ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4110145/2021 Held at Edinburgh on and November 2021 Employment Judge W A Meiklejohn Tribunal Member Ms J Grier Tribunal Member Mr I Ashraf Ms Nonkululeko Khawula v Randolph Hill Nursing Homes (Scotland) Ltd — 2021

The claimant worked at Ashley Court from 14 April 2015 as a Staff Nurse. In May 2021 a Senior Staff Nurse vacancy arose after Ms McFarlane was promoted. The tribunal found that Ms Morrison and Ms Reive decided not to consider the claimant as an internal candidate, did not advertise the post internally, and instead recruited Ms Kerr externally. The claimant resigned on 18 May 2021 after learning that the post had been filled without internal advertisement.

The race discrimination complaint failed. The tribunal accepted that the claimant believed she had been encouraged to apply and that she was interested in promotion, but it found that Ms Morrison and Ms Reive had genuinely viewed the claimant as lacking initiative and having ongoing time-management issues with care reviews. It held that Ms Livingston was not a proper comparator because there were material differences between her circumstances and the claimant's, and that a hypothetical White British Staff Nurse with the claimant's own track record would also not have been considered suitable. The tribunal therefore found that the treatment was not because of race and that the burden of proof under section 136 EqA 2010 did not shift.

On the unfair dismissal claim, the majority held that the respondent's conduct cumulatively breached the implied term of trust and confidence and entitled the claimant to resign. The majority relied on the failure to advertise internally, the exclusion of the claimant from consideration for the post, the decision to ask her to do Ms Kerr's induction, and the lack of support for the development points identified in her appraisals. The Employment Judge dissented on whether the breach was sufficiently serious to found constructive dismissal. The tribunal held that no fair reason for dismissal had been advanced, so the dismissal was unfair within section 98 ERA 1996.

For remedy, the tribunal accepted a basic award of £3,264, calculated by reference to six years' service and the statutory week's pay figure of £544. It awarded a compensatory award of £2,800, comprising £2,500 for four weeks' loss of earnings and £300 for loss of statutory employment protection rights. It rejected any Polkey reduction, found no failure to mitigate, and made no award for future loss or injury to feelings. The total award was £6,064.