Mr D Hill v The Berkeley Group plc and 1 other — 2020

The claimant was a self-employed contractor supplying services through Commodore Kitchens at the Southall site. The tribunal found he was not a contract worker within s.41 Equality Act 2010 because he was not employed by another person, applying the approach discussed in Muschett v HM Prison Service. It therefore dismissed the claims on that basis, but also went on to decide them in the alternative if it was wrong about status.

The core events concerned right-to-work checks on 23, 26 and 27 April 2018. The claimant was a South African national married to a Polish national. The tribunal found the respondents operated a site-wide policy requiring prescribed Home Office list A or B documents from all employees and contractors, with reasons including compliance, modern slavery duties, reputational concerns, avoidance of immigration enforcement intervention, and operational consistency across many sites. It found the claimant was asked for further documentation because he was a non-EEA national and not because of race or marriage.

The direct discrimination claims for race and marriage failed, as did the race and disability harassment claims. The tribunal found the evidence did not establish facts from which discrimination could be inferred under the s.136 burden of proof, considered with the authorities cited in the judgment including Igen v Wong, Barton, Laing, Madarassy and Raj. It accepted that Mr Bada and Mr Dow were dealing with the documentation and the escalating confrontation, but found no less favourable treatment because of race or marriage. The tribunal also rejected the allegations against Mr Wilkinson, holding that the remark about "not for much longer" referred to the UK referendum outcome on EU membership and that the comment about immigration checks "especially in this area" was about the Southall site and past illegal-working incidents, not race.

The indirect race discrimination claim failed only after the tribunal accepted that some disadvantage arose for non-EEA nationals married to EEA nationals. Relying on Badara v Pulse Healthcare Ltd and Okuoimose v City Facilities Management, it held the respondent's aim of ensuring legal working status, together with modern slavery, reputational and economic considerations, was legitimate and that the universal document-checking policy was proportionate. The victimisation claim failed because, although the 28 April 2018 email was a protected act, the tribunal found no detriment in Ms Pritchard's handling of the complaint: she offered to investigate, preserved anonymity so far as possible, and initiated a wider right-to-work review when the claimant gave no examples and then asked her not to continue.

The discrimination arising from disability claim was also dismissed. The tribunal found it had not been properly articulated, with no clear identification of the unfavourable treatment or of the "something" arising from disability. It also found Mr Wilkinson did not know, and could not reasonably have been expected to know, of the claimant's anxiety. No monetary award was made because all claims failed.