In person For the v Respondent — 2018

Mr A Okoro, who described himself as black African, began work for Action for Children as an agency worker in January 2016 and was directly engaged from July 2017. The tribunal found that, despite the paperwork issues and the agreed pay discussions, his post remained a casual bank-worker arrangement rather than employment, so the complaint about written particulars under section 38 of the Employment Act 2002 could not attract an award. The tribunal therefore treated him as a worker for the purposes of the discrimination and wages claims.

Applying the Shamoon v RUC and Madarassy v Nomura approach to inferences and burden of proof, the tribunal dismissed the direct race discrimination complaint. It found that the matters relied on by the claimant, including the way colleagues were paid, the delay and errors in his own pay, the night-shift arrangements, and the handling of his planned leave to Nigeria, were explained by the role he performed, by organisational and payroll problems, or by poor communication, rather than by race. The tribunal also rejected the suggestion that white colleagues were favoured because the available evidence showed they were paid for the roles they performed, not because they lacked the claimant's qualification.

The victimisation complaint also failed. The tribunal accepted that the claimant made a protected act on 9 November 2017, but found that the Respondent had a duty to investigate the January 2018 sexual harassment complaint made by another worker and to tell the claimant about the allegations. The investigation, the invitation to meetings, and the disciplinary correspondence were found to have been driven by the complaint and the Respondent's disciplinary process, not by the claimant's protected act. The tribunal noted that the process ended with a Final Written Warning after the disciplinary meeting was held in his absence.

The unlawful deductions claim succeeded. The tribunal found that the claimant worked 608 hours between 3 July 2017 and 26 January 2018 but continued to be paid at the wrong hourly rate. It calculated that he had accrued 73.39 hours of holiday, that he was entitled to £760.27 in lieu of untaken holiday, and that he had been paid £518.04, leaving a holiday shortfall of £242.23. Added to £760 of underpaid hourly wages, the total unlawful deductions were £1,002.23, which the tribunal ordered the Respondent to pay.