMcF also visiting on particular days.[33]On 17 May 2023, the claimant attended a Teams meeting with JH, LMcF, KM and LM to discuss progress at Tantallon House. During the meeting the claimant indicated that she wished to resign. LM offered the claimant an alternative role, as Clinical Home Manager, but the claimant indicated that she did not wish to accept that. She indicated that she would work through her 3 month notice period. LM wrote to her the following day confirming acceptance of her resignation, and the arrangements regarding termination. The claimant then sought to rescind her resignation, the following morning, stating ‘I have come with very positive energy after a professional and personal wabble early this week. I have made a clear decision to stay on as Home Manager at Tantallon House. So, I am formally rescinding the resignation....I am sorry for the distress I caused during the stressful days I was experiencing personally.’ The respondent agreed to allow the claimant to rescind her resignation, and the claimant continued working.[34]The respondent determined however that the claimant should be placed on a formal performance improvement plan, as a result of the concerns they had in relation to her performance. This was prepared by JH and detailed 13 separate areas where the respondent considered that improvement was required in the duties which the claimant undertook or was responsible for. This covered issues such as the QAS being fully implemented and maintained, use of the Manager’s Diary, holding daily flash meetings and ensuring care plans were completed within 48 hours of admission and audited regularly thereafter. The requirements, expected outcome and timescales for each element were detailed. The claimant was invited to a meeting with LM and COB on 23 May 2023. It was intended that the PIP would be discussed with the claimant at that meeting, and that a copy would be provided to her. As she was on her way to the meeting however, she was informed that the Care Inspectorate had arrived to conduct an inspection of Tantallon House. She accordingly went to Tantallon House to meet with the inspectors instead.[35]The Care Inspectorate visit to Tantallon House took place over 2 days: 23-24 May 2023. At that time, Tantallon House had 31 residents, less than half of its potential capacity. The Care Inspectorate issued their report on 30 May 2023 (the Report), indicating that the home was ‘adequate’ in relation to categories of ‘how well do we support people’s well-being’, ‘how good is our leadership’, ‘how good is our staff team’ and ‘good’ for ‘How good is our setting’ and ‘how well is our care and support planned’. While it was noted in the Report that a deputy manager was due to start at Tantallon House in July 2023, and the manager was receiving support from other managers in the provider group, no specific concerns were raised in the Report regarding staffing levels at Tantallon House. Instead, it was noted that there was an effective process for assessing how many staff hours were needed to meet people’s needs.[36]The claimant was placed on a PIP on 1 June 2023. She was on annual leave from 5-16 June 2023 and returned to work on Monday 19 June 2023. Controlled Drug Error[37]The administration of controlled drugs is strictly regulated. All nurses receive training in relation to this and are aware of the requirements. The respondent’s procedure followed those requirements and stated administration of controlled drugs must be witnessed by a senior manager, or a nurse with appropriate training to do so, if no senior manager is available. Both the person administering the controlled drug, and the person witnessing, should check the 5Rs: right person, right dose, right drug, right route and right time. Appropriate details should be recorded in respondent’s Controlled Drug Register (CDR) (which records the stocks of controlled drugs held and used by the respondent) and the respondent’s Electronic Medication Administration Records (EMAR) (the respondent’s formal record of the administration of controlled drugs to residents). The person who administered the controlled drug, and the witness, should then sign both the CDR and EMAR and to confirm that they have undertaken the 5R checks and either administered the medication, or witnessed this being done.[38]On 22 June 2023, a control drug error occurred at Tantallon House. A resident was given an incorrect dose of medication. The resident’s prescription was for 400mcg of Alfentanil daily, which was to be administered via a syringe driver. The syringe driver was replenished by District Nurses at 10:00 each day and only the District Nurse was permitted to do so. The prescription also indicated that the resident could be given 100mcg of Alfentanil every hour, by subcutaneous injection, for break through pain, if required. At 09:45 on 22 June 2023, the District Nurse administered the daily dose of 400mcg of Alfentanil, via the syringe driver. At 14:00 that day, the resident was given a further 400mcg dose, via the syringe driver. This was a controlled drug error. If any further dose had been required, it ought to have been 100mcg, via subcutaneous injection. The nurse who administered the incorrect dose was a Bank Nurse. She is black. She had asked a Senior Care Assistant (SCA) (who is Asian) to witness her administering the medication. The SCA was hesitant, as she had not been signed off as competent to do so, and did not have a clear understanding of what she was doing. She was however instructed to do so and did as instructed.[39]When asked to do so by the Bank Nurse, the SCA signed the CDR to confirm the amount of Alfentanil used and the stock remaining. When then asked to sign to confirm that she had checked and witnessed the administration of the medication, the SCA indicated that she could not do so, as she was not authorised and accordingly did not have a PIN to access EMAR to do so. This was due to the fact that she had not yet completed her training. Unless a PIN was entered into EMAR, no further medication could be given to other residents. In order to resolve this, the Bank Nurse approached the claimant. She explained that the SCA did not have a PIN, but had witnessed the administration of medication. She asked the claimant to insert her PIN into EMAR instead. The claimant did so, without asking any questions or conducting any checks. By doing so, the claimant created a record stating that she had personally witnessed the Bank Nurse give the medication, and that she had also undertaken the appropriate 5R checks in relation to the administration of that medication.[40]The controlled drug error was not discovered until the following morning, when the District Nurse arrived to administer 400mcg of Alfentanil via the syringe driver. On preparing to administer the medication, and in the course of her 5R checks to do so, she noted that a 400mcg dose of Alfentanil was missing. On checking the records, she noted that the resident had incorrectly been given a 400mcg dose the previous day, rather than 100mcg, and that this had been administered via the syringe driver, rather than subcutaneous injection. She highlighted this to the claimant, as Care Home Manager, so that the matter could be reported and investigated.[41]KM gathered initial information together regarding the controlled drug error and passed this on to JH, so that a formal investigation could be conducted into the matter. LMcF was appointed to do so. Harassment Complaint[42]The claimant commenced a period of sickness absence on 29 June 2023. On 14 July 2023, while still absent, the claimant received a copy of a complaint made by a member of staff at Tantallon House (C1). Within her complaint C1, a female nurse who is black, stated that a senior male colleague (C2), who is white, had spoken to her in a rude and disrespectful manner while working night shift the night before and said to her ‘people like you don’t make decisions here’ and ‘shut your black mouth’. She concluded her complaint by stating ‘I am writing to express how I feel. I love my job and I work with all my heart but today, I feel so hurt and mentally down because of the derogatory statement that were addressed to me by [C2]. [C2] made me feel less of myself, like I am worthless - because of my skin colour, I was discriminated. I believe I should be comfortable at my place of work and protected against discrimination but I was treated unfairly, bullied and emotionally harassed by a senior worker. I wish to request that you look into this incident.’[43]The claimant was extremely upset when she received the complaint from C1 and that comments like that could be made to nurses in her absence.[44]KM was acting as Manager of Tantallon House, while the claimant was absent. She received C1’s written complaint. She also received an email from C2 on the same day, stating that there had been an incident between him and C1 the previous evening. He set out his view of what occurred: that he had asked C1 to undertake certain duties, that C1 became confrontational, raised her voice and gestured noisily and aggressively in a resident’s room. He stated that he understood that C1 subsequently alleged that he had told her to ‘shut up’, which he denied.[45]KM did not have training on how to conduct investigations or make decisions regarding harassment complaints. She took no notes of any discussions she had in relation to the complaint, and took no steps to take advice from, or involve, the HR team. KM did not believe C1’s account, because she was not aware of any other complaints of harassment related to race being made against C2, but took no steps to explore or clarify whether that was in fact the case. KM did not properly investigate C1’s complaint. She did not even inform C2, or put to him, that C1 had asserted that he had made racist remarks, in order to obtain his comments in relation to that. Instead, after an informal chat with each individual, she indicated to C1 that it was her word against C2’s, so nothing could be proved and there was no evidence to enable the matter to be taken forward. KM indicated to C1 that she could arrange for her to work in a different unit from C2, going forward. C1 agreed to this.[46]The respondent’s Anti-Harassment and Bullying Policy (the Policy) sets out informal and formal procedures regarding harassment complaints. The informal procedure involves the individual speaking directly to the person who they believe has harassed them. The formal procedure is instigated by an individual writing to the employer and setting out the name of the harasser, the nature of the harassment, the dates and times of when the harassment occurred, the names of any witnesses and any action taken to attempt to stop the harassment. Each of these points was addressed in C1’s written complaint. The Policy states that an investigation manager will be appointed on receipt of a complaint of harassment and that they will then investigate the complaint and provide a report to a manager nominated to consider the complaint (the ‘decision maker’), who will hold a further meeting with the complainer before reaching a conclusion. The Policy states that the complainer will then be informed, in writing, of the outcome and given a right of appeal. None of these steps were followed regarding C1’s complaint. Return to Work[47]The claimant returned to work, following her sickness absence, on 14 August 2023. She had a return-to-work interview with BM. She raised in that discussion that she found the relationship between her and KM to be stressful and did not like the way that KM interacted with her. She raised with BM that, immediately prior to her sickness absence, a resident had stated to her that she had heard staff talking and that the claimant was to be fired because she was black, and a white person was coming in to take her job. BM later confirmed by email to the claimant that ‘the company takes any matter of discrimination very seriously and would carry out a thorough investigation into any claim made by you or any other member of staff. If you decided that there are grounds to make a complaint, you are encouraged to do so.’ The claimant thought that, by raising the matter with the Group HR Manager, she had already made a complaint.[48]Later that day, the claimant met with LM, with BM also in attendance. LM confirmed that the PIP would be continued and reviewed every two weeks. The relationship issues with KM were also discussed during that meeting and LM indicated that while the claimant and KM ‘may never become close colleagues or friends, it is necessary to recognise that she is your line manager and she can ask you to carry out reasonable instructions. Both parties do also require to be professional in their dealings with one another, at the minimum.’ The controlled drug error was also discussed. LM confirmed that the investigation was ongoing and asked the claimant to provide a written statement of her involvement in events to JH by the end of that week, which she did.[49]The claimant had separate discussions with KM and C1, following her return to work. KM indicated that she had investigated matters regarding the complaint made by C1 and that C1 had been moved, so that she would no longer work with C2. C1 indicated to the claimant that she had been told that her and C2 would need to apologise to each other. C1 told the claimant that she was not satisfied with the ‘resolution’ that was reached.[50]LMcF concluded her investigation into the controlled drug error on 25 August 2023. She prepared an Investigation Report, extending to 7 pages, setting out her findings. Her recommendation was that ‘There are just grounds to convene disciplinary hearings.’[51]Attached to the Investigation Report were: 51.1. A statement provided by the Bank Nurse who administered the controlled drug on 22 June 2023; 51.2. A statement provided by the SCA involved, as well as notes of the investigation meeting held with her; 51.3. A statement provided by the District Nurse who discovered the error, as well as the notes she made at the time; 51.4. A statement provided by the claimant, as well as notes of the investigation meeting held with her; and 51.5. Copies of entries from the CDR.[52]In the claimant’s statement, which she provided to the respondent on 14 August 2023, she set out her position regarding her involvement. She concluded by stating ‘on reflection, I think if I had enquired more about the dose which was being given or looked closely on the CDA I could have noticed that she was given a wrong dose and escalate to the GP immediately’.[53]In the investigation meeting held with the claimant on 23 August 2023, she confirmed that she was aware of the NMC Code, Sign and Nice guidelines, and that by signing EMAR she was taking responsibility for the medication. She accepted that she had made an error in signing EMAR, without seeing the administration of the medication and undertaking checks herself. She accepted that, if she had carried out checks at the time she was approached, it was likely she would have identified the error, and it would have been escalated sooner. She accepted that she would do things differently, if the same situation occurred again. Disciplinary Action[54]The claimant was invited to a disciplinary hearing in relation to her involvement in the controlled drug error by letter dated 25 August 2023. She was informed that she was suspended pending the disciplinary hearing and that, if substantiated, the allegations against her could constitute gross misconduct and lead to summary dismissal. The allegations included the following: ‘On 22nd June 2023, you signed on [EMAR] that the correct medication had been administered to resident and that the proper procedure had been followed. That was a falsification of events and the resident actually received the incorrect dose of medication, which was not reported in a timely manner.’[55]On 1 September 2023, the claimant raised a grievance (see paragraphs 61 to 65 below).[56]The claimant attended disciplinary hearings on 5 & 19 September 2023. These hearings were chaired by ER and a note taker was in attendance. The claimant was accompanied by her trade union representative. At the disciplinary hearing on 5 September 2023, the claimant confirmed that she took responsibility for not checking that the 5Rs had been done correctly. She accepted, looking back on the matter, that she should not have signed for the medication on EMAR. Before the disciplinary hearing was reconvened on 19 September 2023, the claimant submitted a written document entitled ‘Reflection of the Disciplinary meeting’. In this she stated when she was approached by the Bank Nurse, she ‘carried out a simple – but not comprehensive enough check as the medication had already been administered. To which I own up, and again – in hindsight, I carry out the 5 rights again before inputting my PIN…I missed crucial steps as I acted as a manager and not an RGN in tandem…On reflection, I would act differently.’ At the disciplinary hearing, it was noted that the Bank Nurse involved no longer carried out any work for the respondent and, indeed, had refused to have any contact with the respondent since providing her statement regarding the incident.[57]ER, a registered nurse herself, determined that, based on the claimant’s admissions and the available evidence, the allegation (as stated at paragraph 54 above) was substantiated. In reaching that conclusion she took into account that the claimant accepted that she should not have entered her PIN on EMAR, as she had not been involved in the dispensing of the medication to the resident: she had not witnessed the previous steps or checked that the medication was actually given, as prescribed, and as per nursing protocol. ER concluded that the claimant’s actions amounted to a fundamental breach of the NMC Code of Practice, as a nurse should never sign for events that they cannot verify. The claimant signed and approved the dispensation of medication to a resident while she had no real awareness of it. She signed to confirm that the correct dosage of medication had been given, when that was not the case. ER concluded that, by entering her PIN, the claimant had knowingly misrepresented events as being true, accurate and correct, which was a falsification of events in the medical notes of the resident. ER concluded that the claimant’s actions amounted to gross misconduct and that she had crossed a very important line in professional standards and trust by her actions, such that it was untenable for her to continue in her position as Care Home Manager.[58]On 21 September 2023, ER wrote to the claimant confirming that she found the allegation (as stated at paragraph 54 above) to be substantiated, that she considered it amounted to gross misconduct and that the appropriate sanction was summary dismissal. Other allegations, which had been under consideration, were discounted. Reasons were provided. The claimant was informed of her right to appeal.[59]The claimant’s employment accordingly terminated on 21 September 2023.[60]The claimant appealed against her dismissal. She attended an appeal meeting on 26 January 2024. The appeal was heard by LM. The claimant was accompanied at the appeal meeting by her trade union representative. The claimant did not assert, in her letter of appeal or during the appeal process, that the respondent’s decisions to instigate a disciplinary investigation, or to dismiss her, were racially motivated. The claimant was informed, on 15 February 2024, that her appeal had been unsuccessful. Grievance[61]The claimant’s grievance, dated 1 September 2023, extended to 6.5 typed pages and covered a wide variety of issues. The first point raised by the claimant was that the ‘Toxic working environment at Morar is directly and indirectly discriminative to black and minority ethnic colleagues.’ She stated that ‘colleagues, including myself, do not feel safe or confident that management will act in our best interests when we are subjected to racialised abuse from senior leadership management and staff. This includes examples I am aware of like, male senior carer [C2] feeling bolstered to say things like ‘people like you (a black female care assistant [C1]) don’t make decisions around here’ and are told to ‘shut your black mouth’. These incidents are not isolated and show a continuing growth of hostility towards black and female staff, which further adds to the stress I am experiencing as I do not feel I can adequately rely on my seniors to put a stop to and deter these types of behaviour. Where I challenge this behaviour or try to escalate, I am made to feel like a troublemaker, and I believe this to be impacting my career adversely.’[62]The claimant did not assert in her grievance that the respondent’s decisions to place her on a PIP or to instigate a disciplinary investigation were racially motivated.[63]A grievance hearing was initially scheduled for 19 September 2023, immediately after the disciplinary hearing. The claimant’s trade union representative requested that the hearing be re-scheduled, as two hearings in one day would be unduly stressful for the claimant. They requested that the grievance hearing be rescheduled to 22, 26 or 28 September 2023. The respondent did not respond. On 30 October 2023, BM indicated that he intended to ask ER to chair the grievance. The claimant objected to that the following day, setting out the basis for her objection. By January 2024, a grievance hearing had not taken place. At that stage, the claimant’s trade union representative indicated to BM that they would now wish to wait for full disclosure of information in response to the claimant’s SAR (which had been submitted in August 2023, but had not yet been fully answered), before proceeding.[64]The claimant presented her ET1 claim on 16 February 2024. She understood that, at that point, there had been no investigation of her grievance.[65]PH was appointed, in April 2024, to consider the claimant’s grievance. At that point, there had been no investigation of the matters raised in the claimant’s grievance. A grievance meeting took place on 15 April 2024. The meeting was chaired by PH and the claimant was accompanied at the meeting by her trade union representative. The outcome of the grievance was provided to her on 1 June 2024. Her grievance was not upheld.[66]In relation to the parts of the grievance outlined at paragraph 61 above, PH reached the conclusion that C1 had not asserted that C2 had said to her in July 2023 that ‘people like you don’t make decisions around here’ and ‘shut your black mouth’. He concluded that C1 did not report racism at the time, or at any point since. Taking that into account, and the fact that he had been informed by BM that C2 denied that he said the words attributed to him, PH concluded that the words were not used. He reached that decision without speaking to C1 (he made no attempt to contact her whatsoever), C2 (who BM spoke to, but PH did not) or KM (who had received an email from C1 in July 2023, raising the issues set out in paragraph 42 above). Instead, PH based his conclusion on an email exchange between BM and C2 in May 2024. In that exchange BM outlined the comments which have been attributed to C2, and the claimant’s assertion that these were not investigated. He asked C2 if a manager had spoken to him in July 2023, by way of investigating the claim that he had acted in a racist manner. C2 responded that he had had a meeting with KM at the time but ‘There was no mention of any racist remarks made. And there was no follow up.’ BM passed that email exchange to PH. No further investigation was undertaken by PH. Respondent’s submissions[67]Mr Uduje, for the respondent, in summary, submitted that: 67.1. The claimant has not shown a prima facie case, so the burden of proof should not shift to the respondent and the complaints should simply be dismissed as a result. 67.2. The key issue for the complaints of direct discrimination is the reason why the conduct occurred, which is intertwined with the issue of whether there was less favourable treatment. It is of note that the claimant was recruited following a competitive interview process. LM and JH were aware of her racial background from that point. She was provided with support throughout her employment and, when she resigned on 17 May 2023, the respondent sought to offer her an alternative role and then agreed to permit her to rescind her resignation. Had they, as the claimant asserts, been looking for a reason to dismiss her because of her race, they would simply have refused to allow the claimant to rescind her resignation: there was no obligation on them to agree to this. 67.3. The respondent has provided clear evidence to show that they had genuine concerns in relation to the claimant’s performance and sought to support the claimant in relation to these through a PIP. There is no evidence to suggest that the respondent’s decision to place the claimant on a PIP was in any way related to her race. In any event, the Tribunal has no jurisdiction in relation to this complaint, as it was submitted outside the requisite time limits. 67.4. Similarly, the respondent has provided clear evidence to explain why they commenced an investigation into the controlled drug error and subsequently determined that the claimant should be dismissed. The claimant had admitted the conduct, but appears to have no insight regarding the seriousness of her actions. There is no evidence to suggest that the respondent’s actions were in any way related to the claimant’s race. 67.5. In relation to the complaint of harassment, it is not reasonable for the claimant to assert that the statements made amounted to harassment when she did not hear them, and they were reported to her in her capacity as Care Home Manager. It is factually inaccurate to say that the respondent did not investigate the complaints: KM gave evidence that she investigated the complaints. Claimant’s submissions[68]Ms Mwanza, for the claimant, in summary, submitted that: 68.1. The PIP was not based on a robust process. The first meaningful intervention regarding the claimant’s performance was 17 April 2023. They have not explained why they waited so long. 68.2. The claimant has never denied her role in the controlled drug error, but has sought to explain the broader context. The respondent withheld a crucial document from the claimant, which was only produced during the course of the Tribunal hearing. Other documentation, such as the claimant’s job description and KPIs were only given a week before. 68.3. The way the respondent deals with allegations of racism is evident from the way the claimant’s complaint, regarding a resident informing her she was to lose her job due to her skin colour, was dealt with. LM confirmed in evidence that she thought the allegation was concerning, and she would have expected HR to investigate. They did not however do so, and showed no understanding or interest in preventing this. 68.4. KM indicated in evidence that she believed C2, simply due to the fact that she understood that no other complaints had been made in relation to his conduct. Despite saying that she viewed the allegations as being very serious, she did not investigate and did not involve HR. She appeared to make presumptions regarding credibility based on race. 68.5. The investigation in relation to the grievance was wholly and completely inadequate. There was no urgency and no process. 68.6. All of the respondent’s witnesses indicated that they had never investigated issues/concerns related to race. The respondent does not provide training in relation to this, and have failed to demonstrate an understanding of racial dynamics. The respondent failed to take race into account in reaching the decisions it did. The respondent either doesn’t recognise racism, or doesn’t care. Race cannot be ruled out as a factor in the claimant’s treatment. Relevant Law Direct Discrimination
Relevant Law
[69]Section 13(1) of the Equality Act 2010 (EqA) states that: ‘A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’[70]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed [2009] IRLR 884 the EAT recognised two different approaches from two House of Lords authorities -(i) in James v Eastleigh Borough Council [1990] IRLR 288 and(ii) in Nagaragan v London Regional Transport [1999] IRLR 572. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagaragan, the act complained of is not inherently discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious), which led the alleged discriminator to act in the way that he or she did.[71]It is unusual to have direct evidence as to the reason for the treatment (discrimination may not be intentional and may be the product of unconscious bias or discriminatory assumptions) (Nagarajan). The Tribunal should draw appropriate inferences as to the reason for the treatment from the primary facts with the assistance, where necessary, of the burden of proof provisions, as explained in the Court of Appeal case of Anya v University of Oxford [2001] IRLR 377. “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” (Madarassy v Nomura International Plc [2007] IRLR 246).[72]When considering an appropriate hypothetical comparator, there must be no material difference between the circumstances relating to each case (s23(1) EqA), that ‘what matters is that the circumstances which are relevant to the treatment of the worker are the same or nearly the same for the worker and the comparator’ (paragraph 3.23, EHRC Code of Practice on Employment (2011)). ‘The circumstances’ relevant for a comparison include those that the alleged discriminator takes into account when deciding to treat the claimant as it did (Shamoon v Chief Constable of the RUC [2003] IRLR 285).[73]For direct discrimination to occur, the relevant protected characteristic needs to be a cause of the less favourable treatment ‘but does not need to be the only or even the main cause’ (paragraph 3.11, EHRC: Code of Practice on Employment (2011)). The protected characteristic does however require to have a ‘significant influence on the outcome’ (Nagarajan). Significant in this context means more than trivial (JP Morgan Europe Limited v Chweidan [2011] IRLR 673). Harassment[74]Section 26(1) EqA states that: ‘(1) A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.’[75]Section 26(4) EqA states that: ‘(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.’[76]There are accordingly 3 essential elements of harassment claim under section 26(1), namely(i) unwanted conduct,(ii) that has the proscribed purpose or effect and(iii) which relates to a relevant protected characteristic.[77]The EHRC: Code of Practice on Employment (2011) explains, at paragraphs 7.9-7.11, that ‘related to’ has a broad meaning. It occurs where there is a connection with the protected characteristic. Conduct does not have to be ‘because of’ the protected characteristic. Burden of proof[78]Section 136 EqA states that: ‘If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.’[79]There is a two-stage process in applying the burden of proof provisions in discrimination cases, explained in the authorities of Igen v Wong [2005] IRLR 258, and Madarassy v Nomura International Plc [2007] IRLR 246, both from the Court of Appeal. The claimant must first establish the first stage or a prima facie case of discrimination or harassment by reference to the facts made out. If the claimant does so, the burden of proof shifts to the respondent at the second stage to prove that they did not commit those unlawful acts. If the second stage is reached the Tribunal is obliged to uphold the claim unless the respondent can show that it did not discriminate.[80]In Madarassy, it was held that the burden of proof does not shift to the employer simply by a claimant establishing that they have a protected characteristic and that there was a difference in treatment. Those facts only indicate the possibility of discrimination. They are not, of themselves, sufficient material on which the Tribunal “could conclude” that on a balance of probabilities the respondent had committed an unlawful act of discrimination. Something more is required, but that need not be a great deal (Deman v Commission for Equality and Human Rights and ors 2010 EWCA Civ 1279, CA). The Tribunal has, at the first stage, no regard to evidence as to the respondent’s explanation for its conduct, but the Tribunal must have regard to all other evidence relevant to the question of whether the alleged unlawful act occurred, it being immaterial whether the evidence is adduced by the claimant or the respondent, or whether it supports or contradicts the claimant’s case, as explained in Laing v Manchester City Council [2006] IRLR 748, an EAT authority approved by the Court of Appeal in Madarassy. Discussion & Decision Direct Discrimination[81]The Tribunal considered each asserted act of direct discrimination, considering whether the alleged treatment occurred, whether it amounted to less favourable treatment and, if so, what the reason for that treatment was: was it because of race. Placing the claimant on a PIP[82]It was not disputed that the claimant was placed on PIP. The Tribunal considered whether that conduct amounted to less favourable treatment. The claimant did not rely on any actual comparators, but asserted that she would not have been placed on a PIP if she was white.[83]The Tribunal concluded that any Care Home Manager employed by the respondent, whose performance was as described in paragraphs 23-31 above, would have been placed on a PIP. A hypothetical comparator in these circumstances would accordingly have been treated in exactly the same way as the claimant was treated. The claimant did not establish that she was treated less favourably than someone would be treated by the respondent in the same, or not materially different, circumstances.[84]Given these findings, the Tribunal concluded that the claimant did not establish a prima facie case, and the burden of proof did not shift to the respondent.[85]Even if the burden of proof had shifted to the respondent however, the Tribunal would have reached the conclusion that the claimant’s race did not influence the respondent’s actions, and there was no basis upon which it could be inferred that the respondent’s treatment of the claimant, in placing her on a PIP, was because of race. The Tribunal was satisfied that, as set out in paragraphs 23-31 above, the respondent had genuine and valid concerns in relation to the claimant’s performance and those concerns, alone, were the reason the claimant was placed on a PIP. Their decision to do so was not influenced, in any way, by the claimant’s race. In reaching this conclusion, the Tribunal accepted the respondent’s submission, as set out in paragraph 67.2 above, that had the respondent been motivated by race, as the claimant asserted, they would not have offered the claimant alternative employment when she resigned, in an effort to retain her, nor permitted the claimant to rescind her resignation, a few days prior to placing her on a PIP.[86]For these reasons, the claimant’s complaint of direct discrimination, in relation to the decision to place her on a PIP, does not succeed. Subjecting the claimant to a disciplinary investigation and dismissal[87]These issues, namely conducting an investigation and the decision to dismiss the claimant, are interrelated so were considered together. It was not disputed that the conduct had occurred: the claimant was subjected to a disciplinary investigation and was dismissed.[88]The Tribunal considered whether the claimant had established that that conduct was less favourable treatment. The claimant did not rely on any actual comparators, but asserted that she would not have been subjected to a disciplinary investigation, or dismissed, if she was white. She relied on the fact that the other individuals involved in the controlled drug error were not subjected to a disciplinary investigation or dismissed. The other individuals directly involved were the Bank Nurse and the SCA. Neither is white and neither were in the same position as the claimant. In addition, as noted in paragraph 56 above, the Bank Nurse did not carry out any work for the respondent following the controlled drug error, and refused to have any contact with the respondent after providing her initial statement. As a bank nurse, she was a worker, rather than an employee, so not subject to the respondent’s disciplinary procedure.[89]The Tribunal concluded that any registered nurse employed by the respondent, who also held the position of Care Home Manager, and who signed to indicate that she had witnessed the administration of a controlled drug, when she had not in fact done so (as described in paragraph 39 above), would have been subjected to a disciplinary investigation. That individual would also have been dismissed by the respondent, for the reasons set out in paragraph 57. A hypothetical comparator, in the same or not materially different circumstances, would accordingly have been treated in exactly the same way as the claimant was treated.[90]Given these findings, the Tribunal concluded that the claimant did not establish that she was treated less favourably than someone would be treated by the respondent in the same, or not materially different, circumstances. As she did not establish a prima facie case, the burden of proof did not shift to the respondent.[91]Even if the burden of proof had shifted to the respondent however, the Tribunal would have reached the conclusion that the claimant’s race did not influence the respondent’s actions, and there was no basis upon which it could be inferred that the respondent’s treatment of the claimant, in carrying out a disciplinary investigation and then dismissing her, was because of race. The Tribunal was satisfied that the respondent had genuine and valid reasons for undertaking a disciplinary investigation, and dismissing the claimant. Those decisions were not influenced, in any way, by the claimant’s race.[92]For these reasons, the claimant’s complaint of direct discrimination, in relation to the disciplinary investigation and her dismissal, do not succeed. Harassment[93]The Tribunal then considered each allegation of harassment, considering whether there was unwanted conduct, whether it related to race and, if so, whether the conduct had the proscribed purpose or effect. The Tribunal was mindful that, before the burden of proof can shift to the respondent, the claimant requires to establish, on the balance of probabilities, that he or she has been subjected to ‘unwanted conduct’ which has the proscribed purpose or effect and must also adduce some evidence to suggest that the conduct could be related to race.[94]The Tribunal did not hear evidence from C1 or C2. The Tribunal were simply presented with the written complaints which each individual submitted at the time, as well as hearing evidence from the claimant (who only spoke to C1) and from KM, who spoke to both (but, as indicated at paragraph 45 & 66 above, did not inform C2 of what C1 had alleged he had said to her). On balance, the Tribunal concluded that C2 did say to C1 that ‘people like you don’t make decisions around here’ and ‘shut your black mouth’. In reaching that conclusion, the Tribunal took into account the terms of her written complaint, concluding that she would not have put a serious allegation of this nature, which involved a senior male colleague, in writing, if it had not occurred. She would not have expressed how that made her feel, in the terms she did, had it not occurred. She also agreed to move to another department, in the face of KM’s inaction, rather than remain working with C2. There would have been no need for her to do so, if the comments had not been made and she felt comfortable continuing to work with C2.[95]It was not disputed that C1 informed the claimant of what was said to her, at the same time as it was reported to KM. The Tribunal accepted that, from the claimant’s perspective, the conduct of C2 was unwanted, even although the comments were not made to the claimant, or in her presence. The comments self-evidently related to race and the Tribunal concluded that they, reasonably, had the proscribed effect for the claimant. The Tribunal did not accept that, as submitted by the respondent, that it was not reasonable for comments to have the proscribed effect as they were reported to her in her capacity as Care Home Manager, so she could investigate. The claimant was absent at the time, and KM was acting Care Home Manager. Responsibility for the investigation accordingly fell to KM. It was objectively reasonable for the claimant to view comments of this nature, being made in the place where she worked to her colleagues, as creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The claimant’s complaint of harassment in relation to this accordingly succeeds.[96]The Tribunal’s findings in relation to KM’s investigation of the incident are set out at paragraphs 44-46 above. The Tribunal concluded that KM failed to take appropriate action in response to C1’s complaint, to investigate this and to protect staff from further conduct of this nature. The Tribunal accepted that, from the claimant’s perspective, this conduct was unwanted. She expected a thorough investigation, and would have ensured this was done if she had been at work at the time the complaint was made. The Tribunal concluded that the respondent’s failure to investigate the complaint, reasonably, had the proscribed effect for the claimant. She explained clearly how that failure made her feel in her grievance (see paragraph 61 above), stating that she did not feel that she could rely on management to put a stop to or deter racialised abuse, that she was not confident that management would act in her best interests if she was subjected to racialised abuse, that people felt bolstered to make comments like those made by C2 and this demonstrated a growing hostility towards black and female staff in the workplace. It was objectively reasonable for the claimant to conclude that the failure to investigate created an intimidating, hostile, degrading, humiliating or offensive environment for her.[97]The Tribunal concluded that KM’s failure to investigate was related to race. The complete failure to investigate the allegation of race discrimination, involve the respondent’s HR department or follow the Policy when dealing with the complaint was, the Tribunal concluded, provided sufficient basis upon which it could be concluded or inferred that the failure to investigate C1’s complaint could be related to race. That was sufficient to shift the burden of proof to the respondent. They have not proved that the failure to investigate was not related to race. They have provided no explanation whatsoever. The Tribunal concluded that KM (and the respondent generally, given the findings at paragraphs 47 and 66 above), simply did not take complaints of race discrimination seriously, or believe that a formal investigation was required in relation to allegations of that nature. In relation to the controlled drug error for example, a different approach was adopted: gathering initial information and passing this to the appropriate department, on the understanding that a formal investigation would then be conducted in accordance with the respondent’s policies. As the respondent has not discharged the burden of proof, it is necessary for the Tribunal to conclude that the complaint should be upheld. The Tribunal accordingly finds that the claimant’s complaint of harassment in relation to this succeeds.[98]For the avoidance of doubt, the Tribunal only considered the failure on the part of KM to investigate C1’s grievance. Whilst the Tribunal found that there was no investigation whatsoever of the claimant’s grievance, in the period from 1 September 2023 to April 2024, her employment terminated on 21 September 2023. There was accordingly, from 21 September 2023 onwards, no obligation on the respondent to continue to investigate the claimant’s grievance, as she was no longer an employee. A grievance hearing had been scheduled for 19 September 2023, but that was postponed at the claimant’s request.
Remedy
[99]No financial loss flows from the established acts of harassment.[100]The Tribunal accepted that the claimant was upset on receipt of C1’s email, as set out in paragraph 43 above. The Tribunal accepted that the terms of her grievance (replicated in paragraph 61 above), where she referenced the comments which she understood had been made to C1 by C2, reflected her feelings at that time – around 2 weeks after her return to work: she did not feel safe or confident that management would act in her best interests if she was subjected to racialised abuse from senior leadership management or staff; she did not feel she could rely on her seniors to put a stop to, or deter, that type of behaviour; she felt there was a continuing growth of hostility towards black and female staff, which added to the stress that she was experiencing at the time; and felt that she was not taken seriously when she tried to challenge this behaviour or escalate matters. It was clear from this that she felt that the respondent had not adequately investigated or addressed C2’s behaviour, and that their failure to do so had an ongoing and adverse impact on her.[101]Whilst medical evidence was produced to the Tribunal, there was no indication from this that the established acts of harassment had any particular impact on the claimant’s physical or mental health.[102]In these circumstances, the Tribunal considered that an award in the middle of the lower Vento band was appropriate, namely £5,000. Interest of £645.48 from 1 September 2023 to date (589 days @ 8%) is also payable.[103]The Tribunal considered whether it was just and equitable to apply an uplift to the award, as a result of any failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (2015) (the Acas Code). The Tribunal noted that any failure to comply with the Acas Code would be in relation to steps which ought to have been taken with C1, not the claimant. In those circumstances, the Tribunal concluded that it was not just and equitable to make any uplift in the award of injury to feelings made to the claimant.