Member J Chalmers Tribunal Member D Frew Mrs G Lugenga v Peacock Medicare Ltd — 2019

The claimant worked as a Care Assistant at Woodlands Nursing Home from 8 March 2016 until her resignation effective 17 July 2017. She brought race discrimination claims under sections 13, 26, 27 and 39 of the Equality Act 2010, alleging direct race discrimination, racial harassment, victimisation and discriminatory unfair constructive dismissal. The tribunal dismissed all of those claims.

The tribunal rejected the claimant's central allegations that Pauline Flynn and Cathy Paterson had used racially abusive language in May, June and August 2016. It accepted that Pauline Flynn had sworn at the claimant on occasions, but it did not accept that the language alleged by the claimant was used, and it found the evidence of Cathy Paterson and the supporting witnesses more reliable on those incidents.

On the management response to the November 2016 complaints, the tribunal found that moving the claimant to the first floor was intended to diffuse the situation between her and Pauline Flynn, and that working on the first floor was no more challenging than working on the ground floor. It also found that the decision not to take formal disciplinary action against Pauline Flynn followed the claimant's own wish that the matter be sorted out rather than pursued disciplinarily, and that Pauline Flynn was nevertheless warned in writing that her conduct was unsatisfactory and that she should address the shortcomings identified.

The tribunal further found that the January 2017 investigation into complaints by John McMullan and Kirsty Scott was prompted by the seriousness of those complaints, including a possible Working Time Regulations issue, and would have been pursued in the same way for any employee. It accepted Cathy Paterson's evidence that the investigation meeting on 5 January 2017 was not conducted in an intimidatory manner, even though some questions were repeated. The tribunal then found that the claimant did not return to work after the resident assault on 7 January 2017, that the respondents invited her to a welfare meeting, arranged occupational health and had no access to counselling services or a practice of paying for glasses for staff.

The victimisation claim failed because neither the verbal complaint of 9 November 2016 nor the grievance of 29 November 2016 contained an allegation that the Equality Act 2010 had been contravened, so they were not protected acts. In any event, the tribunal found that the first-floor move and the disciplinary investigation were not detriments and were explained by non-discriminatory reasons. Because the underlying discrimination claims failed, the tribunal also held that the respondents had not breached the implied term of trust and confidence, so the claimant's resignation did not amount to discriminatory constructive unfair dismissal. The tribunal did not need to determine time bar.