Mrs T Dilibe v Woodhaze Limited t/a Window to the Womb (Swansea) and others — 2023

The claimant, Mrs T Dilibe, was recruited from Nigeria as a sponsored full-time sonographer and started work on 19 March 2021. The tribunal found that the handbook was not proved to have been given to her, that the contract contained a penalty clause for early departure, and that the probationary arrangements placed her in a more vulnerable position because of her Tier 2 sponsorship.

The tribunal found that she was repeatedly required to carry out general cleaning that was outside a sonographer's role, including vacuuming and mopping, and was pressed to do so both inside and outside the scan room. It accepted that the First and Second Respondents linked refusal to cleaning with dismissal and sponsorship consequences, and held that this conduct was related to race. The harassment claim succeeded against the First and Second Respondents on those matters, but the allegation that the Third Respondent threatened deportation on 10 November 2021 was not proved and the claims against him were dismissed.

The tribunal also found that the claimant's performance was criticised on unfounded grounds. It accepted the evidence of the clinical leads that they had no clinical concerns, and held that the 8 September 2021 and 17 November 2021 probation extensions, together with the 8 November 2021 meeting, were driven by the claimant's resistance to cleaning duties rather than by genuine concerns about 2D imaging or personal hygiene. The body-odour allegations were found to be unfounded and humiliating, and direct race discrimination was upheld on those probation and meeting issues as well as on the rostering complaint, which involved long runs of days and shifts whose start times were not properly notified in advance. The tribunal held that a white Australian on a Tier 2 visa would not have been treated in the same way.

The tribunal found that the claimant resigned on 7 December 2021 in response to a repudiatory breach of trust and confidence, and that she was constructively dismissed. It further found that the email of 27 December 2021 amounted to a summary dismissal that brought her notice to an early end. The unlawful deduction from wages claim and the claim for unpaid accrued annual leave were both well founded because the First Respondent had no contractual or written basis to deduct the December 2021 salary or holiday pay.

The victimisation claim failed. The tribunal accepted that the letters of 23 December 2021 and 12 January 2022 were protected acts, but held that the subsequent demands, deductions, sickness handling and direct correspondence were motivated by the respondents' attempt to recover perceived losses and manage the claimant's departure, not by those protected acts. Compensation was not determined in this liability judgment; the tribunal indicated that a remedy hearing would be listed if the parties did not settle.