Mrs A Nkemnacho v BS Project Services Limited t/a BS Social Care and 1 other — 2019

The Tribunal found that Ms A Nkemnacho, a black Nigerian agency support worker at Beverley Lewis House, pursued claims of direct race discrimination under section 13 EqA 2010 and harassment related to race under section 26 EqA 2010. The merits judgment also recorded that an unfair dismissal claim against her employer, Brook Street Social Care, had been struck out before the hearing against L & Q Living Ltd. The tribunal applied the burden of proof in section 136 EqA 2010 and cited Madarassy v Nomura International Plc when addressing whether the claimant had established facts from which discrimination could be inferred.

On the facts, the tribunal rejected the allegation that staff and tenants made racist remarks about African or Nigerian food being "stinky" or "smelly". It accepted that tenants had sensitivities about strong smells in a communal living setting, that the instruction not to eat strong-smelling food in the lounge applied to all staff, and that Ms Hellawell did not tell the claimant not to eat in the lounge or shout at her as alleged. The tribunal found the claimant's assignment ended after Tenant A's complaint of 17 February 2019 and a subsequent investigation, not because of race.

The tribunal held that the claimant had not established less favourable treatment because of race or harassment related to race, so the discrimination claims were dismissed. In the later costs judgment, the respondent's application under Rules 76 and 78 of the Employment Tribunals Rules 2013 was granted in part: the tribunal accepted that the claimant had acted unreasonably by failing to comply with disclosure, schedule of loss, and witness statement orders, but it declined to make a costs order solely because the claims lacked reasonable prospects. Taking account of the limited evidence about means and the respondent's schedule, it ordered the claimant to pay £250.