K Ruiza v Nuclear Restoration Services Ltd: 8001111/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001111/2024
Between
K RuizaClaimantNuclear Restoration Services LtdRespondent
Before
Employment Judge R MackayMr Bryden, Solicitor for respondentDate 25 November 2025
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s application to amend his claim is refused; the case will proceed to a final hearing on the dates previously assigned. Active: 122998846v1
REASONS
Oral reasons for the Judgment were provided at the conclusion of the hearing. JUDGMENT OF THE EMPLOYMENT TRIBUNAL[1]The Respondent shall pay the Claimant £9,000 (nine thousand pounds) in compensation for race discrimination.[2]The Respondent shall also pay the Claimant interest of £1875.94.[3]The Respondent shall pay the Claimant a total sum of £10,875.94 (TEN THOUSAND, EIGHT HUNDRED AND SEVENTY FIVE POUNDS AND NINETY FOUR PENCE) in satisfaction of his claim.[1]The Tribunal upheld the Claimant’s claims in relation to Direct discrimination, indirect discrimination and harassment in respect of being told that he could not speak Swahili at work and direct discrimination in relation to being subject to performance management between 30 August and 27 September 2023.[2]On the basis that direct discrimination and harassment are mutually exclusive, these cannot be found in relation to the same allegation. The Tribunal therefore did not consider the allegation of not being allowed to speak Swahili as a harassment. There was no specific reason to make this choice, but as one needed to be eliminated, this was chosen. If for any reason this is the wrong choice, the Tribunal was satisfied that the same result would have occurred if direct discrimination on this point were eliminated and harassment were compensated.[3]The Claimant provided a written statement/submission and a copy of a sick certificate dated 18 December 2023 to 23 December 2023. Copies were provided to the Respondent and Mr Bryden was given time to consider these before the hearing commenced.[4]The Claimant gave live evidence and was questioned by Mr Bryden on behalf of the Respondent.
Facts
[5]The Tribunal have not sought to set out every detail of the evidence which we heard at this Remedy Hearing, nor to resolve every difference between the parties, but only those which appear to the Tribunal to be material to the task of determining an appropriate remedy for the claimant. The material findings, relevant to the issues before us for judicial determination, based on the balance of probability, are set out below, in a way that is proportionate to the complexity and importance of the relevant issues before the Tribunal.[6]The Claimant was told by Ms Wood on 9 August 2023 that he should only speak English at work. This was followed up by an email on 13 August 2023, giving the same instruction. As a result of this, the Claimant stopped talking to his family in Swahili during his lunch time. He told his family in Tanzania that he could not speak to them as he was only allowed to speak English.[7]The Claimant was upset and humiliated by the instruction not to speak Swahili. He said that he felt that others at work were watching him and that he was scared, as he did not want to lose his job. He spoke of others on the beach watching him speaking Swahili and his feeling that they must have reported this to Ms Wood, as she was not there to see him do this.[8]The Respondent admitted that Ms Wood was acting on the complaints of others, including the security guards whom she said found him disruptive. She also stated in evidence to the Tribunal that walking and talking with a mobile phone was a safety issue.[9]As a result of this incident the Claimant said that he was stressed and that this affected his home life, by way of making him angry for no reason with his wife and children. He spoke of his wife warning him of the affect that this was having on their children.[10]The performance management programme started on 30 August 2023 on grounds of the Claimant’s behaviour, which was based on the racist view of Ms Wood that the Claimant speaking in Swahili was disruptive. This evolved into a non- racist reason relating to performance in September 2023, when the focus of the process was adapted to include legitimate capability issues.[11]The Claimant visited his GP in December 2023 and obtained a sickness certificate between 8 and 23 December 2023. He provided this to Ms Wood, but did not take the time off as he was scared he might lose his job. Around this time, he was also prescribed sleeping pills and antidepressants. He took these for approximately three weeks.[12]In January 2024 the Claimant raised a grievance about the fact that he had been told not to speak Swahili when at work. The outcome of this grievance was that he had not been subjected to race discrimination. As a result of that outcome the Claimant felt that he was unsupported by his employer and that it was not merely one manager who was discriminating against him. This intensified his feelings of hostility and humiliation.[13]Whilst the grievance was being considered, the Respondent moved the Claimant to the line management of Ms Prescott. She conducted the performance management process in a fair and non- discriminatory manner. In stark contrast to the actions of Ms Wood.[14]Ultimately the Claimant was dismissed due to failing his probationary period. This was due to issues of capability and not related to his race.
The Law
[15]The Tribunal should consider the impact of the unlawful conduct with regard to injury to feelings which is intended to compensate the claimant for the anger, distress and upset caused by the unlawful treatment. This is a compensatory sum (and is not punitive) with the focus on the actual injury suffered by the claimant rather than upon the action of the respondent.[16]Three bands were set out for injury to feelings in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 in which the Court of Appeal gave guidance on the level of award that may be made noting that the award is compensating subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief and humiliation. The three bands were referred to as being lower, middle and upper, with the following explanation:a. The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.b. The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.c. Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.[17]In De Souza v Vinci Construction (UK) Ltd [2017] IRLR 844, the Court of Appeal suggested that it might be helpful for guidance to be provided by the Presidents as to how any inflationary uplift should be calculated in future cases. The Presidents of the Employment Tribunals in England and Wales and in Scotland thereafter issued joint Presidential Guidance updating the Vento bands for awards for injury to feelings, which is regularly updated. In respect of claims presented on or after 6 April 2023, the Vento bands include a lower band of £1,100 to £11,200, a middle band of £11,200 to £33,700 and a higher band of £33,700 to £56,200.[18]General principles that apply to assessing injury to feelings awards were given in Prison Service v Johnson [1997] IRLR 162 where it was noted that such awards are compensatory and should be just to both parties. They should compensate fully but not punish any party. Awards should not be too low to diminish the policy of the legislation. Awards should have some broad general similarity to the range of personal injury awards and Tribunal should take into account the value in everyday life of the sums in question and the need for public respect for such awards. The award is intended to encompass subjective feelings of upset, frustration, worry, anxiety, humiliation stress and depression and should be such amount that the Tribunal considers to be just. Examples1 of other cases which the Tribunal considered to be relevant to their 19. consideration were: Amer v Greggs Plc (London Central) (Case No 2202006/2008) (25 June 2009, unreported) — ITF £5,500 (and Uplift at para [1274])[20]The claimant was an Egyptian bakery store manager. He was caused hurt and distress by a remark made by another member of staff. It was an isolated incident of racial harassment albeit with some aggravating features as it took place in front of 150 of his colleagues, including junior ones and everyone laughed so he felt particularly humiliated. The impact of the remark was somewhat eclipsed by the claimant's dismissal which was not discriminatory 1 Harveys on Industrial Relations but which led to depression. The appropriate figure was the very top of the lower Vento band adjusted for inflation. Kemeh v Ministry of Defence [2014] EWCA Civ 91, [2014] IRLR 377— ITF £6,000[21]The claimant was a chef in the British Army. He was originally from Ghana and became a British national in 2009. He was racially discriminated against in two separate incidents. In the first he asked for more pieces of chicken from a civilian worker who replied 'Why should I trust you? First of all you are a private in the British Army and then you are black'. The claimant was very upset, the implication being that because he was black he was not to be trusted with a substantial quantity of ingredients. In the second incident the claimant was told to 'shut up, you dumb black bastard'. That comment was made by a more senior officer who was in a position of responsibility to the claimant to ensure that he was not racially discriminated against. Although there was later an apology after an investigation by another officer, it was not as remorseful as it could have been. That investigation was not as good as it should have been and would have exacerbated the injury to feelings. This was a serious incident and caused the claimant considerable distress. The ET considered that appropriate awards were £3,500 for the first incident and £12,000 for the second. This was found to be 'manifestly excessive' and was overturned by the EAT, which substituted a figure of £6,000. The Court of Appeal upheld this decision of the EAT, stating this was a one off comment, not a matter which had resulted in dismissal or the refusal of a job, and that there is 'no justification' for such one off incidents being placed in the middle Vento band.[22]The Tribunal noted that prior to Ms Wood making the comment about Swahili there had been no criticism of his work performance[23]The Tribunal considered that Ms Wood telling the Claimant that he must speak English at work was not an entirely isolated incident. The first instruction was given verbally on 9 August 2023, but Ms Wood then repeated the instruction on 13 August in an email saying that he should speak “English appropriately”. She did not, in the intervening period consider her comment, take advice, or realise the offensive and derogatory nature of her remark.[24]Further, when it was later retracted, there was no outright apology and Ms Wood continued to say that the Claimant had to “talk appropriately on site”. This did not make it clear that Ms Wood understood that this had been a discriminatory act, nor that she had caused offense and humiliated the Claimant.[25]The Tribunal considered that it was reasonable and understandable that the environment felt hostile towards the Claimant. The Tribunal took into account that the Respondent’s explanation that security had reported the matter due to their ‘distraction’, and that there was a safety issue in walking and talking, were so derisory as to undermine the credibility of Ms Wood and her suggestion that there was a Respondent policy, showed the crass nature of her attitude toward the Claimant.[26]The Tribunal understood these comments and actions to have a substantial impact on the Claimant. In particular, the Tribunal were concerned to hear the Claimant’s evidence that he felt that he could not open up to his son about what was happening to him, as he did not want to tell his young son of the existence of race discrimination.[27]The Tribunal acknowledged that the Claimant was told in September 2023 that emergency calls were acceptable, but that they were not the same as every day calls and he was not allowed to disrupt others with excessive calls. The Tribunal considered this to be a half-hearted retraction of the previous instruction. The Tribunal accepted the Claimant’s evidence, that by this point, the damage was done. The Claimant had told his family not to contact him at work until he completed his probation. The humiliation and upset were present and the Claimant’s fear that he might lose his job loomed over him.[28]Both parties accepted that by September 2023 there was a communication breakdown between the Claimant and Ms Wood. However, the Tribunal noted that steps were not taken by the Respondent to try to mediate between them, or to resolve any difficulty. To that extent the Respondent did not resolve the issue between these two employees, and did not show the Claimant that they were in any way supportive of him.[29]The Tribunal were also troubled by the fact that the Respondent failed to uphold the Claimant’s grievance, which led to a further upset to the Claimant, who then considered that he was entirely unsupported by his employer and not merely by an individual manager.[30]The Tribunal also considered that Ms Wood commenced a performance management programme from 30 August to 22 January, which started on the basis of the Claimant’s behaviour and evolved into issues about the Claimant’s work. This became quite a personal issue between them and led to some confrontational meetings, such as that on 13 September 2023.[31]The Tribunal considered the extent of the Claimant’s distress. The fact he visited his GP, was given a sick certificate and instructed his family not to call him. We also took into account the effect of these points, impacting the Claimant’s confidence in his own work and his need for prescribed medication for a short period. We noted the effect on his family life and his upset over the impact on them.[32]The Tribunal noted the cases referred to above and those presented by the Respondent as comparator cases, in order to assist with the consideration of which Vento band and the level of compensation appropriate in this case. Ultimately the Tribunal concluded that this is a case which lies in the lower Vento band as although it was not a one off incident, the number of separate incidents was limited and the period of time was approximately 5 months. The Claimant did continue to work for the Respondent after the incidents and the grievance.[33]The Tribunal understood the impact on the Claimant and the consequential impact on both this work and family life. Taking all the evidence into account, the Tribunal considered the appropriate award to be £9,000.[34]The Tribunal was aware that an award of interest must also be provided from the date of the discrimination. The Tribunal calculated that to be 9 August 2023, with the end date as 17 November 2025. At a rate of 8% per annum, this amounts to a further £720 per annum, a total of £1,875.94[35]The total award which the Respondent must pay the Claimant is £10,875.94.