Mr B Gassama v Kingdom Support and Care CIC: 8001350/2024
JUDGMENT
The claimant’s claims fail and are dismissed in their entirety.REASONS
[1]The claimant lodged a claim on 26 September 2024 claiming that he had been discriminated against on grounds of disability and/or race. The respondent resisted the claims and indicated that it did not accept that the claimant was a disabled person at the material time and in any event it did not and could not have known that he was a disabled person.[2]The claimant worked as a bank support worker for the respondent on three occasions in July 2024. The respondent provides support services for individuals with a range of needs in their own homes.[3]A preliminary hearing took place on 9 December. A list of issues for determination at this hearing was included in the note of that preliminary hearing. Parties were required to advise the Tribunal within 14 days of receipt of the note if they did not agree that this list of issues accurately reflected the issues for determination. Neither party did so.[4]A joint bundle of documents was produced at this hearing. The claimant gave evidence. The respondent called two witnesses, Ms Dicotteo who had attended the disciplinary hearing following which the claimant was dismissed and was also responsible for the recruitment procedures of the respondent and Ms Millar who took the decision to dismiss the claimant. Parties made oral submissions on the conclusion of the evidence.[5]The claimant was advised at the commencement of the hearing that the Tribunal would only take into account any documents which were introduced in evidence before it. It was also reiterated to him that it was for him to satisfy the Tribunal that he was a disabled person at the material time. At the commencement of the hearing, the Tribunal sought to clarify the nature of the disabilities being relied upon by the claimant. That did not prove to be a straightforward task as the claimant’s position appeared to alter during the course of the attempts to clarify this matter.[6]The Tribunal proceeded on the basis that the claimant was relying on three separate conditions as amounting to disabilities: epilepsy, cirrhosis of the liver and severe headaches. In the event however the claimant made very little reference to any particular condition from which he said he suffered other than indicating that he took medication for his liver condition which made him sleepy. Issues to be determined[7]The Tribunal was required to determine the following issues: i. Disability Status – s6 Equality Act 2010 (EqA) Was the claimant a disabled person in accordance with the EqA at all relevant times because of Liver Cirrhosis and/or seizures and/or severe headaches? ii. Discrimination Arising from Disability – s15 EqA a) Has the respondent shown that it did not know, and could not reasonably have been expected to know, that the claimant had the disability b) Was the claimant treated unfavourably by being dismissed? If so, was this due to something arising in consequence his disability? Namely: Dizzy spells; and/or Appearing to be asleep due to dizzy spells. c) If so, was the treatment pursuant to a legitimate aim, namely: health and safety requirements of the individuals for whom the claimant provided services. iii. Direct Race Discrimination – s15 EqA a) Did the respondent subject the claimant to the following treatment? 1. Heather Millar Instructing others, who worked with the claimant, to make reports/complaints about him; 2. Lynn Russell refusing to allow the claimant access to a Patient’s house in Dunfermline on 5 July 2024, and then reporting to the respondent that the claimant had not attended for his duties; and 3. Dismissing the claimant. b) If so, was that treatment ‘less favourable treatment’, i.e. did the respondent treat the claimant less favourably than they treated, or would have treated others (“comparators”) in not materially different circumstances? The claimant relies upon a hypothetical comparator. c) If so, was this because of the claimant’s race? iv. Harassment related to Race – s26 EqA20 a) Did Robert Farmer state to the claimant, on 2/3 July 2024, that new foreign students are taking jobs in Scotland and the government had to go? b) If so, was it related to race? c) If so, did the conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? v. Remedy a) If the claimant establishes any of his complaints, to what remedy is he entitled? Specifically: b) What financial losses has the alleged discrimination caused the claimant? c) What injury to feelings has the alleged discrimination caused the claimant and how much compensation should be awarded for that? Findings in fact[8]Having listened to the evidence, considered the documentary evidence to which reference was made and the submissions of the parties, the Tribunal found the following material facts to have been established.[9]The claimant applied for the role of bank staff Support worker with the respondent in February 2024. The application was submitted online and attached a copy of the claimant’s cv. The application form included a question as to whether the applicant required any reasonable adjustments to be made to allow him to carry out the role. The claimant indicated ‘no’ to that question. No reference was made by the claimant in his cv or elsewhere in that form to any medical conditions or any medication taken by him.[10]A telephone interview took place with the claimant on 29 February. The claimant did not mention any medical condition or medications taken by him during the course of that interview.[11]The claimant was then interviewed remotely by Mr Craigie to whom the claimant would report on appointment. The claimant did not mention to Mr Craigie any medical condition or medication he was taking.[12]The claimant was appointed to the role and was issued with a written statement of employment particulars on 15 May 2024 and was to be paid an hourly rate of £12 per hour.[13]The claimant was required to complete a number of ‘shadow shifts’, where he worked with an existing member of staff before he worked on his own with clients.[14]The claimant worked a shift on 3 July, where he shadowed a colleague Lynn Russell in supporting an individual, AB. Ms Russell was an experienced member of staff, and the respondent often allocated new starts to complete their shadow shifts with her. She did not have a history of complaining about the conduct of colleagues.[15]Ms Russell reported to Mr Craigie that that claimant had been disinterested while on shift on 3 July and appeared unable to focus on the tasks being discussed. She reported that she had to repeat the financial procedures for handling the client’s money on a number of occasions. She also reported that the claimant had been sitting on the client’s sofa with his eyes closed and that he had taken the remote control from the client and changed channels. In addition, Ms Russell reported that when she, the client and the claimant had attended a silent disco, the claimant had been sitting with head on a table apparently asleep and had to be encouraged to take part in the activity with the client.[16]AB’s sister, who was also his guardian, contacted the respondent and made an informal complaint about the claimant following his shift on 3 July. She said that her brother did not want the claimant to return to provide support to him, that her brother had told her that the claimant had been sleeping at the silent disco and that when they had returned to her brother’s house, the claimant had picked up the remote control and changed channels without her brother’s consent.[17]Following a shift where the claimant had been shadowing another colleague, Mr Farmer, who was also an experienced colleague, Mr Farmer raised concerns with Mr Craigie regarding the claimant’s conduct. Mr Farmer indicated that the claimant had been asleep on the client’s couch, and while in the back of a car Mr Farmer had been driving. Mr Farmer also reported that the claimant had helped himself to a hot drink at the client’s house without asking permission first and that the claimant had been late on two occasions. Mr Farmer reported that he did not believe the claimant could be left alone with clients.[18]The claimant was due to work a shift on 5 July. He contacted Mr Craigie in advance and indicated that he would not be able to attend the shift until 1.30pm. However, the claimant attended the client’s home at 11am without having made any arrangements to do so and the client was out with another member of staff. The claimant called Mr Craigie and while he was not initially able to speak to him, did so after some time. The claimant was informed that he could attend the respondent’s offices to carry out online training until the shift was due to commence at 1.30pm but declined to do so as he said he was already on his way home.[19]The respondent then wrote to the claimant on 12 July indicating that he was required to attend a disciplinary hearing on 22 July to address the following allegations: i. You have fallen asleep on several occasions whist on shift with supported individuals ii. You have failed to engage with your colleagues whilst receiving instructions about procedures, whilst on shift iii. You helped yourself to a service individual’s coffee without their permission, whilst on shift iv. An informal complaint raised by a family member of a supported individual regarding the lack of consideration in your actions whilst on shift on 3 July 2024.[20]The claimant was provided with a statement from Mr Farmer, a file note of a meeting between Mr Craigie and Ms Russell and a written record of the informal complaint of the family member. He was informed that the alleged actions were considered to potentially be a serious breach of the respondent’s code of conduct and SSSC Codes of Practice.[21]The hearing took place, and the claimant attended unaccompanied. The allegations were discussed during the hearing which was chaired by Ms Millar, the respondent’s Support and Care manager. The claimant denied being asleep, having his head on a table, taking the remote control from the client and questioned why he hadn’t been told that he couldn’t have a cup of tea or water and suggested that people were just making up reports. During the course of the hearing, the claimant suggested that Ms Russell was afraid of him coming in to take her job and that ‘maybe it was a race thing.’ He suggested that Mr Farmer had made a comment to him about how a lot of jobs were taken by black people and everyone working at security was black and that the government had to go. The claimant went on to say that “he had nothing against Mr Farmer.”[22]At the end of the hearing, the claimant stated that he was on medication for his liver and maybe that was affecting him, that he had not been sleeping well, and it made him dizzy. He was asked whether people might have thought he was asleep when he had been dizzy and the claimant suggested that might have been the case. He indicated that he had not told anyone previously about these dizzy spells.[23]Ms Millar then wrote to the claimant by letter dated 23 July indicating that she found the allegations to have been established, and that the claimant should be summarily dismissed on grounds of gross misconduct. The letter set out the procedure for the claimant to appeal against that dismissal.[24]The claimant sent an email on 25 July to the respondent which did not explicitly state that it constituted an appeal against the decision to dismiss him.[25]The respondent replied to that email on 1 August asking for clarification as to the basis of the claimant’s appeal in terms of the respondent’s procedure. The email also set out what it understood to be the claimant’s grounds of appeal on the basis of his email of 25 July and asked for the claimant to confirm whether these were accurate and if not, set out the grounds for appeal. The claimant did not reply to that email.[26]The claimant has not obtained alternative employment and is in receipt of Universal Credit. Observations on the evidence[27]The Tribunal found the claimant to be an unsatisfactory witness. His evidence was vague and often contradictory. He was argumentative when being cross examined and despite being reminded on a number of occasions that he should answer the questions asked, and that if any question was inappropriate or irrelevant, the Tribunal would intervene, continued to respond to questions with his own questions or by asking why he was being asked what in the Tribunal’s view were relevant and appropriate questions. The Tribunal did not find the claimant to be a credible or reliable witness.[28]The Tribunal found the respondent’s witnesses both to be credible and reliable. They gave their evidence in a straightforward manner.Relevant law
[29]Section 6 Equality Act 2010 (‘EqA’) defines the circumstances in which an individual will have the protected characteristic of disability.[30]Section 13 sets out the basis on which a person will be subjected to direct discrimination. Section 15 deals with what will amount to discrimination arising from a disability and section 26 sets out the circumstances in which a person will be subjected to harassment for the purposes of EqA. Discussion and decision Was the claimant a disabled person?[31]The Tribunal first considered whether the claimant was a disabled person for the purposes of section 6 at the material time, being July 2024. The claimant gave very little evidence in support of this proposition. He did not make any reference to any medical information. His evidence was that he took medication in relation to a liver condition and that this medication could make him sleepy. That was the extent of his evidence on the question of disability status. That evidence was wholly inadequate to demonstrate that the claimant had the protected characteristic of disability at the material time.[32]The Tribunal did not accept therefore that the claimant was a disabled person at the material time. The respondent’s knowledge[33]Nonetheless the Tribunal went on to consider whether if it was wrong in that conclusion, whether the respondent was or could reasonably have been aware that the claimant was a disabled person.[34]The claimant did not make any reference to any condition which might impact upon his ability to provide support to those with complex needs in their own homes during the recruitment process with the respondent. The first and only occasion he appears to have mentioned any condition to the respondent was at the end of the disciplinary hearing, when he appeared to mention in passing that he took medication for a liver condition and that he had not been sleeping well which made him dizzy. It was only on questioning by Ms Millar that the claimant agreed with the suggestion made to him that the claimant’s dizzy spells could have been interpreted as being asleep. The claimant did not provide details of any medication he was taking or raise this as a possibility at the beginning of the hearing. He did not relate these dizzy spells to any particular condition he suffered from.[35]Therefore, the Tribunal found that if the claimant was a disabled person, whether by reason of his liver condition, or any other condition, the respondent was not and could not have reasonably been aware of this fact during his employment. Discrimination arising from disability[36]The Tribunal went on to consider whether even if the respondent had knowledge of the claimant’s disability, he was discriminated against in that regard.[37]While dismissal amounted to unfavourable treatment, the Tribunal concluded that the claimant was dismissed because the respondent was not satisfied that he was a suitable employee, and that the allegation he had been sleeping formed only a small part of its reasons. In any event, the claimant’s position was that he was not at any stage been sleeping, and that he did not have his head on a table at the silent disco event. The claimant appeared to suggest latterly at the disciplinary hearing that he may have appeared to have been sleeping because he was dizzy. He had previously suggested during the hearing that his colleagues were making up these allegations. Indeed, at the Tribunal hearing his position appeared to be that the respondent’s employees had conspired against him to make up allegations which might lead to his dismissal. The claimant’s allegation in this regard was made without evidence to support it. The claimant suggested that Ms Millar herself had conspired with Ms Russell and Mr Farmer to make up allegations against him. The Tribunal found this to be a wholly incredible suggestion.[38]Ms Millar concluded that the claimant had been asleep while at work, had not appeared to be engaged in his duties and having received a complaint about his conduct, determined that his conduct had amounted to gross misconduct. There was nothing to suggest that the claimant had been asleep due to any disability as the claimant’s position was that he had never been asleep. The closest the claimant came to suggesting that he might have appeared to have been asleep was because he was dizzy, which seemed to be related to a general lack of sleep rather than any medication he was taking.[39]Therefore, the Tribunal concluded that there was simply no evidence whatsoever to suggest that any conditions suffered by the claimant had anything at all to do with the decision to dismiss him. Did the respondent discriminate against the claimant because of race?[40]The claimant alleged that colleagues were encouraged to complain about him because of his race. He did not lead any evidence to support that proposition. Ms Millar’s position was that both Ms Russell and Mr Farmer were long standing members of staff, neither of whom had a history of complaining about colleagues and both of whom were regularly allocated to work with new colleagues because of their experience.[41]The Tribunal was satisfied that this allegation was wholly without foundation.[42]The claimant also alleged that he had been denied entry to the client’s home when he arrived at 11am. The respondent’s position was that neither the client, nor the claimant’s colleague were in the house at that time as they had gone out. The Tribunal preferred the respondent’s evidence. The claimant appeared simply to assume that there must be people in the accommodation when he arrived but could not say why he came to that view. There was nothing at all in this allegation. The claimant’s allegation was simply a matter of conjecture on his part.[43]There was no dispute that the claimant was dismissed, and this amounted to unfavourable treatment. However, the claimant did not lead any evidence at all to suggest that the reason for his dismissal was related to his race. He relied on a hypothetical comparator but did not lead any evidence to suggest that a hypothetical comparator would have been treated any differently. At times, he appeared to suggest that the fact he made allegations against Ms Russell and Mr Farmer during the course of the disciplinary hearing, might be adminicles of evidence relevant to his claim. However, the allegations made against them by him were quite different in nature and context to the allegations against him.[44]The Tribunal therefore concluded that there was no evidence to support a suggestion that the claimant’s dismissal was anything to do with his race. Was the claimant subject to harassment?[45]The claimant conceded that he had nothing against Mr Farmer and that he had got on well with him. He also said that he only raised the allegation that Mr Farmer had made comments about students taking jobs and the government having to go once he found out that Mr Farmer had been critical of him.[46]The Tribunal found that, on the balance of probabilities, and given its view of the claimant’s lack of credibility more generally, that Mr Farmer did not say anything which might amount to harassment related to race.[47]In so far as Mr Farmer may have said anything at all about jobs and black people there was simply no evidence to suggest that whatever he said had the effect of creating an intimidating or hostile environment for the claimant. The claimant’s claim of harassment therefore fails.[48]The claimant’s claims therefore fall to be dismissed in their entirety.