In person For the v Respondent — 2019

Mr UM Nwakwu worked as a Homecare Broker for Westminster City Council via Caritas from 24 September 2012 until 30 June 2016. The tribunal heard claims under the Agency Workers Regulations 2010, direct and indirect race discrimination, race harassment, victimisation and unlawful deduction from wages. It dismissed the claim in full.

Applying the burden of proof approach under section 136 Equality Act 2010 and authorities including Shamoon, Igen and Madarassy, the tribunal rejected the allegation that Jackie Roberts made the alleged comment about Africans. It found that the key incident on 11 September 2015 was a misunderstanding over a care package, that the claimant raised his voice at Lucie Menzies, and that the later breakdown in working relations flowed from that dispute rather than from race.

On the direct race discrimination complaints, the tribunal found that the comparisons relied on were not made out. It held that Elizabeth Okone was not shown to be a comparable employee, that the claimant's pay was not shown to be less favourable, and that the withdrawal of flexitime was explained by HR advice that agency workers were not entitled to it. It also found that the meetings with other staff, the alleged supervision by Lucie Menzies, and the checks on workload were explained by the reorganisation and the different roles of the new agency staff.

The indirect race discrimination claim also failed because the tribunal did not accept that there was a general practice allowing employees to work from home one day a week but excluding agency staff. The harassment complaint failed because the alleged daily use of 'kangaroo', 'African goat', 'African bushman' and 'Aborigine' was not proved. The victimisation claim failed because the 30 June 2016 termination was attributed to the claimant not applying for a post in the new permanent structure and the absence of budget for his role, not to the tribunal claim. The unlawful deduction from wages claim failed because the claimant was told to record overtime on timesheets and would be paid for it, but he refused to do so.

Under the Agency Workers Regulations, the flexitime complaint was out of time, the Christmas day-off complaints from 2012 and 2013 were very substantially out of time, and the pay-parity complaint failed on the merits. At the end of the hearing the respondent's rule 76 costs application was refused.