Mr R De Guzman v Care UK Community Partnership Limited — 2023

The claimant worked at Laurel Dene as a team leader and the tribunal accepted that he was seen as a de facto spokesperson for ethnic minority staff. It found that there was an in-group and an out-group at the home, with the in-group mainly white British day staff and the out-group mainly non-white-British night staff, and that Mrs Fisher used the expression "my girls" to describe a favoured subgroup of employees.

The tribunal found that several of the claimant's complaints were protected disclosures and some were protected acts, including the 2018 group letter about different treatment of "foreign workers", the 7 March 2020 concern about the front door being unlocked, the 4 August 2020 resident incident, the 24 August 2020 group grievance on behalf of "immigrant workers", the 30 October 2020 medication complaint, the 11 July 2021 concern about staffing and the August 2021 concern about carers drinking on shift. It held that some of those matters were PIDs but not protected acts because they were not about race.

The disciplinary history concerned the handling of resident incidents, including JH's unexpected death, the PB/SS incident and the PC bruise incident. The claimant received a final written warning in June 2021 and was summarily dismissed on 15 September 2021 by Mr Singh. On appeal, Mr Taylor dismissed the appeal, and the tribunal accepted the claimant's account that the appeal meeting was brusque and that he was told he was guilty. It also found that senior management knew about the claimant's protected disclosures and regarded him as a disruptive force.

On liability, the tribunal found the principal reason for dismissal was that the claimant had made protected disclosures, so the dismissal was automatically unfair under s.103A ERA 1996. It also found that the protected acts were a material part of the reason for dismissal, so the victimisation claim succeeded. The tribunal said that even if the dismissal had been analysed as a conduct dismissal, it would have been unfair under s.98(4) ERA 1996 because of the procedural defects it identified, including the claimant being led to believe the hearing was an investigation, the refusal to let Mr Branco attend, and the short-shrift appeal.

The direct race discrimination claim failed because the tribunal found race played no role in the decision-makers' mental processes. The harassment related to race claim also failed: although the appeal-stage conduct created a hostile environment, the tribunal found it was about the claimant being asked to return documents and not about race. The tribunal said there was no basis for a Polkey reduction, but that any remedy would be reduced by 30% for blameworthy conduct. It directed the parties to try to agree remedy or seek a further hearing if they could not.