Miss L Subramaniam v Autism at Kingswood — 2023

Miss L Subramaniam was employed by Autism at Kingswood as a support worker from 17 February 2020. The case concerned a series of complaints about race discrimination arising from management of her probation, lateness, rota allocation, reduced shifts in July 2020, a request that she work with service user AV, a supervision meeting, comments said to describe her as "bad staff", the way her ideas were received, and the handling of her grievance and appeal. The tribunal found the claimant had been late on occasions, that her probation had been extended because of performance concerns, and that the July 2020 reduction in work reflected service-user changes and the claimant's own limited availability rather than race.

Applying section 13 Equality Act 2010, section 23 comparator principles and the section 136 burden of proof provisions, the tribunal held that the claimant had not established a prima facie case on any direct race discrimination allegation. Where comparators were identified, the tribunal found either that they were not in materially similar circumstances or that they were treated similarly, such as GG whose probation was also extended and DM whose work was also reduced during the relevant period. It also found that the email exchange about dry wipes showed Ms Michie praising the claimant's idea, and that the AV and supervision issues were explained by service-user requirements and the claimant's own communications and conduct rather than by race.

On the grievance process, the tribunal noted that Ms Allen's appeal investigation found no evidence of racial discrimination and recorded that the claimant had undertaken the highest amount of overtime among the sampled staff. The grievance complaint about race discrimination was a protected act for the victimisation claim, but the tribunal found that the later performance improvement plan was put in place because Mr Ncube considered the claimant's performance needed to improve, and that the June 2021 criticism followed a late arrival and rude text exchanges rather than the grievance. It dismissed both the direct race discrimination and victimisation claims and vacated the listed remedy hearing.