Miss Deyomka Shirley v T L Care (Havering) Limited — 2020

Miss Deyomka Shirley, a black Jamaican Senior Care Assistant, worked for T L Care (Havering) Limited from 10 March 2017 until her summary dismissal on 15 January 2019. She alleged that the lower pay rate for night staff, the handling of gifts and Secret Santa, break arrangements, annual leave decisions, the treatment of complaints, the issue of a verbal warning, and her dismissal were all acts of race discrimination, and that her dismissal was also victimisation.

The tribunal found that the pay differential between day and night Senior Care Assistants pre-dated the claimant's employment and reflected the Respondent's view that day work carried greater responsibilities. It accepted the Respondent's evidence that gifts were intended to be shared fairly, found no proved race discrimination in relation to Secret Santa, breaks, shift length, annual leave, or the handling of the 5 June 2018 resident incident, and held that the claimant's grievance of 20 May 2018 was probably never received by management. It also found that the 22 July 2018 verbal warning was handled in a procedurally poor way, but that this did not show race discrimination.

On the dismissal, the tribunal found that the decision was taken jointly by Laura Hummerston and Teresa Quinn after Yvonne Bergin's complaint and earlier complaints from other staff. It held that the principal reason was management's perception that the claimant was intimidating in the workplace, coupled with a desire to remove her before she reached two years' service, and that race played no part. The tribunal also accepted that the failure to run a disciplinary process, explain the reason for dismissal, or offer an appeal was due to the Respondent's understanding of ACAS advice that a formal procedure was not required for an employee with less than two years' service.

The victimisation claim failed because the tribunal found that, before dismissal, the claimant had not made a protected act within section 27 Equality Act 2010: raising the pay differential between day and night staff was not, on the tribunal's findings, an allegation of race discrimination. Because all claims were dismissed, the tribunal did not need to decide the limitation issues or the requested ACAS uplift.