In person For the v Respondent — 2019

The claimant started work on 1 August 2014 as a Chef at Kingfisher Court. The tribunal found she was black and that she was the only black person in the kitchen. It also recorded earlier disciplinary action in 2015, including a final written warning for conduct towards colleagues, and later events in 2016 after the respondent received concerns about kitchen hygiene and food safety.

After an Environmental Health Officer inspection on 14 July 2016 identified food safety problems, the claimant was suspended on full pay and investigated for gross negligence and a major health and safety breach. Mr Haigh initially dismissed her on 18 August 2016, but Mr Turner allowed her appeal in part, reinstated her, and substituted a fresh final written warning to remain on file until August 2017. The tribunal found that the claimant then refused to return to work as instructed, did not attend later disciplinary hearings, and did not attend the appeal hearing in March 2017.

The unfair dismissal claim failed because the tribunal found the reason for dismissal was unauthorised absence after reinstatement, not race. It accepted that the respondent held a genuine belief on reasonable grounds, that the claimant had been instructed to return on 22 December 2016, and that the respondent had conducted a reasonable process. The tribunal held the dismissal was within the range of reasonable responses and also found the claimant had breached contract by deliberately failing to return to work, so the wrongful dismissal claim failed.

The race harassment and race discrimination claims failed because the tribunal rejected or did not accept the claimant's evidence about several alleged comments. It found that Ms McPhillips did not tell the claimant to mop the kitchen in the way alleged, but issued a reasonable management request; that the alleged comments by Mr Gorman and Mr Marsh were not proved in the way advanced by the claimant; and that there was no evidential basis for treating the conduct as because of race. The tribunal also found the comparator evidence did not support less favourable treatment, and it did not discern any pattern of racially discriminatory treatment from the respondent's statistical evidence.

The victimisation claim failed because the tribunal did not accept that the 5 July 2016 grievance amounted to a protected act. It held that the later complaint, if the 9 January 2017 email was relied on, did amount to a protected act, but that it did not significantly influence the dismissal or the other alleged detriments, including passport requests. The tribunal also dismissed the holiday pay, unauthorised deduction from wages, Working Time Regulations and other money claims for lack of evidence, and found the claimant had exceeded her annual leave entitlement and had been paid £600 gross for holiday on 11 June 2017. It further recorded that the respondent was entitled to recover the £4,000 gross paid to the claimant during the period it believed she was not working.