Claimant v Alternative Futures Group Ltd and others — 2021

Ms K David-Ogundele, a support worker at Alternative Futures Group Limited, alleged race discrimination, harassment, victimisation and unfair dismissal after a safeguarding allegation that she tied a hoist sling to prevent a male service user from leaving his room. The tribunal held that the Christmas 2017 WhatsApp-group complaint was out of time and refused to extend time. It accepted that the later complaints connected with the disciplinary process formed part of a continuing act, or alternatively that time should be extended, so those complaints were considered on the merits.

On the race discrimination claim, the tribunal dismissed the allegations that Jayne Prichard filled in gaps in the evidence, that the decision to start disciplinary action, dismiss the claimant, refuse to investigate the grievance, or uphold the appeal was because of race, and that Andrea Roach dealt with the appeal with a dismissive attitude. It found Amy Fox and Sandra Murray were not proper comparators for the disciplinary decision because they were not in materially similar circumstances: they were witnesses or reporters of the safeguarding concern, not the person accused of it. The tribunal found the respondent had a non-racial explanation for treating them differently and that race played no part in the decision-making of Alvine Andrews or Andrea Roach.

The harassment and victimisation claims were also dismissed. The tribunal found no satisfactory evidence that the alleged task-refusal incidents by Lilian Dim or Sandra Murray occurred, and it held that the investigation report, dismissal and appeal were the normal progression of a disciplinary process dealing with serious safeguarding allegations rather than conduct related to race. On victimisation, the tribunal accepted that the grievance and appeal letters were protected acts, but found no detriment caused by them: the grievance points were dealt with alongside the appeal by agreement, and the appeal failed because Andrea Roach independently concluded, after further investigation, that the claimant was guilty of serious misconduct.

The unfair dismissal claim failed because the respondent proved conduct as the reason for dismissal and the decision was within the band of reasonable responses under s.98(4) ERA 1996. The tribunal accepted there were errors in the investigation, including incorrect dates and incomplete handling of some material, but found those issues were corrected on appeal and did not undermine the overall fairness of the process. No monetary award was made because all claims were dismissed.