ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102823/2023 Hearing Held at Edinburgh on 12, 13, 14, 15, and December 2023, and Members’ Meeting on February 2024 Employment Judge: M A Macleod Tribunal Member: Z Van Zwanenberg Tribunal Member: A Matheson Jossel Eleserio v Represented by Mr M Briggs Advocate Instructed by Mr N Paterson Solicitor Morningside Manor Ltd and 2 others — 2024

The claimant, a Filipino Senior Care Assistant employed from 19 November 2021, was dismissed on 16 November 2022 after a PDP and disciplinary process in which the tribunal preferred the evidence and contemporaneous notes kept by Mrs Millar. The tribunal accepted that management had recorded concerns about the claimant’s leadership, communication and performance in the care home, and that the appeal later upheld the dismissal on the same basis. It rejected the claimant’s case that dismissal was driven by union membership or by her having asserted statutory rights. The claims against the second and third respondents were dismissed after the claimant confirmed they were withdrawn.

The unlawful deduction claim succeeded only in part. The tribunal held that £1,818.23 had been deducted from the claimant’s final salary without lawful basis because the contractual documents did not authorise the respondent to take that sum from wages. It accepted that the £100 training bond deduction was contractual, and it did not uphold the separate complaint about underpayment for additional hours because the contractual rate and the sum said to be due were not shown with sufficient clarity.

The tribunal dismissed the automatic unfair dismissal claim under s.104 ERA 1996 / s.152 TULRCA 1992, finding that the real reason for dismissal was performance concern, not trade union membership or use of union services. It also dismissed the race discrimination and harassment claims, holding that the instruction not to speak Filipino/native language in front of residents was a reasonable workplace requirement in a care-home setting and did not amount to less favourable treatment or harassment because of race. The related s.39(2)(c) EqA 2010 dismissal claim failed for the same reason, and the Employment Relations Act 1999 accompaniment complaint failed because Ms Williamson was eventually allowed to attend and speak at the hearing.