M RobisonMr W Muir Mr K Thomson Ms J Adegun v Represented by Mr G Cunningham Counsel The Mungo Foundation — 2019

The tribunal found that the claimant, a black Nigerian national employed as a housing support worker from 2 March 2015 to 14 August 2015, had been dismissed after an incident on 5 April 2015 in which she shouted at a service user, MK, during an altercation. The respondent investigated both the assault on the claimant by MK and the counter-allegation that the claimant had shouted at and grabbed MK. The tribunal recorded that the claimant complained during the process that she was being treated unfairly and later said she had been discriminated against because of her race.

The tribunal did not accept the claimant's evidence on several central matters. It found that her allegation that Bruce Duncan had made a racist comment was not credible, that the diary entry relied on was inserted later, and that she had failed to disclose her later employment with SAMH. It also preferred the respondent's witnesses on disputed facts, while noting that some of them were defensive about the respondent's procedures. The tribunal accepted that there had been no mention of race discrimination or comparators during the disciplinary process until the appeal stage.

Applying the burden of proof provisions, the tribunal considered that some matters would otherwise have raised suspicion, including the respondent's failure to communicate to the claimant how her complaint about the assault on her was being handled, the mistaken reference to a final written warning, and dismissal with notice. It also held that the comparator relied on by the claimant, FH, was not in materially similar circumstances because the alleged shouting incident in that case had not been reported to HR. The tribunal likewise rejected the respondent's proposed comparators as actual comparators for section 23 purposes.

Looking to the reason why the claimant was dismissed, the tribunal accepted that Gayle Patterson's decision was based on the claimant's shouting at MK, her attitude during the disciplinary process, and concern about her suitability for the role during her probationary period. It held that a hypothetical white comparator in the same material circumstances would also have been dismissed, and that the respondent's explanation was adequate and had nothing to do with race. The complaint of direct race discrimination was therefore dismissed and no remedy was awarded.