Mr D Salumah v A2Dominion Housing Group — 2021

The claimant, Mr D Salumah, brought claims of race discrimination and unfair dismissal arising from his dismissal by A2Dominion Housing Group. The tribunal found that the respondent’s principal reason for dismissal was conduct: the claimant’s failure to make a safeguarding referral concerning a resident, KW, after learning of disclosures of self-harm and historic abuse. It accepted the respondent’s evidence that the dismissal decision was taken because the claimant had not followed safeguarding procedures, not because of his race.

On the race discrimination claim, the tribunal considered the claimant’s comparators, including Kelly Hiernaux, Colin Roe and Benn Kiley. It found that Ms Hiernaux was not in the same material circumstances because she admitted her mistake, had reported the matter to her manager, and received a final written warning after mitigation was taken into account. By contrast, the claimant did not report the matter to anyone, including his line manager, and the tribunal rejected his assertion that he had raised safeguarding concerns with Benn Kiley. The tribunal also found that Mr Roe and Mr Kiley were not in the same position as the claimant because they were not the staff members to whom the disclosures were made and were not primarily responsible for making the referral. It concluded that the differences in treatment were explained by the different facts and levels of responsibility, and not by race.

On the unfair dismissal claim, the tribunal applied the Burchell approach and the range of reasonable responses test under s.98(4) ERA 1996. It found that the respondent had a reasonable investigation and reasonable grounds for its belief that the claimant had committed gross misconduct. The tribunal rejected the arguments that the investigation was unfair because he was not accompanied, was denied witnesses, or because Ms Hiernaux’s interview was not included in the investigation report. It found that he had not asked to be accompanied at the investigation meeting, had not shown that he was prevented from calling witnesses, and that the relevant evidence from Ms Hiernaux was already in KW’s contact sheet and was provided to him.

The tribunal also rejected the claimant’s mitigation arguments based on alleged inadequate training, staffing shortages, or the fact that the incident on 20 January 2020 occurred outside his normal working hours. It found that he had been trained in safeguarding, had made previous referrals, and that City Road was staffed in accordance with the contract and was only about 50% occupied at the material time. It held that dismissal was within the band of reasonable responses because the failure to make a safeguarding referral was a serious breach of an important procedure and, in the tribunal’s view, the claimant was the senior support worker who should have made the referral or guided his junior colleague to do so. Both claims were dismissed.