Litigant in Person For the v Respondent — 2023

The claimant, a Weekend Duty Support Officer, was suspended after an incident on 20 March 2021 in which she was found asleep at reception while a vulnerable resident needed assistance. After investigation and disciplinary proceedings she received a final written warning, and the appeal upheld that warning. The tribunal accepted the respondent’s evidence that this was a lenient response to conduct that could have justified dismissal.

The race discrimination claim failed. The claimant relied on Karen Thomas as a white comparator, but the tribunal found Ms Thomas was not in materially similar circumstances. It also rejected the claimant’s interpretation of the phone records and found no evidential basis for concluding that the final written warning was imposed because of race. The tribunal noted that the claimant’s own evidence largely framed the dispute as connected to giving evidence for Mr Ikie rather than race.

The Working Time Regulations claim also failed. The tribunal accepted that the contract was poorly drafted because it referred to breaks requiring adequate cover, but found the respondent’s working arrangements did not prevent breaks being taken. It found there was a custom of using a note or laminated placard to indicate a break, that a back room was available, and that quiet periods existed on reception. The tribunal also held that, given the nature of the work in a residential institution, Regulation 21(c)(i) would apply and any interruptions were met by adequate compensatory rest.

The amended s.45A(1)(f) ERA 1996 detriment claim failed as well. The tribunal accepted that the claimant had alleged an infringement of her WTR rights, but held that the final written warning was imposed because she had fallen asleep on duty, not because she had given evidence in the earlier tribunal proceedings. It also rejected the allegation that refusal of overtime after her return from long-term sickness was retaliatory, finding the reasons were her recent absence, the warning, prior performance issues and problems with taking additional shifts, and that there was no causal link to her WTR complaint.