Mr H K Batcha v The Grange Care Centre (Cheltenham) Ltd: 6000074/2024
EMPLOYMENT TRIBUNALS
Case No 6000074/2024Venue BristolHearing 26 to 28 August and 1 and 2 September 2025
Between
Mr H K BatchaClaimantThe Grange Care Centre (Cheltenham) LtdRespondent
Before
Employment Judge J BaxIn person for claimantMr K Sonaike (instructed by counsel) for respondentDate 3 September 2025
JUDGMENT
[1]The claims of direct race/nationality and religious discrimination are dismissed.[2]The claim of breach of contract in respect of notice pay is dismissed.
REASONS
[1]In this case the Claimant claimed that he had been discriminated against on the grounds of race and/or religion. He also claimed that he was dismissed in breach of contract and was entitled to notice pay. The Respondent denied the claims. Background and issues[2]The Claimant notified ACAS of the dispute on 7 December 2023 and the certificate was issued on 11 December 2023. The claim was presented on 9 January 2024.[3]The Claimant was assisted throughout the hearing by a Tamil interpreter. The Claimant understood a reasonable amount of written and spoken English and sometimes answered questions in English, rather than waiting for a translation. He had asked for an interpreter in case he had not understood something. The Claimant’s wife was also assisted by the interpreter, when she gave evidence.[4]The issues to be determined were discussed and agreed at a case management preliminary hearing on 28 November 2024. Those issues were further discussed at the start of the hearing and it was agreed they were as follows.[5]It was agreed that any act of discrimination before 8 September 2023 was potentially presented out of time.[6]The Claimant made the following allegations of direct race and/or religious discrimination:a. In June 2023 was Ms Kim Dundas, the Home Manager, was rude to the Claimant stating, “You are Muslim and you come from India, and because of your culture you cannot work under a woman”?b. In August 2023, did Mrs Dundas refuse to respond to the claimant’s questions in that(a) when the Claimant went to the office to clarify an issue over pay, did Ms Dundas stamp her foot and say “Don’t come to me” whilst allowing other staff to approach her, and(b) the next time the Claimant went to her office she said told him not to come to her office and she was going to call the police.c. The respondent failed to give the Claimant a suspension letter or otherwise set out his rights in writing, inform the claimant of the procedures being followed or explain the next steps.d. The disciplinary allegations made against the Claimant were not based on fact and were fabricated in order to dismiss him.e. On 7 November 2023, the Claimant was not given an opportunity to explain his account in relation to the disciplinary allegations at the meetingf. On or about 9 November 2023 the respondent dismissed the Claimant; the Claimant argues that the decision to dismiss him was predetermined.[7]The Claimant was not given notice to end his employment and he was not paid in lieu of notice. He brought a claim for his notice pay. The Respondent’s case was that the Claimant was guilty of gross misconduct and was entitled to dismiss him without notice.[8]The Claimant agreed at the preliminary hearing that he did not rely on matters in relation to prayers as allegations of discrimination, but he did rely on them as background. Matters arising in the hearing.[9]During the hearing, an issue arose as to whether the Claimant had been provided with the job description. With the Claimant’s consent, the Respondent adduced 3 further documents to be included in the hearing bundle: the signed contract of employment, the signed job description and confirmation of receipt of the Staff Handbook. The Claimant later provided a further signed copy of his contract and the job description.[10]By mid-afternoon of the third day, the Tribunal had not been able to book an interpreter for the fourth and fifth days of the hearing. The Respondent decided to not call Mr Klor to give evidence. The oral evidence was completed by the end of the third day, after sitting later than usual. The parties agreed that they would provide written submissions and that the Judge would provide a written Judgment, which removed the difficulties with a lack of an interpreter.
The evidence
[11]I heard from the Claimant and I heard from Mrs Neeliyathodi, his wife. I heard from Ms Chance Dundas, Ms Cain and Mr Lund on behalf of the Respondent.[12]I was also provided with a bundle of documents of 313 pages. Any references in square brackets, in these reasons, are references to page numbers in the bundle.[13]There was a degree of conflict on the evidence.[14]In relation to the evidence of Mr Klor, his evidence could not be tested by way of cross-examination. It was therefore not possible to attach any significant weight to it.[15]There were transcripts of various covertly recorded conversations, particularly between Mrs Chance-Dundas and the Claimant. Some of the recordings had not been fully transcribed, in particular the conversation in May 2023 in which references were made about culture. Only the part the Claimant wanted to rely upon had been transcribed and played to the Tribunal. The context of the conversation had not been provided. The Claimant disclosed the whole recording to the Respondent during the hearing. The recordings and transcripts were not of every conversation or interaction between Mrs Chance-Dundas and the Claimant.[16]The recordings which were played to the Tribunal gave the following impression. There were times when Mrs Chance-Dundas sounded cross and she raised her voice to him and sometimes shouted. This was apparent in the conversation about the date his employment started. Mrs ChanceDundas had said that the Claimant had been confrontational and been in close proximity to her. She also gave evidence that the Claimant had a tendency to follow her and try and continue conversations, which was also said by Ms Cain and Mr Lund.[17]The recordings from May 2023, in which there was the cultural reference, were very short. Mrs Chance-Dundas spoke across the Clamant at one point. However in the part in which she had referred to sponsorship she sounded as if she was trying to be kind to the Claimant and understood the difficulties he would face with sponsorship. Mrs Chance-Dundas herself had come to the UK on a sponsorship scheme.[18]In the conversation in July 2023 about pay, Mrs Chance -Dundas sounded impatient. However the Claimant also spoke across her when she was trying to speak on the telephone and when she left the office he followed her and continued talking.[19]In the conversation on 18 April 2023, the start of the recording included Ms Chance-Dundas referring to him talking in her ears before they had reached her room. The Claimant also spoke across her before she had finished what she was saying.[20]The recordings provided snapshots of specific points in time. They showed that Mrs Chance-Dundas could be cross and impatient. They also showed that the Claimant could speak across other people and could follow closely behind people and continue to make his point.[21]The Claimant, in his closing submissions, made the point that some information, such as names of people, was said for the first time during oral evidence. However the Claimant also referred to matters during his evidence and when cross-examining which he had not referred to in his witness statement.[22]All of the witnesses who gave oral evidence remained consistent with their witness statements.
The facts
[23]I found the following facts proven on the balance of probabilities, after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[24]The Respondent operates residential care homes. This included a care home in Cheltenham called Lilleybrook.[25]The Claimant is a Muslim and an Indian National, he had come to work in the UK under a sponsorship scheme.[26]The Claimant’s job description, which he signed on 28 December 2022, provided that the purpose of the role was, “To assist in the provision of care and work as part of the team to achieve required standards. To ensure Service Users retain their dignity and individuality. To be involved in the general activities of the Care Centre. To maintain a safe and secure environment for Service Users, Staff Members and Visitors. His main responsibilities included:a. Ensure the highest possible levels of care are maintained by supporting and assisting Service Users when required with all aspects of daily living.b. Assist Clients in all aspects of their care needs, e.g. physical, emotional and spiritual. Provide supervision and attention when needed, ensuring Service Users retain their comfort and dignity.c. Pay particular attention to assisting Service Users who have limited mobility, or physical, learning difficulties making the best use of aids provided.d. Practice maximum integrity in all dealings with Service Users personal and financial affairs, and avoid abuse of the privileged relationship that exists with Service Users.[27]The Claimant’s contract provided:a. His employment began on the day of his first shift. The date of the agreement was when his period of continuous employment commented.b. He was subject to a 3 month probationary period.c. Clause 7 provided, “Your employment is subject to a satisfactory completion of a six month probation period. The company reserves the right to extend this period at its discretion. The Company will assess and review your work performance during this time and reserve the right to terminate your employment at any time during the probation period giving one weeks’ notice. The probation period only expires upon written confirmation.”d. After the successful completion of the probation period he was entitled to one months’ notice.e. Clause 17 provided that the contract could be terminated without notice in certain circumstances, which included: i. “If you have committed any serious breach or repeated or continued (after warning) any material breach of your obligations under this agreement.” ii. “If you have been guilty of conduct tending to bring The Company into disrepute.”f. Clause 23 provided, “The Company's Disciplinary Grievance, Whistleblowing and Appeals Policy are not a means of imposing sanctions but is viewed as remedial rather than punitive. The Disciplinary Grievance, Whistleblowing and Appeals Procedures are detailed in the Care Home's Policies and Procedures file. These should be read during induction. If you require clarification of any aspect of the policy, please contact your manager. The disciplinary procedure is not contractual or subject to the contract.g. Various policies were required to be read and conformed with, including: i. Code of Conduct. ii. Disciplinary and Grievance procedures. iii. Health and Safety.[28]The Disciplinary policy included the following examples of what could amount to gross misconduct:a. Actions which may harm the well-being of a Service User (“abuse”).b. A serious breach of Health & Safety policies Physical violence or aggressive behaviour.c. Indecent or immoral acts.d. Bringing the company into serious disrepute.e. Covertly recording internal meetings with The Home without consent.[29]The Disciplinary Policy included an investigatory stage, which would normally include a meeting with the employee. The policy stated such a meeting was not a disciplinary meeting and the employee would not necessarily be offered the right to be accompanied [p235]. An employee may also be suspended pending the outcome of an investigation. If there were grounds for formal action there was a formal disciplinary process.[30]The Staff Handbook, which the Claimant signed for receipt of on 18 May 2023, included:a. We are committed to providing our Service Users with a safe, comfortable and caring environment which addresses their needs and preserves their individuality, choice, rights, dignity, privacy and independence. We aim to enhance our Service Users’ quality of life by providing support and stimulation to help them maximise their potential. Our Service Users’ needs are paramount: all Staff Members will ensure their needs and wishes are ascertained, respected and met wherever possible.b. We have a duty to protect both Staff Members and Service Users from distress (whether psychological or physical). We therefore have a duty to respect the preferences and beliefs of individual Service Users (whether religious, cultural, ethnic, social etc). It may therefore be necessary upon request of a Service User to ask a Staff Member to refrain from certain aspects of care of that particular Service User. This will provide protection to any Staff Member from inappropriate actions from a Service User.[31]The Respondent’s staff at the care home was diverse in terms of nationalities and religions. In terms of employed and agency staff there were people of the Christian, Hindu, Seikh and Muslim faiths and whose racial backgrounds were African, Asian and European. The Claimant was not the only Muslim who worked at the care home.[32]The following were key personnel working for the Respondent:a. Mrs Chance-Dundas: Registered Home Manager and the Claimant’s line manager. Mrs Chance-Dundas is a black Guyanese woman and a Seventh Day Adventist. She came to work in the UK from Guyana under a sponsorship scheme. Mrs Chance-Dundas generally speaks loudly and I accepted that she had a tendency to raise her voice with staff generally. If she was cross she would shout and did so with all staff. She started in her role very shortly before the Claimant started working for the Respondent.b. Ms Cain: Regional Manager.c. Mr Klor: director.d. Mr Lund: senior carer.e. Ms Sarah Greene: senior carer.[33]The Claimant was employed as a Health Care Assistant. There was a dispute as to when his employment started. The Claimant said that it was on 26 December 2022, whereas his contract was signed on 28 December 2022. The Claimant’s evidence was that Mrs Chance-Dundas spoke to him on 25 December 2022 and gave him a uniform and his first day was the next day. Mrs Chance-Dundas said that this was not possible because she was on leave on 25 and 26 December 2022 and that she first saw him on 28 December 2022. I preferred Mrs Chance-Dundas’ evidence that she was not working of Christmas Day and Boxing Day and had not spoken to the Claimant on 25 December 2022. There were e-mails [p68-71] between the Claimant and someone called Kay, which strongly suggested that the Claimant’s first shift was on 26 December 2022. It was likely that he did work on 26 December 2022 and signed the contact on his next working day, i.e. 28 December 2022. Mrs Chance-Dundas was unaware that he had worked on 26 December 2022 and later relied on the personnel file and date of the contract and had not been accurately informed of his first shift date.[34]The Claimant was initially given a room at the Care centre whilst he looked for accommodation. His family and friends were in Croydon at this time. Discussions in relation to prayers[35]The Claimant gave evidence that on 28 December 2022, he asked Mrs Chance-Dundas if he could go to Friday prayers and she had refused and said, why cannot you go on Sunday, I go to Church on Sundays. In crossexamination Mrs Chance-Dundas disagreed with the suggestion. Her account was that on the Thursday 29 December the Claimant had asked if he could have Friday off and she asked why and he explained why. She then explained that the Claimant had come to her late but she was able to change the rota so that he finished work at 2pm so he could go to the Mosque. I accepted Mrs Chance-Dundas’ evidence that as a Seventh Day Adventist she goes to church on Saturdays and that she also had close relatives who were of the Muslim faith. I preferred the evidence of Mrs Chance-Dundas. She did not refuse to allow the Claimant to go to Friday prayers and she did not ask why he could not go on Sunday or make reference to her going to church on a Sunday.[36]At the beginning of January 2023 the Claimant had a discussion with Ms Cain about shifts. The Claimant’s witness statement said he asked for a shift change, his oral evidence was that he asked for the day off and he had asked for every Friday off. He had asked for Friday off to go to a Mosque in Cheltenham and he asked for the rota to be changed to see his family in Croydon. When cross-examining Ms Cain, the Claimant put to her that he had asked for time off to go to prayers and not change the shift pattern and she had refused to give him time off to do so. Ms Cain’s evidence was that the Claimant was asking to vary the shift patterns of 8pm to 8am, 8am to 2pm and 2pm to 8pm and she had explained it was not possible because they reflected the needs of the home. The Claimant had asked if he could leave early on Thursday so he and his family could go to Croydon on Friday and then return late on Saturday and she had said she did not have an issue with a day off on a Friday, however he needed to speak to the home manager about it, but she did have an issue with leaving early on Thursday and returning late on Saturday. After that he had started to say why a change of hours was needed and he needed to attend the Mosque on Friday, to which she queried why he needed to go to Croydon to go to a Mosque.[37]The Claimant’s account between what he said in his witness statement, orally and how he put it to Ms Cain were inconsistent. I preferred the evidence of Ms Cain in relation to what was said in the conversation.[38]Ms Cain also gave evidence that the conversation started in the Manager’s office on the first floor. The Claimant would not accept what she had said and when she tried to leave he had blocked her way down the stairs. When she passed him he had followed her down the stairs to reception and when she spoke to the administrator the Claimant was tapping her on the shoulder and continued to ask the same question. She asked the administrator to call Mr Klor and Mrs Chance-Dundas had then appeared in reception. The Claimant’s evidence was that the conversation was in reception and Mrs Chance-Dundas was there. He denied blocking Ms Cain and tapping her on the shoulder. The Claimant accepted that he had asked the same thing 2 or 3 times. Mrs Chance-Dundas gave evidence that the Claimant had a tendency to closely follow her and continue talking and Mr Lund gave evidence that he had seen the Claimant do similar things when someone did not agree with him. There was support for the Respondent’s contentions in the recordings, when Mrs Chance-Dundas had commented on a similar incident involving her and the way in which he had been trying to talk to her before getting to the Manager’s office. I preferred the account of Ms Cain. The Claimant would not accept what she said. He initially blocked her path downstairs and then continued to try and raise the same matter whilst following her and then started tapping her on the shoulder.[39]The Claimant also had a conversation with a female agency nurse called Khobosie, a practising Muslim. The Claimant accepted that he had a conversation with her and said that she had seen him go to his room and said he could not go for prayer. When he said he needed to pray 5 times a day, she had said he could not leave the residents at risk and should pray in his break times and if outside of break times he would need to ask permission first. When cross-examined that the reason was to ensure resident safety, the Claimant did not answer the question but said he asked for permission. He accepted that people wanting a cigarette break needed to ask for permission. The Claimant cross-examined Mrs Chance-Dundas on the basis that she did not like him taking breaks, to which she responded she was not unhappy about him taking breaks, but she was unhappy that he sometimes went off without informing his senior and she had asked Khobosie to explain to him. I accepted Mrs Chance-Dundas’ evidence that if a staff member left the floor without informing the senior, there was risk that the floor would be understaffed and if a resident pressed the alarm call there might not be enough people to assist. I also accepted her evidence that if a smoker wanted a cigarette break they needed to ask permission first and that they would have a shorter lunch break to make up for the time.[40]The Claimant had, on occasions, gone to pray, outside of his scheduled breaks without informing his senior first. The Respondent was concerned that there was a potential risk to residents if there were insufficient staff. It was for this reason Khobosie was asked to speak to the Claimant. The initial part of the Claimant’s probation period[41]The Claimant attended his first supervision meeting on 15 February 2023. The notes recorded that the Claimant seemed to be settling in but that he needed to have a positive attitude and understanding. There was also a discussion about prayer time being allowed but it needed to be in his break times due to resident safety and this was explained and they agreed what they needed to. It was also recorded that he had not completed his moving and handling training, which was overdue, for which he was given an extension to 27 February 2023. [p76][42]Mrs Chance-Dundas’ evidence was, in relation to the moving and handling training, that he would not accept guidance as to the best course of action from those trying to teach him. She was also concerned that he was not interacting well with residents and was argumentative with staff and residents, if someone tried to explain he was not acting in accordance with procedure or a resident’s wishes. The Claimant accepted that interacting with residents was raised but not in relation to dealing with residents on his own when two people were needed. He said he never ignored the needs of the residents. The notes of the meeting supported what Mrs ChanceDundas said. Further, a similar issue later occurred, which led to the extension of his probation period in March 2023. I preferred the account of Mrs Chance-Dundas. I also preferred the evidence of Mrs Chance-Dundas that they discussed the Claimant’s prayer time and the need to ensure sufficient staff cover for the residents.[43]I accepted Mrs Chance-Dundas’ evidence that following the supervision meeting, she continued to have reports about the Claimant’s attitude towards members of staff. She received reports that he did not take well to be being asked to complete a task by someone who was not his manager and that this was more apparent with female staff.[44]There was an incident between the Claimant and another probationary female health care assistant called Ruchicka. Mrs Chance-Dundas had asked Ruchicka to ask one of her colleagues to help her attend to a resident who needed help. Mrs Chance-Dundas’ evidence was that Ruchicka had asked the Claimant for help and he had been rude and said to Ruchicka that he did not feel he should be taking instructions from her because she was just a girl and not his senior. The Claimant’s evidence was that there had been a misunderstanding and Ruchicka had interrupted him when doing a task and asked him questions when he finished and asked whether he had done things. He said he had then told her not to ask and he felt she was being bossy. He said he did not know she was giving him instructions. He denied a complaint had been made. The Claimant denied that she had cried or that she had come to him to ask for help with a resident and the incident had been made up.[45]There was a similar incident involving another staff member, Crystal, about which Mr Lund gave evidence. The Claimant’s behaviour and not following instructions was also discussed at the later probation review meeting. The Claimant accepted that an incident had occurred with Ruchicka. I preferred the evidence of Mrs Chance-Dundas. After the incident, Mrs ChanceDundas spoke to the Claimant and asked him for an explanation, he told her that he did not feel he should be taking instructions from her because she was just a girl and not his senior. When she asked why he said that back home women don’t tell men what to do or give them instructions.[46]The Claimant attended a probationary review meeting on 29 March 2023 [p77]. Discussion included Mrs Chance-Dundas’ concern that the Claimant had not followed instructions from his Team Leader, Sarah, in relation to assisting with a resident and the way in which to move a resident. This was referred to in the notes of the meeting. I accepted Mrs Chance-Dundas’ evidence that the moving and handling issue related to a resident needing re-positioning and the Claimant did not follow the correct procedure and the assessor thought the resident was at risk. The Claimant accepted that there was an issue and said he had difficulty understanding the assessor’s accent He agreed that he was given more time to pass the assessment. In relation to refusing the instruction he said he was fasting and was concerned because it would be double handed care and he had asked to swap and do single care only, but he had carried on and assisted. Mrs Chance-Dundas said that Sarah had reported that he had not assisted and she had to get another carer to help. The notes recorded that the Claimant had been speaking behind his team leader’s back and trying to get the instructions changed. I preferred the account of Mrs Chance-Dundas.[47]The meeting also discussed an incident in which the Claimant had argued with the kitchen staff. This was also recorded in the notes. The Claimant, in oral evidence said that the kitchen staff had removed the trolley and some residents had not had breakfast. He then made a suggestion and they had argued with him. Mrs Chance-Dundas disputed this and said that she had heard the incident and the kitchen staff were trying to explain that they had set aside bowls of porridge for the residents and he was arguing. She then explained that no resident would be left without breakfast and said where their porridge was left. The Claimant had to be told to stop arguing. Mrs Chance-Dundas’ account was more consistent with the meeting notes and I preferred her account.[48]I accepted Mrs Chance-Dundas’ evidence that she received more complaints from female staff about the Clamant than from male staff.[49]The Claimant’s probation period was extended to 21 June 2023 and improvement was required in his attitude and behaviour, work ethic and manual handling.[p78].[50]Mr Lund gave evidence that in April another carer, Crystal, had asked the Claimant to help her hoist a resident out of bed and into a wheelchair and the Claimant refused. Mr Lund told the Claimant that he needed to assist and he then reluctantly agreed. The Claimant denied that the incident occurred. In cross-examination the Claimant asked Mr Lund questions about how the resident would have been allocated to two carers and therefore there would have been no need to ask him to assist. Mr Lund explained that if it was a two person task and if one of the people allocated was not available, help would be needed from someone else or the task could not be done. This incident was reported to Mrs Chance-Dundas. I accepted the evidence of Mr Lund and Mrs Chance-Dundas. The Claimant was not scheduled to assist the resident in question and he did not help when he was asked to help by Crystal.[51]I also accepted Mr Lund’s evidence that when he asked the Claimant why he had not helped, the Claimant said he would not take notice of what they say, referring to the female staff and his faith.[52]Mr Lund had another conversation with the Claimant in April 2023 about when he had been asked to go on a break. Mr Lund, who was busy, had asked a female carer to tell the Claimant to go on his break. Mr Lund’s evidence was that it was reported to him that the Claimant had refused and would only take instruction from Mr Lund. The Claimant said that he was waiting for Mr Lund to tell him to go on his break and he had been asked by a junior carer which was not the normal process. The Claimant and Mr Lund then had a discussion about it. The Claimant said that it should be the senior telling him to have break and he made a reference to not taking instructions from women. I accepted the evidence of Mr Lund.[53]The Claimant had a discussion with Ms Chance Dundas and Sarah (Senior) on 13 April 2023. Sarah had asked another carer to give the Claimant an instruction and he had not done it. Ms Chance-Dundas then asked the Claimant to speak to her in her office. The covert recording the Claimant took, showed that he had started talking before they reached the office. The Claimant was told that if Sarah asked for something to be done he was not to go and ask why, she had put someone over him. The Claimant said he was interrupted and was not told Sarah had asked for it to be done. He was told that he was not senior to the carer because he had not passed his probation. Reference was made to him not liking to take instructions from people and would only take instructions from a nurse or Sarah. The Claimant said that people would not listen to him and were blaming him. He became upset. Mrs Chance-Dundas said it had been reported he said he was more senior than the carer because she had just come and she told him that they were both on the same level. Sarah added that at the weekend she had never seen so many red flags (tasks not being done in time). He was told that he did not listen to people. Mrs Chance-Dundas also told him not to follow behind her talking. She said it was stalking. She referred to an incident when he had followed her to her husband’s car after her shift had finished. She said if he kept doing it someone would turn round and backslap him.[54]I accepted Mrs Chance-Dundas’ evidence that the Claimant would follow close behind her and try to continue a conversation once it had ended. End of probationary period[55]On 18 May 2023, the Claimant attended a supervision meeting with Mrs Chance-Dundas. The notes recorded that they discussed his attitude towards some members of staff and the Claimant said he felt that some were bossy. It was also noted that his work ethic had improved and his moving and handling training had been signed off.[56]In the recording Ms Chance-Dundas said: “Because it is a cultural something, Because you feel where you come from in India, and because you are Muslim, women should not talk to you…” “I’m very versed in people’s culture and it’s a cultural something with you. You don’t want anybody junior to you to talk to you, you feel they’re bossy. You do not want them to give you instructions, and especially if it is woman. The men wouldn’t do it so, but the women you do it so. You’d better observe yourself.” A discussion then appeared to take place about Ruchicka. A further recording from the same meeting also discussed his sponsorship. Mrs Chance-Dundas said, “I don’t care how much you spend, darling. When I have to come to work here, when I have come in the UK, I spend money too, but you know what? I know I what I want and I stay humble and have a good attitude, so I could go and work anyway. So if you do not and I fire you, you can’t work nowhere, all your money will have to leave the UK. So you keep thinking about that. … And that’s the only reason Sadam, the only reason I didn’t let you go before, because I know about sponsorship and I know you have to spend money and I know you have a family, so don’t take it for granted that I don’t know. I know, and I would not do it unless you push me to do it right? So you need to pull your socks up , settle, and get to work properly, you hear me?” when the Claimant agreed she added, “You in your mind, because of your culture, you feel that women should not talk to you, you feel that women shouldn’t be boss over you, and that’s your culture. Forget about your culture. Forget about your culture Sadam.”[57]I accepted the evidence of Mrs Chance-Dundas that she had also come to the UK on a sponsorship scheme and understood the consequences of being dismissed. Mrs Chance-Dundas’ evidence was that she was trying to encourage the Claimant to behave and was advising him to improve. She further said that she had raised the cultural matter because of what the Claimant had said to her previously in relation to Ruchicka and she was saying that he needed to adapt in relation to how he interacted with his female colleagues.[58]At the end of the meeting it was confirmed that there had been sufficient improvement and he had passed his probation period. By this time he was working better with the team and was showing willingness to improve his attitude with the staff. The Claimant passed his probationary period. Pay issues[59]In June 2023, the Claimant raised that he had not received 2 hours of pay for May 2023. Mrs Chance-Dundas’ evidence, which I accepted, was that she had referred it to payroll and thought it had been resolved. I accepted the Claimant’s evidence that he did not receive a response from payroll.[60]On 4 July 2023, the Claimant raised that a further 3 hours were deducted from his June pay. Mrs Chance-Dundas made enquires with payroll and was asked to show him why he had not been paid. The Claimant was asked to go to her office so she could show him that he had not clocked in. The Claimant said that he had forgotten to clock in and Mrs Chance-Dundas replied that payroll would not know that. Mrs Chance-Dundas then received a telephone call and asked the Claimant to leave, he continued to try and talk to her and Mrs Chance-Dundas explained she had shown him what payroll had asked her to show him and asked him to leave again. The Claimant returned a couple of minutes later and raised the issue again. Mrs Chance-Dundas was annoyed and said she did not have his payslip and it was not her work to sort it out.[61]The Claimant’s evidence was that during the second conversation he was shouted at and Mrs Chance-Dundas stamped her foot. Mrs Chance-Dundas accepted that she raised her voice, but did not accept that she stamped her foot, because she was sitting down behind her desk. It was not put to her that she said she would call the police or that she said she would slap him and I did not accept that this happened.[62]The pay issue for the month of June was resolved by payroll when care records were checked and it was verified the Claimant had been at work.[63]On 17 August 2023, the Claimant discussed his start date with Ms ChanceDundas at a supervision meeting. The Claimant said that he had started on 26 December and Mrs Chance-Dundas said it was the 28th. During the conversation she showed him the notice board with the start dates and that it was recorded as the 28th. The Claimant’s contract was signed on 28 December 2022. The Claimant continued to say it was the 26th. Mrs Chance-Dundas became angry and shouted at him to leave her office and that his contract began on 28 December. I accepted that the Claimant was in close proximity to Mrs Chance-Dundas when he continued to say it was on the 26th. I accepted that Mrs Chance-Dundas had been told by administration that the Claimant’s contract was dated 28 December 2022. Supervision Meeting on 1 September 2023[64]In August 2023, Ms Chance-Dundas received three complaints about the Claimant. One was from a staff member who had asked where the Claimant had been when he was not in the unit and not due to take a break, to which the Clamant had responded by saying why do you want to know. Two other concerns were raised about patient care.[65]The Claimant was called to a supervision meeting on 1 September 2023. The notes [p93] recorded that Ms Chance-Dundas discussed:a. His behaviour and attitude towards a senior carer when she spoke to him and he had refused to follow her instructions which put a resident at risk. He had then been argumentative when there was an attempt to explain the risk.b. The Claimant was told that residents were the primary priority and if he had any issues, he must put them to one side and work as a team.c. He was told it was his second warning about his behaviour.d. He was told if there were any further complaints about his behaviour and attitude she would consider a formal hearing.[66]The transcript of the covert recording of the meeting said that Mrs ChanceDundas said she had three written complaints. In oral evidence she said that they were not in writing when the Claimant asked why they had not been disclosed to him. The transcript appeared to involve the Claimant and Mrs Chance-Dundas talking over each other at various times. It appeared Mrs Chance-Dundas was becoming frustrated when the Claimant did not answer the question she asked but he talked about other things. Mrs Chance-Dundas told the Claimant off for talking back to his senior when he was challenged. She also made a reference to ‘your attitude stinks’. Towards the end of the transcript Mrs Chance-Dundas lost her temper and told him to shut up and she did not want to hear anymore. In oral evidence Mrs Chance-Dundas said, which I accepted, that she was very frustrated and accepted she should not have said his attitude ‘stinks’, however his attitude had deteriorated.[67]There was a further conversation about the Claimant saying that Sarah treated him like a slave. The transcript showed that Mrs Chance-Dundas was offended by this. The Claimant’s evidence was that he was complaining about Sarah clenching her teeth when she spoke to him and not treating him with dignity. Mrs Chance-Dundas said in the discussion that it was Sarah’s face. Reports in October 2023[68]On 5 October 2023, Mrs Chance-Dundas started a period of sick leave. She returned to work on 31 October 2023 on a phased return.[69]On 28 October 2023, two residents, Resident A and Resident B, made complaints to the activities co-ordinator and a carer, who then reported them to the Nurse in Charge, Nurse Howells. Nurse Howells spoke to the residents and the allegations were reiterated. Nurse Howells then telephoned Ms Cain out of hours and explained what had been alleged. One of the allegations appeared to be of sexual abuse and the other had caused the resident distress. I accepted that Ms Cain had limited information. She decided that the allegations were serious that the most appropriate course of action was to suspend the Claimant. She considered that this would both protect the residents and the Claimant. She instructed Nurse Howells to suspend the Claimant, pending an investigation and to tell him that he must not contact any staff.[70]Ms Cain was not at work and she assumed that someone at Lilleybrook would send a letter of suspension to the Claimant on the Monday. Ms Cain accepted a letter should have been sent. The Claimant accepted that he was told he was suspended and he should not contact his colleagues. He was unable to say why the failure to give him a letter was motivated by his race or religion. The investigation[71]Ms Chance-Dundas started an investigation on her return to work on 31 October 2023. She investigated because she was the home manager. She denied influencing the residents when she took statements from them. The statements set out:a. Resident A needed to use the toilet. The Resident said that the Claimant sat down next to her and had rubber gloves on and began rubbing her face and back grinning. Her friend, who was there, had offered the Claimant a chocolate and when he went over to them asked him to leave. She said other carers wait in her room until she finishes using the toilet. She said she did not want the Claimant to lose his job. Her panic attacks had returned.b. Resident B said she was never washed by a male carer. The Claimant came in an offered a wash. He washed her back and arms. He then started wash under her boobs, however he was not washing it was more like caressing and he was holding them for a long time. She became unsure. He then said he had to wash down below and she said she had done it. The Claimant asked to let him see and insisted twice and she said no. Resident B said she was not aware of what to do. She had seen the Claimant on Saturday and panicked and told her carer who had told the nurse.[72]Resident B had a stated preference for personal care to be conducted by a female only. This was recorded on the PCS. The PCS is an electronic handheld device which is given to each carer. It contains all relevant information about each resident and includes important medical information and important preferences for care.[73]Resident B had told Mrs Chance-Dundas that she had been afraid and ashamed which was why she had not reported it before. Resident B had also been diagnosed as being in the early stages of Lewy Body Dementia. I accepted that she did not have hallucinations or fluctuating cognition and she had never had delusions. She had been assessed as having capacity. All residents are assessed for capacity every 4 weeks, or sooner if there is a doubt as to their capacity.[74]The Claimant accepted that he could not say how the information was obtained from residents A and B.[75]On 3 November 2023, the Claimant was invited to attend an investigatory meeting on 7 November 2023 in relation to allegations made by residents.[76]The investigatory meeting on 7 November 2023 was conducted by Ms Chance-Dundas and Ms Mayo took notes.[77]At the meeting, the Claimant was asked to provide his account. The Claimant’s evidence to the Tribunal suggested that he was not allowed to provide his version and events and was only asked yes/no questions. The Claimant’s covert recording of the meeting showed that he was told what the allegations were and then asked what he said happened. He was able to provide long answers and provide explanations.[78]In relation to Resident A the Claimant said that she had asked him to take her to the toilet and brought her back to her seat. He was then offered a chocolate by Resident B because he made good coffee. He said he did not rub her face or back and he did not laugh.[79]In relation to Resident B he said he did not know that she did not want to have male carers and his senior told him to give her personal care. Ms Chance-Dundas said that a senior was not working that day. He said that he started washing her and she said she had ‘washed already by herself so no more washing’ and she resisted him to wash her bottom. He accepted he gave her top half personal care. He did not insist on washing her bottom half. He denied holding her breasts longer than normal. He said he gave her normal personal care.[80]The Claimant was asked about the instruction to not contact the home, but he had done so. He initially denied contacting the home. He then accepted he had contacted the nurse station and asked whether he could come back to work. He had done this because he was worried. He also contacted a colleague to say that he could not swap shifts with her because he had previously promised he would.[81]Ms Chance-Dundas explained she would consider the evidence and told him he should not contact the home or staff while waiting for the outcome.[82]Ms Chance-Dundas then considered the evidence. She concluded that the Claimant had not taken the matter seriously and had been dismissive about the allegations. He had ignored the wishes of the resident to have female personal care only. He had accepted part of what Resident B had said as happening and only denied part of it. He made the residents feel uncomfortable. She concluded that the allegations had occurred. She also considered that he had failed to follow the instruction not to contact the home and there had been a history of not following management instructions and issues with his behaviour.[83]She then discussed the matter with Ms Cain and Mr Klor. Ms Cain said if she thought she should dismiss she should do so but did not make the decision. The dismissal[84]On 9 November 2023, the Claimant was sent a letter informing him that he was being dismissed, without notice, for gross misconduct. The letter said that his explanations were insufficient and he had not been able to provide reasons to mitigate the circumstances. She had taken into account his employment as a whole and considered alternatives. The reasons given were:(1) improper behaviour that breaches trust and confidence,(2) not following or respecting wishes of residents that did not want personal care from a male carer,(3) when providing personal care to 2 females residents he made them feel uncomfortable and his behaviour was unacceptable, and(4) he failed to follow instructions not to contact colleagues without consent whilst on suspension. He was informed of his right to appeal.[85]Mrs Chance-Dundas did not seek any HR advice before deciding to dismiss the Claimant. She had made them aware of the meeting and the outcome.[86]Mrs Chance-Dundas accepted that she did not arrange a disciplinary meeting after the investigatory meeting. She said she considered it was abuse. She denied that the dismissal was pre-planned or that she had fabricated the allegations. I accepted her evidence that she had previously dismissed three other employees, after an investigatory meeting and without holding disciplinary hearings. Two of those employees were white British and had more than 2 years’ service. The other was black Nigerian and had been employed for about a year. Those employees were of the Christian faith. Appeal[87]On 14 November 2023, the Claimant appealed against the decision. The appeal included the following points:a. Ms Chance-Dundas was not the right person to investigate because from the start of his employment she had been rude to him and had racially harassed him.b. He had always been a lesser person to her.c. He had not received a suspension letter in writing explaining his rights or the next steps.d. He was denied the opportunity to accompanied by a colleague or union representative.e. The allegations were based on non-factual matters.f. He had not done what was alleged and it was fabricated.[88]On 29 November 2023, the Claimant was invited to attend an appeal hearing.[89]On 1 December 2023, the Claimant attended an appeal hearing chaired by Ms Cain. The Claimant was accompanied by a friend, Mr Matthew. Discussion included:a. Ms Chance-Dundas making remarks about his religion and coming from India. He also referred to the incidents involving his pay and the way she had generally treated him.b. He reiterated he had been asked to give Resident B personal care by a senior and he had not known she was female only.c. Discussion took place about his suspension and not being informed of a right to be accompanied at the investigatory meeting.d. The Claimant said he had evidence to back up what he said Ms Chance-Dundas had sent to him. He later sent the recordings to Ms Cain.e. Ms Cain agreed to speak to the residents and consider their capacity.[90]Ms Cain, then spoke to the residents and assessed their capacity. I accepted that Ms Cain was qualified to assess capacity. I accepted that she reviewed their most recent capacity assessments and was happy that there were no deprivation of liberty issues and that there had not been any changes. She was satisfied they both had capacity. They both told her the same things as had been said previously during the investigation. I accepted her evidence that she did not think they had been influenced and they were both very distressed. She did not think the allegations had been fabricated. She considered his failure to follow instructions had contributed to his dismissal.[91]Ms Cain listened to the recordings provided by the Claimant. I accepted that she was only given partial recordings and not every recording for which there was a transcript in the bundle. She considered that Mrs ChanceDundas’ tone was inappropriate. She did not think that Mrs Chance-Dundas was speaking in a racial way and that she was trying to explain why they kept having the same issues repeating, especially with women. Ms Cain thought that the Claimant had been protected by Mrs Chance-Dundas and she had ‘cut him a lot of slack’. She considered that the way he had been spoken to by Mrs Chance-Dundas had come from a place of frustration.[92]On 6 December 2023, the Claimant was sent the outcome of his appeal. The following points were made:a. Ms Cain had spoken to the residents and considered they had full capacity. There were no discrepancies in what she had been told and what was said in the investigation.b. She had listened to the recordings.c. She had not been able to uphold that Ms Chance-Dundas had been racially abusive towards him.d. A reason for his dismissal was his lack of ability to follow reasonable management instructions.e. In recording 3, he was told to shut up on a number of occasions, which was inappropriate but it was not racially motivated. She concluded that he would not answer the questions and kept on interrupting. That meeting had been shut down before it went out of control. The Claimant’s accounts of the allegations of gross misconduct given at the Tribunal hearing[93]In the Claimant’s witness statement he reiterated what he had said at the investigation meeting about resident A. In oral evidence he said he did not do anything improper.[94]In relation to Resident B, the Claimant said in his witness statement that he gave the care in a respectful and dignified manner and the allegations were fabricated. In oral evidence he said that all of the female staff were busy and his senior told him to assist Resident B. The only seniors were Ian and Sarah, however he was unable to say which one of them told him to assist Resident B and suggested that because sometimes they swapped. He was questioned as to why he did not say who it was at the investigation meeting and said it was difficult to remember. He said that he did not know that Resident B’s personal care was to be by a female only. He also said that she had dementia. Time limits[95]The Claimant gave evidence that he had received some legal advice. He did not know about ACAS or the Tribunal until he went to the Citizens’ Advice Bureau after his dismissal. he was concerned about losing his sponsorship and did not start to get advice until after his dismissal. Findings of Fact in relation to the allegations of gross misconduct.[96]The Claimant’s case was that the allegations against him were fabricated and did not accept he had done anything wrong. He adduced no evidence of fabrication and relied upon his assertion. In effect he relied upon the way in which he had been treated throughout his employment. It was significant that when the allegations were made, Mrs Chance-Dundas had been on sick leave for a number of weeks and there was no suggestion that she had any involvement. The Residents’ statements were taken by Mrs ChanceDundas and subsequently re-checked by Ms Cain when she conducted the appeal and they remained consistent. It was also significant that he accepted a great deal of what had been said by Resident B, although he did not accept he had acted inappropriately. I was not satisfied that either resident lacked capacity. I remained aware that a person is presumed to have capacity unless shown otherwise. Both residents had capacity and had given consistent accounts. Further, although the Respondent was concerned about a number of issues during the Claimant’s probationary period, Ms Chance-Dundas decided that his performance was sufficiently satisfactory for him to pass. It was also significant that she had understood his personal situation and the effect of sponsorship and said that was the reason why she had not dismissed him before, due to the effect it would have on his family. These matters pointed strongly away from there being fabrication.[97]There were also aspects of the Claimant’s evidence which were hard to understand, particularly why he was unable to say which senior told him to give Resident B personal care. It was either a male or a female. He was asked about this during the investigation and was unable to say who it was. It was unlikely that he was issued with such an instruction.[98]It was also significant that the Claimant was issued with the PCS. If he had never provided personal care to a resident, the first thing which should be done is to check their care plan. The Claimant failed to check the PCS and proceeded to give resident B personal care.[99]Taking the evidence as a whole, I was satisfied that the Respondent had proved it was more likely than not that the Claimant had committed the acts of misconduct alleged. The Claimant accepted in cross-examination that if they had occurred they would constitute gross misconduct. I was satisfied on the balance of probabilities that the Claimant had committed gross misconduct.
The law
[100]The claim alleged discrimination because of the Claimant's race and/or religion under the provisions of the Equality Act 2010 (“the EqA”). The Claimant complained that the Respondent had contravened a provision of part 5 (work) of the EqA.[101]Under section 13(1) of the EqA 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.[102]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides in section 136(2) that 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. However, by virtue of section 136(3) this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[103]In a claim for direct discrimination, the claim will fail unless the Claimant has been treated less favourably on the ground of his nationality and/or religion than an actual or hypothetical comparator was or would have been treated in circumstances which are the same or not materially different. The Claimant needs to prove some evidential basis upon which it could be said that this comparator would not have suffered the same allegedly less favourable treatment as the Claimant.[104]I approached the case by applying the test in Igen v Wong [2005] EWCA Civ 142 to the Equality Act’s provisions concerning the burden of proof.[105]In order to trigger the reversal of the burden, it needed to be shown by the Claimant, either directly or by reasonable inference, that a prohibited factor may or could have been the reason for the treatment alleged. More than a difference in treatment or status and a difference in protected characteristic needed to be shown before the burden would shift. The evidence needed to have been of a different quality, but a claimant did not need to have to find positive evidence that the treatment had been on the alleged prohibited ground; evidence from which reasonable inferences could be drawn might suffice. As to the treatment itself, I had to remember that the legislation did not protect against unfavourable treatment per se but less favourable treatment. Whether the treatment was less favourable was an objective question. Unreasonable treatment could not, of itself, found an inference of discrimination, but the worse the treatment, particularly if unexplained, the more possible it may have been for such an inference to have been drawn (Law Society-v-Bahl [2004] EWCA Civ 1070).[106]What I was looking for was whether there was evidence from which I could see, either directly or by reasonable inference, that the Claimant had been treated less favourably than others not of his race or religion, because of his race or religion.[107]In Madarassy v Nomura International Plc [2007] EWCA Civ 33 Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. 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 act of discrimination.” The Supreme Court in Royal Mail Group Ltd v Efobi [2021] UKSC 33 confirmed that Igen Ltd and Ors v Wong and Madarassy v Nomura International Plc remained binding authority.[108]In Denman v Commission for Equality and Human Rights and ors [2010] EWCA Civ 1279, CA, Lord Justice Sedley made the important point that the “more” which is needed to create a claim requiring an answer need not be a great deal.[109]The function of the Tribunal is to find the primary facts and then look at the totality of those facts to see if it is legitimate to infer that the acts or decisions were done/made on prohibited grounds (Qureshi v Victoria University of Manchester [2001] ICR 863). In terms of drawing inferences, in Efobi v Royal Mail Group Ltd [2021] ICR 1263 Lord Leggatt, after referring to Wisniewski v Central Manchester Health Authority [1998] PIQR 324, said that, “Tribunals should, as far as possible be free to draw, or decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books before doing so.”[110]In every case the tribunal has to determine the reason why the Claimant was treated as he was (per Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 HL). This is “the crucial question.” It is for the claimant to prove the facts from which the employment tribunal could conclude that there has been an unlawful act of discrimination (Igen Ltd and Ors v Wong), i.e., that the alleged discriminatory has treated the claimant less favourably and did so on the grounds of the protected characteristic. Did the discriminator, on the grounds of the protected characteristic, subject the claimant to less favourable treatment than others? The relevant question is to look at the mental processes of the person said to be discriminating (Advance Security UK Ltd v Musa [2008] UKEAT/0611/07). The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. The mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one (London Borough of Islington v Ladele [2009] IRLR 154).[111]“Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint.[112]The test within s. 136 encouraged me to ignore the Respondent’s explanation for any poor treatment until the second stage of the exercise. I was permitted to take into account its factual evidence at the first stage, but ignore explanations or evidence as to motive within it (see Madarassy-vNomura International plc and Osoba-v-Chief Constable of Hertfordshire [2013] EqLR 1072). At that second stage, the Respondent’s task would always have been somewhat dependent upon the strength of the inference that fell to be rebutted (Network Rail-v-Griffiths-Henry [2006] IRLR 856, EAT).[113]I needed to consider all the evidence relevant to the discrimination complaint, that is(i) whether the act complained of occurred at all;(ii) evidence as to the actual comparator(s) relied on by the claimant to prove less favourable treatment;(iii) evidence as to whether the comparisons being made by the claimant were of like with like; and(iv) available evidence of the reasons for the differential treatment.[114]Where the Claimant has proven facts from which conclusions may be drawn that the respondent has treated the Claimant less favourably on the ground of the protected characteristic then the burden of proof has moved to the Respondent. It is then for the Respondent to prove that it did not commit, or as the case may be, is not to be treated as having committed, that act. To discharge that burden it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic. That requires the Tribunal to assess not merely whether the Respondent has proven an explanation, but that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question.[115]The circumstances of the comparator must be the same, or not materially different to the Claimant’s circumstances. If there is any material difference between the circumstances of the Claimant and the circumstances of the comparator, the statutory definition of comparator is not being applied (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337). It is for the Claimant to show that the hypothetical comparator, in the same situation as the Claimant, would have been treated more favourably. It is still a matter for the Claimant to ensure that the Tribunal is given the primary evidence from which the necessary inferences may be drawn (Balamoody v UK Central Council for Nursing Midwifery and Health Visiting [2002] IRLR 288).[116]If I had made clear findings of fact in relation to what had been allegedly discriminatory conduct, the reverse burden within the Act may have had little practical effect (per Lord Hope in Hewage-v-Grampian Health Board [2012] UKSC 37, at paragraph 32). Similarly, in a case in which the act or treatment was inherently discriminatory, the reverse burden would not apply. Time[117]Under section 123 of the Equality Act 2010 a complaint of discrimination may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates (s.[123](1)(a)). For the purposes of interpreting this section, conduct extending over a period is to be treated as done at the end of the period (s. 123 (3)(a)) and this provision covers the maintenance of a continuing policy or state of affairs, as well as a continuing course of discriminatory conduct. 118. With effect from 6 May 2014 a prospective claimant must obtain an early conciliation certificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings. 119. Section 140B of the EqA provides:(1) This section applies where a time limit is set by section 123(1)(a) …(2) In this section - (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when the time limit set by section 123(1)(a) or 129(3) or(4) expires the period beginning with the day after Day A and ending with Day B is not to be counted.. (4) If the time limit set by section 123(1)(a) or 129(3) or (4) would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) The power conferred on the employment tribunal by subsection (1)(b) of section 123 to extend the time limit set by subsection (1)(a) of that section is exercisable in relation to that time limit as extended by this section. 120. Where the EC process applies, the limitation date should always be extended first by s.140B(3) or its equivalent, and then extended further under s. 140B(4) or its equivalent where the date as extended by s. 140B(3) or its equivalent is within one month of the date when the claimant receives (or is deemed to receive) the EC certificate to present the claim (Luton Borough Council v Haque 2018 ICR 1388, EAT). In other words, it is necessary to first work out the primary limitation period and then add the EC period. The ask, is that date before or after 1 month after day B (issue of certificate)? If it is before the limitation date is one month after day B, if it is afterwards it is that date. 121. It is generally regarded that there are 3 types of claim that fall to be analysed through the prism of s. 123; (i) Claims involving one off acts of discrimination, in which, even if there have been continuing effects, time starts to run at the date of the act itself; (ii) Claims involving a discriminatory rule or policy which cause certain decisions to be made from time to time. In such a case, there is generally a sufficient link between the decisions to enable them to be joined as a course of conduct (e.g. Barclays Bank-v-Kapur [1991] IRLR 136); (iii) A series of discriminatory acts. It is not always easy to discern the line between a continuing policy and a discriminatory act which caused continuing effects. In Hendricks-v-Metropolitan Police Commissioner [2002] EWCA Civ 1686, the Court of Appeal established that the correct test was whether the acts complained of were linked such that there was evidence of a continuing discriminatory state of affairs. One relevant feature, but not conclusive feature was whether or not the acts were said to have been perpetrated by the same person (Aziz-v-FDA [2010] EWCA Civ 304 and CLFIS (UK) Ltd-v-Reynolds [2015] IRLR 562 (CA)). The EAT in Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40, was not persuaded that the conduct had to relate to the same characteristic and provided an example of someone taking against a woman because of her race and sex and demonstrated it by making comments which were sometimes racist, sometimes exist and sometimes both. Nothing could be seen in the statutory language to prevent the entire course of racist and sexist behaviour extending over a period. Similarly there was no reason why conduct extending over a period could not consist of a number of different types of prohibited conduct, e.g. direct discrimination and harassment. (para 13). For there to be conduct extending over a period there must be something in the conduct that involves continuing discrimination. It is not enough that the events are linked and that later events would not have occurred but for the earlier events, there must be something in the conduct that involves continuing discrimination (para 31).; 122. It is clear from the following comments of Auld LJ in Robertson v Bexley Community Service that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard: "It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule". These comments have been supported in Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT and Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA. However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law does not require exceptional circumstances: it requires that an extension of time should be just and equitable - Pathan v South London Islamic Centre EAT 0312/13. 123. A tribunal considering whether it is just and equitable to extend time is liable to err if it focuses solely on whether the claimant ought to have submitted his or her claim in time. Tribunals must weigh up the relative prejudice that extending time would cause to the respondent on the one hand and to the claimant on the other: see Pathan and also Szmidt v AC Produce Imports Ltd UKEAT 0291/14.[124]No one factor is determinative of the question as to how the Tribunal ought to exercise its wide discretion in deciding whether or not to extend time. However, a claimant’s failure to put forward any explanation for delay does not obviate the need to go on to consider the balance of prejudice Breach of contract in respect of notice pay.[125]Under the Employment Tribunals (Extension of Jurisdiction England and Wales) Order 1994 an employee may bring a claim for breach of contract.[126]The contractual provisions for the amount of notice may vary, but must not be less than the statutory minimum.[127]Where an employee is dismissed without notice and the Respondent says that it is justified because gross misconduct had occurred. The Respondent must prove that gross misconduct occurred.[128]The Employment Appeal Tribunal in Sandwell & West Brimingham Hospital NHS Trust v Westwood UKEAT/0032/09 considered what constitutes gross misconduct. Para 110 -112. [“[110] … In our judgment the question as to what is gross misconduct must be a mixed question of law and fact and that will be so when the question falls to be considered in the context of the reasonableness of the sanction in unfair dismissal or in the context of breach of contract. … [111] Gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee: see Wilson v Racher [1974] ICR 428, CA per Edmund Davies LJ at p 432 (citing Harman LJ in Pepper v Webb [1969] 2 All ER 216, [1969] 1 WLR 514 at 517) “Now what will justify an instant dismissal? – something done by the employee which impliedly or expressly is a repudiation of the fundamental terms of the contract” and at p 433 where he cites Russell LJ in Pepper (p 518) that the conduct “must be taken as conduct repudiatory of the contract justifying summary dismissal”. In the disobedience case of Laws v London Chronicle (indicator Newspapers) Ltd [1959] 2 All ER 285, [1959] 1 WLR 698 at p 710 Evershed MR said “the disobedience must at least have the quality that it is 'wilful': it does (in other words) connote a deliberate flouting of the essential contractual conditions”. So the conduct must be a deliberate and wilful contradiction of the contractual terms. [112] Alternatively it must amount to very considerable negligence, historically summarised as “gross negligence”. A relatively modern example of “gross negligence”, as considered in relation to “gross misconduct”, is to be found in Dietman v LB Brent [1987] IRLR 259, [1987] ICR 737 at p 759.”][129]In Wincanton plc v Atkinson UKEAT/0040/11, the EAT held that it was appropriate to take into account the potential harm or damage even when no actual harm was caused. Conclusions Claims of direct discrimination
Conclusions
[130]The Claimant in his written closing submissions made reference to claims of harassment and indirect discrimination. He had not referred to such claims before and did not seek to amend his claim. Such claims were not before the Tribunal.[131]The Claimant did not give evidence about, or rely upon, any actual comparator. He therefore relied upon a hypothetical comparator. The appropriate comparator would be someone who was in their probationary period, who had a similar level of experience, who had displayed similar behaviour and who had made similar statements about women and taking instruction from them. The hypothetical person would need to be of a different nationality and have a different faith or have no faith.[132]This was not an easy case to decide. Before considering the individual allegations, I considered the following general matters.[133]The Claimant relied on transcripts which were snapshots of events. The Tribunal was not provided with whole transcripts of all recordings. It was also significant that not every interaction was either recorded or provided. There were occasions in the recordings in which Mrs ChanceDundas shouted at the Claimant, however I accepted that she would also shout at other members of staff if she was annoyed with them. There were some contemporaneous written records. Those records identified that there were significant concerns about the Claimant’s attitude, work ethic and the way in which he behaved. Those concerns were sufficiently significant that his probation period was extended, however they were also concerns which could have justified the probation period not being extended and his employment brought to an end. Even when the probation period was completed, the Claimant was still told that he needed to continue to improve. The Claimant submitted that the various concerns were only being raised as a way of trying to defeat his discrimination claim, I rejected that contention. The supervision records demonstrated that there were concerns at the time and were such that his probation period was extended. Even when he passed his probation period concerns remained and he was told he needed to continue to improve.[134]The Claimant also made references to a lack of CCTV evidence. I accepted the Respondent’s evidence that the only place there was a camera was in reception and the CCTV had never worked. In any event it is generally the case that CCTV footage is only kept for a limited time. The first time the Claimant raised this issue was at the Tribunal hearing. This was not something from which any inference could be reasonably drawn.[135]It was also relevant to consider that when the Claimant was given an answer he did not like, he would continue to ask the same question and closely follow people after having been given it. It was likely that this would be the cause of significant frustration to those on the receiving end of it.[136]I remained aware that unreasonable treatment of itself is not enough to found an inference of discrimination.[137]In the present case the discussions about prayers and the conversation on 18 May 2023 were things which could be seen to have some connection to either the Claimant’s religion or nationality.[138]In terms of the discussions about prayers there was a dispute as to what was said. The Respondent had a duty to keep its residents safe and part of this requires it having sufficient staff looking after the residents at all times. Accordingly the timing of breaks is important in order to ensure that the resident to staff ratio is correct. When the Claimant first asked Mrs Chance-Dundas about taking a Friday off, so he could go to Friday prayers, he had asked the day before that Friday. Rather than refusing, Mrs ChanceDundas rearranged the rota so that the Claimant’s shift finished earlier so that he could attend the Mosque. This was not something which tended to suggest that he was being treated worse than someone from a different religious background. Similarly in relation to the discussion with Ms Cain, she did not have an issue with him taking a Friday off, but she was concerned about finishing early on a Thursday and starting late on a Saturday, because it would interfere with shift patterns and the staffing of the home. This was also not something which tended to suggest that he was being treated worse than someone from a different religious background or nationality. The discussion with Khobosie was also of assistance in that she was also a practising Muslim and she had explained to the Claimant the importance of not leaving the residents at risk and to pray in his break times and if outside of his break times to ask permission first. I was satisfied that the Respondent proved that it was not against the Claimant observing his requirements to pray, however they were concerned to avoid being short staffed at points in time during shifts. Praying during break times and seeking permission before taking a prayer break outside of break times was to ensure resident safety. I was satisfied that any staff member wanting an additional break, for example to smoke a cigarette, would have to seek permission first. The discussions, were however something which were about aspects of the Claimant’s religious belief and therefore something which could potentially shift the burden of proof. However I was satisfied that the Claimant was not prevented or stopped from undertaking prayer, the reason for the discussion was to ensure that there was always sufficient cover on the residents’ floors at all times. Anybody wanting an additional break needed to seek permission first and I was satisfied that an appropriate comparator would not have been treated differently.[139]The conversation on 18 May 2023 was important, there were direct references to Islam and the Claimant’s nationality. This was something which called for an explanation from the Respondent. The specific allegations of discrimination In June 2023 was Ms Kim Dundas, the Home Manager, was rude to the Claimant stating, “You are Muslim and you come from India, and because of your culture you cannot work under a woman”?[140]The Respondent submitted that these were not the words actually used and the date was not June but 18 May 2023 and there had not been an application to amend. The date in the list of issues was clearly a mistake and what was said in the conversation was broadly similar to the summary of the allegation. The Respondent had always understood what was being alleged and provided its account. This was not a situation in which what was being alleged was so different to the evidence that it changed the nature of the case. To the extent that an application to amend the claim was required, there was no prejudice to the Respondent, whereas there was significant prejudice to the Claimant if it was refused, and such an application would have been granted.[141]During the conversation Mrs Chance-Dundas made specific reference to the Claimant’s culture and that “where you come from in India, and because you are Muslim, women should not talk to you.” She also said that he did not want anyone junior to talk to him and he felt they were bossy and did not want them to give him instructions, especially if it was a woman. She also said that he should forget his culture. This was an incident in which Mrs Chance-Dundas was making direct reference to his nationality and religion and saying he should forget his culture. This was something which could tend to suggest that an appropriate comparator might have been treated differently and it shifted the burden of proof onto the Respondent.[142]Another significant part of the conversation was in relation to sponsorship. The Claimant said that it was a threat to him, however I rejected that contention. Mrs Chance-Dundas explained that she had come to the UK on a sponsorship scheme and she understood what the consequences would be if he was dismissed. She specifically said that she had not dismissed him before because she knew he was on a sponsorship scheme and if he had been, what the financial effect and impact on his family would be. This was something said out of kindness and was something which tended to show that Mrs Chance-Dundas was seeking to help and protect the Claimant.[143]The conversation itself cannot be looked at in isolation. There was a relevant background to it. The Claimant had previously told Mrs ChanceDundas that he did not do what Ruchicka had asked because she was just a girl and not his senior. He also said ‘back home women don’t tell men what to do or give them instructions’. The Claimant had made similar comments to Mr Lund. There was also a pattern of behaviour in which the Claimant was less likely to do something when asked by a female of the same or lower seniority to him, than if asked by a male. There were occasions when he had refused to provide help when requested by female colleagues.[144]The appropriate comparator is someone who had said similar things to the Claimant had said, was less likely to do what had been asked to be done by a female and who had also refused to assist female colleagues.[145]A female employee should not be treated any less favourably than a male employee. The Respondent has a duty towards all of its employees and also has to ensure that the residents for whom cares are properly and safely looked after. If an employee is refusing to assist another employee that is something which could put a resident and/or potentially the colleague at a risk of harm if they are not assisted. The Respondent operated a business in which staff need to cooperate and assist each other.[146]I was satisfied that the Respondent proved that the reason why Mrs Chance-Dundas said what she did was because the Claimant had previously expressed that in his homeland men did not take instructions from women. Mrs Chance-Dundas made reference to a cultural thing rather than a specific directed at the Claimant. I accepted that the Respondent had proved that she was trying to encourage the Claimant to treat his female colleagues in the same way that he would treat a male and to put aside the cultural aspects he had referred to in their previous conversation. I was satisfied that if an appropriate comparator who was of British nationality and of a different religion had expressed similar sentiments and had also refused to do things when asked by women they would have been treated in the same way. I was satisfied that the reason why Mrs Chance-Dundas said what she did was to try and ensure that men and women were not treated differently at work and that were treated equally. I was satisfied that the Respondent had proved that what was said was in no way whatsoever motivated by the Claimant being an Indian national or a member of the Muslim faith.[147]This allegation was dismissed. In August 2023, did Mrs Dundas refuse to respond to the claimant’s questions in that(a) when the Claimant went to the office to clarify an issue over pay, did Ms Dundas stamp her foot and say “Don’t come to me” whilst allowing other staff to approach her, and(b) the next time the Claimant went to her office she said told him not to come to her office and she was going to call the police.[148]The discussions about pay occurred in July 2023. The Claimant had not been paid for 2 hours in May and 3 hours in June. I accepted that responsibility for paying employees lay with payroll. Further payroll calculated the amount of pay due to an employee based on the clocking in records. When the Claimant raised on 4 July 2023 that he had not been paid for 3 hours, Mrs Chance-Dundas contacted payroll and was asked to show him what had happened, which she did. When Mrs Chance-Dundas took the telephone call and asked the Claimant to return downstairs, he did not do so and continued to try and talk to her about his pay.[149]I accepted that the Claimant frequently would continue to try and discuss matters when he had not received the answer he wanted. I also accepted that this was a source of frustration for Mrs Chance-Dundas. She told him to leave because she was on the telephone. The Claimant then returned a within a couple of minutes and tried to continue the conversation, when Mrs Chance-Dundas did not have his payslip. I accepted that she raised her voice, however she did not stamp her foot. I did not accept that she said she would call the police or threaten to slap him.[150]In the later conversation about the Claimant’s start date, Mrs Chance-Dundas showed the Claimant the notice board with start dates on it and referred to his contract, which was dated 28 December 2022. She shouted at him to leave her office. I did not accept that she said she would call the police or threaten to slap him.[151]The Claimant did not say specifically what evidence tended to show that the treatment of him was motivated by his religion and/or nationality. The matters which could have potentially shifted the burden of proof were the discussion on 18 May 2023, which I found was not racially or religiously motivated; or alternatively the discussions he had in relation to prayers, for which I accepted that the reason why the discussions took place was to ensure there was also sufficient staff cover to keep the residents safe. The Claimant also suggested that the way he was being treated generally was something which showed that the reason was his nationality or religion. I accepted that Mrs Chance-Dundas would raise her voice and/or shout at any member of staff who had made her cross. The claimant was not treated any differently in this respect. I was not satisfied that the Claimant had adduced primary facts which tended to show that Mrs Chance-Dundas’ response in July and August 2023 were motivated by his nationality or religion.[152]In any event, it was relevant that the Claimant had a tendency to follow people and try to continue to have a conversation when he had received an answer he did not like. I accepted that this was something which caused a great deal of frustration. I accepted that in the discussion in July 2023 Mrs Chance-Dundas proved that she had done what payroll asked her to do. When the Claimant tried to continue the conversation, when she needed to take the telephone call, she became frustrated. I accepted that she proved that the reason for the treatment was that the Claimant was trying to continue the conversation when she needed to do something else. This was a pattern which repeated itself with the Claimant frequently not accepting that a conversation was at end. I was satisfied that the Respondent proved that it was the Claimant’s personality trait which was the reason for what she said and the Claimant’s nationality and/or religion had no influence whatsoever.[153]Similarly I was satisfied that in August 2023 Mrs Chance-Dundas was relying on the contract she had been given and the staff records. She proved that it was the Claimant continuing to insist that he had started on 26 December 2022, when the documentation she had shown him suggested otherwise, that had caused her to tell him to leave her office. I was satisfied that the Respondent had shown that the Claimant’s nationality and religion had no influence whatsoever.[154]This allegation was dismissed. The respondent failed to give the Claimant a suspension letter or otherwise set out his rights in writing, inform the claimant of the procedures being followed or explain the next steps.[155]Ms Cain authorised the suspension and told Nurse Howells to suspend the Claimant on 28 October 2023. It was relevant that at the time, Mrs Chance-Dundas was on sick leave. Ms Cain had made the decision out of hours after she had been telephoned.[156]The Claimant needed to prove facts which tended to show that the failure to send him a suspension letter was because of his nationality and/or religion. The only possible thing that the Claimant could point towards there being any religious motivation by Ms Cain, is the conversation he had with her about prayers. Ms Cain did not have any issue with the Claimant taking a Friday off to attend Friday prayers, what she was concerned about was the Claimant making a request to alter his Thursday and Saturday shifts so that he could visit family. I was satisfied that the Claimant’s nationality or religion played no part in what she had said to him.[157]I was not satisfied that the Claimant proved primary facts which tended to show the failure to send him a suspension letter informing him of his rights was caused or motivated by his religion or race.[158]The Claimant sought to suggest that consideration had not been given to protecting him. The allegations made against the Claimant were very serious. It would be difficult to see how a reasonable employer faced with such allegations would not be able to suspend a health care assistant pending an investigation.[159]In any event, I was satisfied that Ms Cain proved that she had assumed a letter would be sent by the home and she had therefore not done anything. I was satisfied that the Claimant’s nationality or religion played no part in this and the reason was simply there had been an incorrect assumption and a lack of communication.[160]This allegation was dismissed. The disciplinary allegations made against the Claimant were not based on fact and were fabricated in order to dismiss him.[161]The Claimant’s case in relation to this issue was based on an assertion that the allegations against him were fabricated and that he did not accept that what had been alleged had occurred. An assertion or belief is not the same thing as proving facts which tend to show discrimination has occurred. The appropriate comparator would need to be facing similar allegations.[162]The Claimant sought to rely on Resident B being diagnosed with Lewy Body Dementia. During the hearing, the Claimant read out parts from an internet search about the condition. He was not someone who was medically qualified and there was no medical evidence about Resident B. Further the symptoms relied upon by the Claimant were based on a generality, rather than those suffered by the specific resident. The Claimant adduced no evidence that she suffered from delusions, hallucinations or fluctuating cognition. It was relevant that all residents were assessed for capacity every 4 weeks or sooner if thought appropriate. I accepted the Respondent’s evidence that Resident B was in the early stages of dementia and she was not suffering with the symptoms outlined by the Claimant.[163]The Claimant also asserted that the residents had been influenced by the staff in the investigations. There was no positive evidence adduced to support that assertion. Further the Claimant accepted that some of things said by the residents had occurred, in that he had provided them care.[164]It was important to note that Mrs Chance-Dundas had been on sick leave for about 3 weeks when the allegations came to light. There was no evidence to support a suggestion that Mrs Chance-Dundas had any involvement in nurse Howells raising the matters with Ms Cain, or the staff members raising them with nurse Howells.[165]Accordingly the allegations had been made independently of Mrs Chance-Dundas.[166]The Claimant suggested that Mrs Chance-Dundas should not have investigated the allegations. Mrs Chance-Dundas was the home manager and therefore normally would be the appropriate person to investigate. The Claimant did not raise any objection at the time of the investigation and only raised matters against her during the appeal stage.[167]I was satisfied that Mrs Chance-Dundas asked the residents what had happened and recorded what they said. Further at the appeal stage, Ms Cain checked the capacity of Residents A and B and checked again what they said happened. Their accounts remained the same.[168]I also accepted the Respondent’s submission that to concoct two allegations in relation to vulnerable residents was farfetched. Such allegations not only call into question the Claimant’s conduct but also the systems in place at the care home. The Respondent is a regulated care home and any such incidents would be of concern to the regulator and could cause potential reputational damage to the Respondent.[169]I was not satisfied that there was not any evidence that the allegations were fabricated against the Claimant. The Claimant failed to prove the factual basis of the allegation.[170]In any event there was no evidence to suggest that an appropriate comparator would not have been investigated or that nationality or religion played any part in the decision to investigate.[171]This allegation was dismissed. On 7 November 2023, the Claimant was not given an opportunity to explain his account in relation to the disciplinary allegations at the meeting[172]The Claimant provided a transcript of the meeting. That transcript showed that he was asked for his account of what had happened and that he gave full explanations and responses. He was also asked more specific questions, however I rejected that he was only asked yes/no questions. The allegations were fully aired and explored. The Claimant did not prove the factual basis of the allegation.[173]In any event the Claimant did not adduce any evidence which tended to show the way in which he was asked questions was motivated or influenced by his nationality or religion.[174]This allegation was dismissed. On or about 9 November 2023 the respondent dismissed the Claimant; the Claimant argues that the decision to dismiss him was predetermined[175]The Claimant was dismissed on about 9 November 2023.[176]A surprising feature of the case was that the Respondent held an investigatory meeting with the Claimant and then rather deciding whether there was a case to answer, moved to dismiss him without a disciplinary meeting. I accepted that there is not a requirement for an employee to be accompanied at an investigatory meeting by a colleague or union representative, however there is such a right at a disciplinary hearing. It was relevant to consider that the Claimant did not have sufficient service to claim unfair dismissal and therefore the fairness or otherwise of the process does not determine the issue. In this case the issue is whether or not the appropriate comparator would have been treated differently and the reason for that treatment. The failure to hold a disciplinary hearing is something which, on its own, could be something to suggest something untoward had happened. However, Mrs Chance-Dundas had previously dismissed three other employees after an investigatory meeting and without holding a disciplinary hearing. Two of those employees were white British and the other was black Nigerian. All were of the Christian faith. This was something which Mrs Chance-Dundas had done before and in relation to the British employees they had two years’ service. There appeared to be a fundamental misunderstanding by Mrs Chance-Dundas of the procedure that she should follow. After the investigatory stage she considered that the allegations were proven. She did not seek HR advice and had she done so the procedure may have been different.[177]At the investigation meeting the Claimant was asked for and gave a full account of what he said happened. It was notable that even at the hearing before the Tribunal, his account was broadly the same as the investigatory meeting.[178]Mrs Chance-Dundas had been able to assess what she had been told by the Residents and what the Claimant had said to her. The Claimant did not have two years’ service and the Respondent did not seek to simply terminate his employment relying on the provisions of the contract, it undertook an investigation. The conducting of the investigation pointed away from the decision being pre-determined.[179]It was also significant that the complaints were made when Mrs Chance-Dundas was on a 3 week period of sick leave. There was no suggestion, in any of the evidence, that Mrs Chance-Dundas had any involvement in the allegations being made to the Respondent.[180]The Claimant also raised that Ms Cain had been involved in a discussion with Mrs Chance-Dundas before his dismissal. I accepted that Ms Cain did not make the decision and simply said that if Mrs ChanceDundas thought she should dismiss the Claimant she should do so.[181]Ms Cain, at the appeal stage, took on board what the Claimant had said about the residents. She spoke to both residents and was satisfied they both had capacity and that their accounts had remained the same. The additional investigation at the appeal stage further pointed away from the decision being pre-determined.[182]I was not satisfied that the decision was predetermined.[183]The Claimant effectively relied on the incidents occurring throughout his employment as tending to show that the decision was discriminatory. For the reasons set out above the discussion about culture was not an act of discrimination and in any event there is no suggestion that it was a feature in the investigation or the decision making process. There had been a history of behavioural and attitude matters during the Claimant’s employment however he was not dismissed for those earlier matters.[184]The allegations against him involved his treatment of two residents. I was satisfied that if such allegations were made against any employee, the Respondent would have investigated. I accepted that Mrs ChanceDundas believed that the incidents had occurred and because of the nature of the allegations she considered they were gross misconduct. When Ms Cain conducted the appeal she also concluded that the incidents had happened and they were gross misconduct. The Claimant adduced no evidence that tended to show an appropriate comparator would have been treated differently on the basis of such findings.[185]I was satisfied that the Respondent proved that the reason for the Claimant’s dismissal was that it was genuinely believed he had committed the acts alleged and it would have treated any employee facing the same allegations in the same way.[186]This allegation was dismissed. Wrongful dismissal claim[187]The claimant was contractually entitled to a month’s notice, once he had completed his probationary period. He could be dismissed without notice for gross misconduct. The Claimant accepted that if such allegations had occurred they would constitute gross misconduct.[188]As set out in my findings of fact, I concluded that the Respondent had proved that the acts of misconduct alleged against the Claimant had occurred. The nature of the acts were such that they interfered with the dignity and wishes of the Residents. The Residents were vulnerable people and the Claimant was in a position of trust. I accepted that the conduct was so serious that it amounted to gross misconduct. Accordingly the Respondent was entitled to dismiss the Claimant without notice.[189]His claim for wrongful dismissal was therefore dismissed. Overall conclusion[190]Accordingly, the Claimant’s claims of direct discrimination and wrongful dismissal were dismissed.