Mr L Mbuisa v Blue Sky Enabling Limited — 2020

Mr Mbuisa worked for about four and a half months as a live-in enabler/support worker and was dismissed on four weeks' notice with effect from 6 June 2018. The tribunal found that by May 2018 Mrs Saxon had concerns about his repeated failure to complete mandatory training and about his relationship with service user AJ. It also accepted that he had complained on 20 March 2018 that service user KR had racially abused him, and that Mrs Saxon involved outside agencies. The tribunal preferred Mrs Saxon's evidence on key disputes and found the claimant less reliable on some matters, including his evidence about whether he had seen KR's care-plan attachments.

The direct race discrimination, harassment and victimisation claims were dismissed. On race discrimination, the tribunal held that the dismissal, the reduction in hours and the alleged failure to address the KR complaint were not shown to be less favourable treatment because of race; they were explained by training non-compliance, performance concerns and the need to give the claimant and AJ a break from each other. Harassment failed because KR was neither an employee nor an agent of the respondent for the purposes relied on, and the tribunal did not accept that the respondent had required the claimant to continue working with KR so as to engage the statutory provisions he cited. Victimisation failed because the protected act was not the reason for the dismissal or reduction in hours, and the night-pay issue pre-dated the complaint about KR.

The remaining claims also failed. The automatic unfair dismissal claim under ERA 1996 s.100 and/or s.104 failed because there was no evidence that the claimant had raised the lock issue during employment and, in any event, his own case was that race was the principal reason for dismissal. The reasonable adjustments claim failed because the tribunal found the respondent had no relevant knowledge of the claimed depression/back-related disadvantage and rejected the asserted PCPs. The notice-pay claim failed because he was on a zero-hours contract and the respondent had met its notice obligation; the holiday-pay claim failed because he did not prove entitlement beyond the seven days already paid. The claim for night-work pay was stayed pending the Supreme Court decision in Tomlinson-Blake v Mencap.