Mr J Murebwa v Walsingham Support — 2020

Mr J Murebwa worked as a support worker for Walsingham Support from April 2017. The tribunal found that he sustained a hand injury in May 2017 while caring for service user PP, but did not report the incident in the manner required by the respondent's incident policy. In September 2017 safeguarding concerns were raised about his conduct towards PP, a VA1 referral was made, and the City and County of Swansea safeguarding co-ordinator requested that he be suspended pending investigation.

The tribunal held that the suspension, the continuation of the suspension while external safeguarding and police processes were ongoing, the initial review meeting on 19 October 2018, and the dismissal were all within time. It treated the suspension complaint as a continuing act and said that, if that analysis were wrong, time would have been extended on a just and equitable basis under section 123 of the Equality Act 2010.

On the merits, the tribunal rejected the direct race discrimination claim. Applying sections 13, 23 and 136 of the Equality Act 2010 and the authorities it cited on burden of proof and comparators, it found no basis to infer that the claimant was treated less favourably because of race. It accepted that the respondent was acting on safeguarding concerns and the direction of the local authority safeguarding co-ordinator, and it found that Ms Leanna Morris was not a realistic comparator because her role and the options open to the respondent were materially different.

The tribunal also found that the claimant had not passed his initial review period. It held that the prolonged suspension and unresolved safeguarding concerns were inconsistent with any conclusion that his employment had already been confirmed. The dismissal was based on the claimant's failure to report the May 2017 injury and on his having supported PP on a 1:1 basis contrary to the 2:1 care plan. The breach of contract claim failed because the claimant remained on probation and was entitled only to one week's notice, not the longer notice he claimed.