Mr F Wabwire v Stepping Stones Resettlement Ltd: 6011779/2024

EMPLOYMENT TRIBUNALS

Case No 6011779/2024

Between

Mr F WabwireClaimant

Stepping Stones Resettlement LtdRespondent

Before

Employment Judge Livesey

In person for claimant

Mr Ottley (instructed by solicitor) for respondent

Mr M Ottley (instructed by Solicitor) for respondent

Date 31 March 2026

JUDGMENT

[1]The Claimant’s complaints of unlawful deductions from wages and unpaid holiday pay are dismissed upon withdrawal.

[2]The Claimant’s complaint of discrimination on the grounds of race in respect of the alleged incident of 14 September 2023 is struck out under rule 38 (1)(a), (b) and/or (c) for the reasons set out in the Case Summary of even date.

[3]The remaining claims proceed in accordance with the Order and Case Summary of even date.

REASONS

[1]The Claimant was employed by the Respondent as a support worker from 14 December 2022 until his dismissal on 14 June 2024.

[2]He claims he was discriminated against on the ground of race because: - He was not appointed to the role of Night Team Leader in June 2024 - He was dismissed on 14 June 2024 Case No: 6011779/2024

[3]The Tribunal heard evidence from the Claimant and for the Respondent, heard from Mr James, Registered Manager, and Mr Neely, Human Resources Manager.

[4]The Respondent had a vacancy for a Night Team Leader which was advertised both internally and externally in May 2024. The Claimant applied and was interviewed. Other candidates interviewed included black, white and Philipino candidates. The successful candidate, Mr Gwaze, was a Black African of Zimbabwean heritage. The Tribunal did not accept the Claimant’s assertion that the role had been given to a white person, Mr Dean, who, according to the Claimant, commenced the role before he was interviewed. The evidence of Mr James was that Mr Dean did not apply for the role, and the evidence bundle included interview notes for Mr Gwaze and a letter dated 17 June 2024 offering him the job.

[5]The Claimant was not interviewed by Mr Neely because, in April 2024, the Claimant sent Mr Neely a text message suggesting he was racist. Mr James had asked the Claimant to reflect on this accusation, which the Claimant did. By email of 4 June the Claimant said he had reflected and he did not regard Mr Neely as racist. He apologised for any misunderstanding. Since that retraction, no further or similar allegations were made by the Claimant.

[6]In June 2024 a number of concerns were raised by service users and staff about the Claimant’s conduct. On or around 7 June a service user MF reported to Mr James that the Claimant had refused to give him personal care. On or around 8 June it was reported that the Claimant had given coke and biscuits to a service user in contravention of their care plan. A colleague alleged that the Claimant had been asleep on the night shift of 8-9 June. It was alleged by a service user that on the same shift the Claimant had punched him in the face. The Respondent undertook an immediate investigation in view of the seriousness of this allegation. The Claimant was interviewed on 13 June. On 14 June he was dismissed, the Respondent having reasonably believed the acts alleged took place. Law Time Limits

[7]Time limits are dealt with at Section 123 Equality Act 2010 which states:(1) Subject to sect ions 140A and 140B, Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. Section 140B includes: Case No: 6011779/2024

(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. Direct Discrimination

[8]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.

[9]A claim will fail unless the claimant has been treated less favourably on the ground of his race than someone else was or would have been treated in circumstances which were not materially different. The claimant needs to prove some evidential basis upon which it could be said that a comparator would not have suffered the same allegedly less favourable treatment or establish facts from which it could be inferred that race was the reason for the unfavourable treatment.

[10]The Claimant has not named an actual comparator. The Tribunal, having heard submissions, considered that there was no-one in substantially the same circumstances as the Claimant – namely someone who was unsuccessful in being appointed as a night Team Leader and who was dismissed for misconduct. There was no-one whose circumstances were close enough to allow an effective comparison: Hewage v Grampian Health Board

[2012] UKSC 37

. Case No: 6011779/2024

[11]The Tribunal reminded itself that the crucial question in every direct discrimination case is: What is the reason why the claimant was treated as he/she was? Was it because of the protected characteristic? Or was it wholly for other reasons? The court in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

suggested that it is often simpler to go straight to that question without getting bogged down in debates over who the correct hypothetical comparator should be. The Tribunal took this approach.

[12]The Tribunal in its deliberations was cognisant that discrimination may be sub-conscious – Nagarajan v London Regional Transport

[1999] IRLR 572

[13]It also bore in mind that the protected characteristic need not be the only reason for the less favourable treatment. It may not even be the main reason. Provided that the decision in question was significantly (that is, more than trivially) influenced by the protected characteristic, the treatment will be because of that characteristic.

[14]S136 Equality Act deals with the burden of proof. As confirmed in Ayodele v Citylink Ltd, section 136 EqA imposes a two-stage burden of proof. Under Stage 1 the burden is on the employee to prove from all the evidence before the Tribunal facts which would, if unexplained, justify a conclusion not simply that discrimination was a possibility, but that it had in fact occurred. Under Stage 2 the burden shifts to the employer to explain subjectively why it acted as it did. The explanation must be sufficient to satisfy the Tribunal that the reason had nothing to do with the protected characteristic.

[15]The bare fact of less favourable treatment than a comparator only indicates a possibility of discrimination. There must be something more for the tribunal to be able to conclude that there is a probability of discrimination such that the burden of proof shifts to the respondent: Madarassy v Nomura International Plc

[2007] ICR 867

CA. The focus should be on the employer’s conscious or subconscious reason for treating the worker as they did; Nagarajan. The protected characteristic needs to “significantly influence” the less favourable treatment so as to be causally relevant. However, sight should not be lost of the fact that the less favourable treatment and reason why issues are intertwined and essentially two parts of a single question (Shamoon). Harassment

[16]The definition of harassment is found in section 26 of the EqA. A person(a) (A) harasses another

(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or Case No: 6011779/2024 effect of violating B's dignity, or creating an intimidating, hostile, degrading, and humiliating or offensive environment for B.

[17]The assessment of the purpose of the conduct at issue involves looking at the alleged discriminator’s intentions. In deciding whether the conduct in question has the effect referred to, the tribunal must take into account the perception of B; the other circumstances of the case, and whether it is reasonable for the conduct have that effect (s26(4) EqA).

[18]Whether unwanted conduct has the proscribed effect is matter-of-fact to be judged objectively by the Tribunal. It is well established that not all unwanted conduct is capable of amounting to HARASSMENT a violation of dignity, or being described as creating an intimidating, hostile, degrading, humiliating or offensive environment.

[19]On the question whether conduct is “related to” a protected characteristic, in Unite the Union v Nailard

[2018] EWCA Civ 1203

the Court of Appeal explained that the words “related to” in section 26 EqA encompass both actions which are “caused by” the protected characteristic, and those “associated with” the protected characteristic. Duplication of Direct Discrimination and Harassment:

[20]The allegations raised by the claimant are presented as both harassment and direct discrimination. The Tribunal decided that it would in the first instance consider them as allegations of harassment. If either were proved, that allegation would then be dismissed as an allegation of direct discrimination because under section 212(1) EqA the definition of detriment does not include conduct which amounts to harassment. In so far as harassment was not proved, the tribunal would go on to consider the allegations of direct discrimination. Application of law to facts

[21]Time limits – given the dates of early conciliation (ACAS notification 9.9.24, certificated 13.9.24) and the date the ET1 was filed (15.09.24), any act or omission before 10 June 2024 is potentially out of time.

[22]The dismissal on 14 June 2024 has been brought in time, however the allegation about the Night Team Leader role is less clear cut. The Claimant was interviewed on 3 June 2024. The evidence was that he was not formally notified of the outcome. There was no direct evidence as to the date he found he had been unsuccessful. As the successful candidate was informed by letter dated 17 June 2024, the Tribunal determined that the Claimant’s date of knowledge was likely to have been on or shortly after that date (notwithstanding he disputed that the person the Respondent evidenced appointing was the person who got the role). As such, the Tribunal proceeded on the basis that this complaint was brought in time. Case No: 6011779/2024 Harassment

[23]It is not disputed that the Respondent did not appoint the Claimant as Night Team Leader, or that this was unwanted conduct. The question is whether the decision to appoint a Black African person of Zimbabwean heritage and not the Claimant, was related to the Claimant’s race, namely Black African of Ugandan heritage.

[24]Whilst the Claimant disputed that a Black African person had been appointed to the role, and believed that it had been Mr Jesse Dean, a white person, the Tribunal found, as stated above, that the person offered the role was Mr Gwaze.

[25]A concern raised by the Claimant was that the person he believed had been appointed to the role (Mr Dean) had already been selected for it before he was interviewed. There was no evidence to support this, although there was evidence that both Mr Dean and the Claimant had acted up as team leaders. The Tribunal accepted Mr James’ evidence supported by documentary evidence, which was that the successful candidate, Mr Gwaze, was interviewed on 30 May, after the date the Claimant says that Mr Dean was in the role, 27 May.

[26]As this assertion by the Claimant was not proved as a fact, no inference could be drawn that race played a part in the Respondent’s decision. Indeed, the Claimant provided no evidence from which the Tribunal could draw an inference that race either consciously or subconsciously played a role in the Respondent’s decision-making.

[27]As to the reason for the decision not to appoint the Claimant, Mr James gave evidence that he interviewed the Claimant on 3 June 2024. The Claimant was unable to demonstrate sufficient knowledge or relevant experience for the role; his answers lacked the basics that Mr James would expect for someone with his qualification and experience. Mr James believed that the Claimant was aware by the end of the interview that he had not performed to the required standard and this led to Mr James concluding the interview by saying to the Claimant that he would only be in touch if the Claimant were offered the role.

[28]The Tribunal found Mr James to be a reliable witness and it accepted his evidence that the Claimant’s performance at interview meant he did not demonstrate he had the necessary knowledge and experience. The reason was related to the Claimant’s poor interview performance, and Mr Gwaze’s significantly better interview performance. Further, the Tribunal took into account that Mr Gwaze is also Black African. This meant it was simply not logical for the Claimant to assert that the decision not to appoint him was related to him being Black African. Case No: 6011779/2024

[29]As the Claimant has not established primary facts from which it could be concluded that this conduct was related to his race, he had failed to discharge his burden of proof. The burden did not reverse (albeit that the Respondent had provided an explanation consistent with race playing not part) and Tribunal did not need to consider whether the conduct had the purpose or effect of violating the Claimant's dignity, or creating an intimidating, hostile, degrading, and humiliating or offensive environment.

[30]The second act that the Claimant relies on is his dismissal. Again, there was no dispute that this was unwanted conduct. The question is whether it was related to race.

[31]The Claimant’s dismissal letter gave the following reasons for terminating his employment: - Punching a service user in his care, resulting in a black eye; - Refusing to give a service user a glass of squash, believing water was in her best interests and telling her that people in his home country drink from ponds; - Having been found asleep on shift on 8 and 9 June 2024; - Asking a colleague to sit on his lap, although that had also been denied by the colleague; - Failing to provide a service user with personal care and not having read their care plan; - Bringing coca-cola and biscuits for a service user, contrary to their care plan.

[32]The Claimant disputed each of these matters. However, based on the contemporaneous documentation including investigation meeting notes, the Tribunal was satisfied that the Respondent had a reasonable belief that the Claimant had acted as alleged, save in relation to the fourth reason, asking a colleague to sit on his lap. By the date of the hearing the Respondent was not relying on this allegation, Mr Neely stating that it could not be proved as it had been one person’s word against that of another.

[33]In relation to the assault, Mr Neely, who made the decision to dismiss had photographic evidence of bruising to the face and eye of the service user and a statement from the service user saying that the Claimant had hit him. There was also a statement from the staff member to whom the service user had reported the assault. Later, the service user also provided a consistent account to Mr James. The evidence of Mr Neely was that the service user had no history of entirely fabricating allegations. The Tribunal accepted the Respondent’s evidence that, when it dismissed the Claimant, it had a reasonable belief that the Claimant had assaulted the service user. Case No: 6011779/2024

[34]With regard to the refusal to give a service user a drink of squash, the investigation concluded that the Claimant considered that it was in the service user’s best interests to have water rather than squash. The Respondent’s position this was not a decision for the Claimant to make. The Claimant had stated during the investigation meeting that the rate at which the service user was consuming squash was not good for her. As to the pond comment, the Claimant denied saying those words. However the Respondent had a statement from Mr Dean in which he said he heard the Claimant make the comment. The Tribunal was satisfied that the Respondent’s decision to find this allegation proved was evidence based.

[35]As to the Claimant sleeping on shifts, Mr Neely had photographic evidence of this, two staff members had reported the Claimant having been asleep on these dates, and also previously. The documentary evidence, and Mr James’ evidence was that the Claimant gave contradictory answers when asked about it in the investigation meeting. At the hearing, the Claimant denied that he had been asleep, but also said in evidence that no-one woke him, so was again inconsistent in his account. The Tribunal was satisfied that the conclusion that the Claimant had committed misconduct was a reasonable belief formed after an investigation.

[36]The Claimant disputed that he had given a service user coca-cola and biscuits, but admitted that the service user had a can of pepsi, which he said the service user found in a fridge in neighbouring accommodation that the Claimant had taken him to. During the investigation meeting the Claimant admitted that he had not read the service user’s care plan, which recorded a clear link between sugary food and drink and very significant disruptive behaviour. The Claimant’s justification for giving the service user the drink was that this was not illegal. The Tribunal was again satisfied that the Respondent had reached an evidence based conclusion in finding this allegation proved.

[37]As to the refusal to provide personal care, the evidence was that the service user was unkempt and smelled of body odour. Based on the Claimant’s responses in the investigation meeting, Mr Neely concluded that the Claimant had not read the service user’s care plan and had failed to provide personal care. Indeed, in evidence to the Tribunal, the Claimant’s position was that the service user was independent with personal care. The Respondent had evidence to support its conclusion that this allegation was proved.

[38]The Tribunal was satisfied that the Respondent had a genuine belief that the above allegations were proved when dismissing the Claimant. The Tribunal accepted the evidence of Mr Neely in this respect, because there was contemporaneous documentary evidence to support his conclusions. He was clear in oral evidence that he believed, based on the evidence presented to him, that the Claimant had done the acts alleged. Further, the Case No: 6011779/2024 Claimant had made partial admissions or given inconsistent or implausible accounts in the investigation meeting. The Claimant had provided no evidence from which the Tribunal could conclude that his dismissal was related to race. The Respondent had provided detailed, reliable evidence as to the reasons for the dismissal.

[39]Having determined that the dismissal was not related to race, the Tribunal did not need to consider whether it had the purpose or effect of violating the Claimant's dignity, or creating an intimidating, hostile, degrading, and humiliating or offensive environment. Direct discrimination

[40]The Tribunal asked itself: what was the reason why the claimant was not appointed to the Night Team Leader role? Having already determined that the Claimant was not given the Night Team Leader role because he performed poorly at interview, and the Claimant having provided no evidence from which the Tribunal could, in the absence of an explanation, conclude that the decision was made because of race, the Tribunal found that race played no part. Indeed, another Black African candidate was appointed.

[41]As to the decision to dismiss the Claimant, the question for the Tribunal was: what was the reason for the dismissal? Was it race or some unrelated reason. Again, the Claimant had not discharged his burden of proof. There was no evidence before the Tribunal to suggest that a white person who had been found guilty of similar misconduct, would have been treated differently. The Claimant produced no evidence as to the treatment of others who had acted in a similar way. The issue for the Tribunal was not whether the Claimant in fact acted as alleged, but whether the Respondent, through Mr Neely, had a genuine belief in his misconduct, and dismissed for that reason. The overwhelming evidence was that the reason the Claimant was dismissed was because the Respondent determined that he had acted as alleged, following investigation and the gathering of statements from staff and service users, and having considered CCTV and photographic evidence. The Claimant had failed to prove facts from which the Tribunal could conclude that race played a role. The burden therefore did not shift, but having heard clear evidence from the Respondent’s witnesses, the Tribunal was satisfied that misconduct was the reason for the dismissal and race played no part. Written full reasons will not be provided unless requested by any party by a written request received by the Tribunal within 14 days of the sending of these written summary reasons. Case No: 6011779/2024