Miss Y Makarova v Intervision Gaming (UK) Ltd (T/a The Razz): 8002000/2024
JUDGMENT
[1]The claimant was not unlawfully discriminated against, contrary to section 13 of the Equality Act 2010, and her complaint is dismissed; and[2]The claimant was wrongfully dismissed on 30 September 2024 and her complaint succeeds, but she has been fully compensated for her claimable loss and therefore no award of damages is made.REASONS
[1]This hearing decided a claim raised by the claimant against her former respondent. She was employed between 12 August and 30 September 2024 and on the latter day was summarily dismissed. She submitted complaints of direct race discrimination and breach of contract in relation to her entitlement to notice.[2]The parties had prepared a joint bundle of documents. Numbers in square brackets below correspond to pages in the bundle.[3]The claimant gave evidence on her own behalf. She intended to call a former colleague named Cameron Russell as a witness. He was to join on the second day of the hearing as he had a commitment on the first. He joined at the beginning of the second day, but claimed that the camera on his mobile telephone was not working, and so could be heard but not seen. He could see those in the hearing however. The parties agreed that the individual speaking was Mr Russell and that they were content for him to proceed. We therefore began hearing his evidence in chief, in response to questions put by the claimant. However, Mr Russell’s connection was suddenly lost. Attempts to telephone him were unsuccessful. Eventually he contacted the claimant to say that his mobile phone battery had run out and would not recharge. He offered to try and borrow a laptop computer from a friend but would not be able to do so until the following day. By this point around 30 minutes had been lost. It was agreed that we would hear the evidence of the respondent’s final witness and give Mr Russell until 2.30pm to find a way to connect to the hearing. When that time was reached Mr Russell was unable to connect or to offer any assurance that he would be able to join that day. I heard the parties’ submissions on the situation and took the decision that we would have to conclude the evidence and deal with the parties’ closing submissions in order to complete the hearing in the allocated time. I gave reasons orally for this decision, but essentially I considered:a. the tribunal’s overriding objective, including in particular the importance of managing cases proportionately to their complexity, and saving expense. This favoured concluding the hearing within its allocated hearing time;b. the respective benefit or hardship for each party depending on whether the hearing was continued to a further date, to allow Mr Russell a further chance to join the hearing. His evidence did not appear to assist with determining the legal issues. Mr Thomas had not had the opportunity to cross-examine him, and stated that his evidence was disputed by the respondent; andc. the potential value of Mr Russell’s evidence to the claim. Again, it was unclear how his evidence related to the relevant legal issues in the case.[4]Evidence for the respondent was given by Ms Roxanne De Vita, the claimant’s former line manager and herself no longer employed by the respondent, and Mr Adrian Dolman, the respondent’s Regional Manager. Although generally credible, Ms De Vita had poor recollection of the key events. There were no notable issues with the credibility or reliability of Mr Dolman’s evidence.[5]As stated above, I allowed the parties time to provide closing submissions, which both did orally, and reserved my decision, which is now set out below. Legal Issues A list of issues was not prepared, but the matters to be decided were relatively selfcontained as follows: 1. Did the respondent discriminate against the claimant because of her race contrary to section 13 of the Equality Act 2010 (‘EqA’) by dismissing her on 30 September 2025. 2. Did the respondent breach the claimant’s contract of employment by dismissing her without either(i) providing the required amount of notice, or(ii) payment in lieu (where it had the contractual right to do so). Findings of fact The tribunal made the following findings as relevant to the legal issues it had to decide, based on the evidence presented and on the balance of probabilities. 1. The claimant was employed by the respondent between the dates of 12 August and 30 September 2024. She was employed as a Night Shift Supervisor. The respondent operates adult gaming premises in Inverness and Rugby in the UK, as well as in other locations worldwide. The claimant worked at the Inverness site. The main activity carried out there is slot machine gaming. The claimant was recruited in response to the respondent obtaining a licence to operate 24 hours a day, and therefore needing night shift staff. She typically worked from 10pm to 8am, Friday to Sunday. As a supervisor she would be the most senior employee on site and there would normally be around two other staff. She reported to Roxanne De Vita, Store Manager, who worked day shifts but was generally contactable in an emergency outside of her working time. 2. Customers must be over the age of 18 years and staff must carry out age checks to ensure this requirement is met. The relevant gaming licence could be forfeited if not. This meant that there had to be at least one member of staff on site at all times. 3. There was a dispute between the parties as to what contractual documents the claimant had been given when commencing her role. A job offer letter was produced [98] which the claimant accepted she had received, but only around 29 August 2024. She accepted that its terms were accurate. This included confirmation that she would have to complete a six-month probation period (which could be extended by three months) before a decision would be made on her status. She recognised a separate employment contract [103] and employee handbook [112] but said that they had only been sent to her after her employment ended. The respondent’s position was that these would have been issued to her at the beginning of her service and that their terms applied to her, although there was no documentary evidence of that and Ms De Vita could not confirm that it happened. 4. The claimant is Ukrainian. Ms De Vita and Mr Dolman are British. The claimant’s colleagues were Scottish to the best of her knowledge, save as specified below. 5. 28 September 2024 was a Saturday and the claimant was scheduled to work from 10pm onwards as usual. Ms De Vita had asked her to work from midnight (therefore Sunday 29 September) until 10am, i.e. starting and finishing two hours later than normal, because the member of staff scheduled to take over the following morning was not able to do so until 10am. The claimant agreed. She was accompanied by a night shift team member named Mr Russell. Around 4am the claimant began to feel nauseous and was sick a number of times. She tried to remain at work but had to leave between 6 and 7am. She went home by taxi and Mr Russell remained. He was content to do so as the store was not busy. The claimant intended to return to work for 8am to allow Mr Russell to leave, or to arrange cover by another staff member.Findings of fact
[6]The claimant sent a WhatsApp message to Ms De Vita at 7.33am, explaining that she had become ill and gone home, that Mr Russell was at the store until 8am, but that she could not cover until 10am. This left the store potentially unstaffed between 8am and 10am. Ms De Vita quickly got ready and drove to the store to allow Mr Russell to leave at 8am. She tried to contact the day shift member to ask him to come in before 10am but was unable to reach him. She waited herself at the store until around 9.30am when another member of staff arrived. At 8.14am she sent a WhatsApp message to the claimant which she deleted shortly after, and so it was not available to the tribunal to read. She conceded that she had told the claimant she had been unprofessional by going home without notifying management first and arranging cover. She decided to delete the message because she wanted to discuss the matter in person.[7]Ms De Vita asked the claimant by message at 8.46am that morning whether she would be in for her shift that night. She replied that she would.[8]The claimant worked the shift as normal, beginning at 10pm and finishing at 8am on the morning of Monday 30 September 2024. Ms De Vita came in as the shift ended and held a return-to-work meeting with the claimant regarding her illness the shift before. This conversation was brief and Ms De Vita then explained that she had taken the decision to terminate the claimant’s employment with immediate effect. She said the claimant had been irresponsible to leave her workplace without arranging cover, and that it had caused her significant personal inconvenience, as it was her birthday and she had a planned breakfast with family. She added that she had discussed the matter with Mr Dolman, the Regional Manager, who supported her decision and that she viewed what the claimant had done as gross misconduct. When it became clear that Ms De Vita would not change her mind, the claimant left the meeting.[9]The claimant emailed Mr Dolman around 4pm that day with a detailed account of what happened during the night in question. She said she had been left with the belief that ‘favouritism and discrimination may be factors in my dismissal’, referring to other employees who had arrived late at the start of their shifts or missed them altogether, and who had not been dismissed. She asked Mr Dolman to consider and respond to her email.[10]The claimant and Mr Dolman spoke a number of times on that day and on the days which followed. Mr Dolman spoke again to Ms De Vita about her reasons for dismissing the claimant, and sought external advice. He concluded that Ms De Vita was within her rights to dismiss the claimant and in an email of 4 October 2025 he confirmed that to the claimant. He said that ‘your actions … should and have been deemed as gross misconduct which during your probationary period has resulted in the termination of your contract. Whilst we are empathetic and supportive as a business, we still have a business to run.’ He attached a copy of the respondent’s employee handbook.[11]The claimant replied two days later to say that she had not received or signed any contractual documents. She reiterated her belief that there had been unlawful discrimination and said that she would take legal steps as necessary. She attached notes of the telephone calls between the two. Me Dolman did not accept them as suitably accurate.[12]On 28 January 2025 the respondent paid the claimant the equivalent of a week’s pay, net of appropriate deductions [148]. It did so without prejudice to its position that it had been entitled to treat the claimant’s conduct as gross misconduct, and so be released from the obligation to provide or pay for notice. The claimant accepted that the amount she received represented the correct value of her entitlement to notice, but made the point that this did not change her view that she had been wrongfully dismissed at the time, and the sum was only paid after she submitted her claim to the tribunal. Discussion and decision Direct discrimination[13]Section 13 of EqA states as follows: 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[14]The claimant alleged that Ms De Vita’s decision to dismiss her for her conduct in the early hours of Sunday 29 September 2024 was an act of direct discrimination because of her race. She referred to a number of situations which she said provided valid comparators. In each case the individual had not been dismissed. Those are considered below:a. 5 September 2024 – Mr Russell was working the night shift. The claimant was not. He sent her a message between midnight and 1am to say that he was in a poor mental state and had to go home. He had arranged with another colleague, Gemma, that she would come in to cover for him and she arrived before he left. Another colleague, Lemony was working the same shift as well.b. 9 September 2024 – The claimant and Lemony were working a night shift. Lemony was unwell and tired, and was falling asleep. She asked to go home and the claimant agreed, therefore working alone until the end of the shift. She told Ms De Vita when handing over at 8am. Ms De Vita was sympathetic.c. 12 September 2024 – Mr Russell was scheduled to work the night shift that day but was in a poor mental state and called the claimant before his start time to say he would not make it to work. He wished to take the day as annual leave. Ms De Vita authorised his absence. At least one other team member was scheduled to work alongside the claimant for the shift.d. 14 September 2024 – the claimant worked the night shift with Lemony. The claimant allowed her to leave shortly before 8am to catch a bus, and waited for her day shift colleague Krists, who is Latvian, to arrive. He was scheduled to arrive for 8am but was an hour late as he had suffered from food poisoning. The claimant had to wait for him despite having a lift home arranged, as there were no other staff to cover the premises. The claimant reported this to Ms De Vita who again was sympathetic to the claimant’s colleague.e. 19 September 2024 – the claimant was not working that night. Mr Russell, who was, sent her a message to say that again he had to go home. He had tried to arrange for Gemma to cover for him but despite originally agreeing she had an emergency herself and could not come in. Two other team members were working on the shift.f. 22 September 2024 – Lemony left her night shift part way through without notifying anyone. She was known to have a chronic thyroid condition. She messaged Ms De Vita during the night to confirm that she had left and that she believed the cause to be thyroid symptoms. The claimant had started at 8pm to cover a gap in the rota. She had thought Lemony was just going out for fresh air, but she did not return. Gemma was also working the shift.[15]Ms De Vita in her evidence confirmed that she was not critical of the claimant in relation to any of these events. She also made the point that each of the colleagues who had left work or not attended was more junior to the claimant, who was their supervisor. She considered that this more senior role, together with the existing supervisory experience the claimant had, entitled her to expect more of the claimant. This was especially the case since the claimant was the most senior employee to work night shifts, which Ms De Vita did not. She did not consider the team members to be valid comparators for the claimant on this basis.[16]Ms De Vita also believed that the claimant knew that no day shift colleague would be staring until 10am on the morning of 29 September 2024 rather than 8am as would normally be the case. The claimant had said in her WhatsApp message that ‘Cameron is in till 8, but texting to let you know that I can’t do it till 10, I’m so much sorry’. This seemed to be supported by the fact that Mr Russell was agitated about having to leave no later than 8am himself. Ms De Vita understood that he was only worried about having to leave at that time because he knew that the store would not be covered for up to two hours and would have to be closed unless another staff member could come in. She concluded that the claimant must have had the same knowledge and did not expect cover to arrive at 8am. On the balance of probability, and noting also that the claimant had started her shift two hours later than normal, she knew that the reason why she had been asked to work until 10am was because that was when her first day shift colleague could start. In the end what matters is that Ms De Vita genuinely believed that the claimant knew there would be a two-hour gap in staff cover and was of the view that she did not do enough to remedy that directly or alert a manager about it.[17]Section 13 of EqA required that a claimant is treated less favourably than a relevant comparator ‘because of’ their protected characteristic. For a comparator to be valid, section 23(1) explains, ‘there must be no material difference between the circumstances relating to each case’. The comparators the claimant sought to rely on were not individuals with ‘no material difference’ from her because they were more junior and had less responsibility. This was relevant because Ms De Vita considered the claimant had to meet the higher standard of a supervisor, but had not done so. Her expectations were greater. This was a differentiating factor between the claimant and her colleagues which was not to do with race.[18]For an additional reason Mr Russell could not be considered a comparator. He was also dismissed for poor performance and attendance as Mr Dolman, the decision maker, confirmed in his evidence.[19]In any event, had the claimant’s colleagues been valid comparators, it was not shown on the evidence provided that the claimant had been less favourably treated because of her race. There were no preliminary facts to suggest race was the reason, and so the burden of proving the claim did not shift from the claimant to the respondent. What evidence there was suggested that Ms De Vita had lost confidence in the claimant as the most senior night shift worker. This was partly based on her belief that the claimant had known there to be a two-hour gap without cover for the store that she had taken inadequate steps to cover or even bring to a manager’s attention.[20]For the above reasons the claimant was unable to establish that she had been directly discriminated against. Breach of contract[21]An employer may only dismiss an employee without notice (or, if the contract allows, payment in lieu) if the individual commits a repudiatory breach of the contract – in other words, a breach serious enough to ‘break’ the agreement and signal that the person committing it no longer wishes to be bound by their own key duties. Not every breach of contract will be material enough to be repudiatory and often a tribunal will have to assess both whether there has been a breach and then, if so, whether it is serious enough to be repudiatory.[22]The onus falls on the respondent to show that the claimant committed a repudiatory breach of contract.[23]Ms De Vita confirmed in evidence that her decision to dismiss the claimant was based solely on her conduct during the early hours of 29 September 2024. More specifically, she believed that the claimant had gone home without telling Mr Russell that she was not coming back, leaving him to manage the store and knowing that he would have to leave at 8am and cover would not arrive until 10am. She believed that the claimant should have either arranged cover for that gap herself, or made greater efforts to contact a more senior manager and allow them to deal with the problem. The only more senior managers in the business that the claimant knew were Ms De Vita herself, and above her Mr Dolman, with whom she had not dealt.[24]The claimant was unwell during the shift in question. That was not challenged. She vomited a number of times and felt faint. She passed out after she arrived home. She sent a message to Ms De Vita to say that she could not cover the two-hour gap. Mr Russell knew she had gone home ill. He was capable of contacting Ms De Vita himself about what was to happen at the end of his shift.[25]The claimant fell short of the expectations placed on her by Ms De Vita, not least because the latter had to resolve the problem at very short notice when she had personal plans involving family. However, the claimant did not commit a repudiatory breach of contract. At its worst her conduct involved a minor breach in the sense that her updating of Ms De Vita could be viewed as ‘too little too late’ but taking into account all of the evidence of the claimant’s illness it was no more serious than that.[26]The claimant was therefore wrongfully dismissed, that is to say, dismissed in breach of contract, because she was not given notice of termination. Had there been a contractual term in place allowing for payment to be made in lieu of notice – itself in doubt given that the claimant denied receiving any document to that effect – then that term would have been broken as no payment was made at the point of termination, or at least the next normal opportunity to do so.[27]However, the claimant was later paid the value of her notice entitlement of one week, and so despite her complaint succeeding on the merits, she has been fully compensated for the breach and it is not appropriate to award further damages or other compensation.