Mr P W Matakanure v Pro Support Limited — 2020

Mr Matakanure worked for Pro Support Limited as a support worker, including overnight sleeping-night shifts. The tribunal recorded that the claimant had complained over time about sleeping-night pay, and that from 27 November 2017 the respondent announced a rate of £67.50 for zero-hours workers, though the claimant was in fact paid £60 per sleeping night before his employment ended on 23 December 2017. The earlier part of the unlawful deduction claim, covering 20 January 2016 to November 2017, was stayed pending the Supreme Court decision in Royal Mencap Society v Clare Tomlinson-Blake and others.

On the later unlawful deduction issue, the tribunal found the claimant had completed five sleeping nights and therefore had been underpaid by £37.50. It accepted the respondent's evidence that the shortfall was due to an error in applying the new rate, and held that section 13(4) ERA 1996 meant the matter was not treated as an unlawful deduction. The claim for the period November 2017 to 23 December 2017 was therefore dismissed.

The race discrimination claim and the harassment claim both failed on the evidence. The tribunal found the claimant had not proved that he was called racist names by service users, that he had made complaints about racist name-calling, or that white employees were given more hours than black employees. It refused his late attempt to amend the comparator case to workers of Jamaican origin. On harassment, it treated the complaint as one of alleged third-party harassment and found no proof that the respondent had been shown to have allowed racially abusive conduct or failed to deal with complaints about it.

The tribunal found that the claimant made qualifying disclosures on 29 June 2016, 9 November 2016 and in the email of 22 December 2017. Those disclosures concerned threats to kill staff, the sleeping-night rate, and backdated sleeping-night pay together with the introduction of unpaid rest breaks. It held, however, that the WhatsApp message sent on 22 December 2017 was not itself a qualifying disclosure, and that the alleged detriments were not proved: the claimant had not shown a failure to protect him from racist abuse, and the reduction in hours was found to have followed his request to work only weekends because of study commitments and another job.

The unfair dismissal claim under section 103A ERA 1996 was also dismissed. The tribunal found that the reason for dismissal was the inflammatory tone of the 22 December 2017 WhatsApp message, which it said urged colleagues to take a stand against the company over backdated sleeping-night pay and unpaid rest breaks. It accepted evidence from the respondent's witnesses that the claimant had been speaking negatively about the respondent and that, after the WhatsApp message, the respondent removed him from the group and said he would receive no further shifts.