IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
PERSONAL CARE LIMITED
Reference:  TRE201
Hearing Date: 21
H G Griffin, Chairman
For the Claimant: In
For the Respondent: Mrs
A Etienne, Director
The Claimant was not dismissed by the Respondent and his claim for unfair
dismissal is therefore rejected.
The Claimant’s claim for direct race discrimination is rejected.
The Claimant’s claim for harassment is rejected.
1. The Respondent
is a company which owns a residential care facility. The Respondent employed the Claimant as
a chef at one of its care homes (“Home”) between June 2015 until
the November 2017.
Claimant’s case as formulated in his Claim Form
2. By a claim
form presented on 17 November 2017, the Claimant brought the following
dismissal/failure to pay notice pay;
discrimination on the grounds of the protected characteristic of race; and
related to the protected characteristic of race,
3. By a response
form presented on 11 December 2017, the Respondent defended the Claims. The Respondent denied that it dismissed
the Claimant, submitting that he resigned on 7 November 2017.
4. The Claimant
withdrew a claim for unpaid holiday pay at the Case Management Meeting on 27
5. The Respondent
accepted that the Claimant was an employee and had sufficient continuous
employment claim protection from unfair dismissal.
6. The issues
between the parties which fell to be determined by the Tribunal were as
a) As a
preliminary issue, did the Respondent dismiss the Claimant?
b) If so, what
was the reason for the Claimant’s dismissal and did the
Respondent’s decision to dismiss fall within the range of reasonable
responses of a reasonable employer?
c) Was the
Claimant entitled to receive notice to terminate his employment?
d) Did the
Respondent treat the Claimant less favourably than it treated or would treat
e) If so, was
such treatment because of race?
Did the Respondent engage in unwanted conduct
towards the Claimant?
g) If so, was
such unwanted conduct related to the protected characteristic of race?
h) If so, did the
conduct have the purpose or effect of either violating the Claimant's dignity
or creating an intimidating, hostile, degrading, humiliating or offensive
environment for the Claimant?
7. In advance of
the Hearing, the Tribunal received written witness statements on behalf of the Respondent
Ms A Etienne (Managing Director);
Ms L Sheldon (Manager);
k) JP (employee);
IDS (employee); and
m) DW (employee).
8. The Claimant
only provided the Tribunal with his witness statement at the start of the
Hearing. The Tribunal therefore adjourned to allow the Tribunal to read the
Claimant's witness statement.
9. The Claimant,
Ms Etienne and Miss Sheldon each gave evidence under oath. Although the
Tribunal read the Respondent’s other three witness statements, it could
not attach any significant weight to them as the Claimant was unable to cross-examine
the witnesses on their evidence.
10. The Respondent
provided an agreed file of documents to which each party referred during the
course of the Hearing.
11. Both parties
made oral submissions to the Tribunal.
12. The Tribunal
considered all of the evidence, both written and oral. However, for the purpose of this
judgment, it summarises here only that evidence which it considers to be
relevant to the issues.
dismissal - Preliminary Issue
13. The Tribunal had
to determine whether the Respondent dismissed the Claimant or whether the
14. At the
Hearing, the Claimant stated that he was unsure of whether he was dismissed on
6 November or 7 November 2017. The
Tribunal therefore considered both incidents, as set out below.
15. In his role as
Chef, the Claimant was not only responsible for preparing meals but also for
kitchen hygiene and safety (including the appropriate storage of food). The Claimant acknowledged in his
evidence that ensuring that the kitchen was clean and hygienic was his
responsibility, although he had an assistant to help him.
16. The Claimant
received one written warning during his employment, although the Tribunal saw
records which showed that Ms Etienne had reason to speak to the Claimant about
cleanliness, food storage and presentation of food for the residents on a
number of occasions. The Claimant
felt that Ms Etienne interfered too much in his work and he resented her
involvement in planning menus.
6 November 2017
17. On 6 November
2017, the Claimant attended his normal morning shift. The Claimant gave
evidence that he prepared lunch for the residents and then helped the kitchen
assistant to clean the kitchen. On leaving the kitchen after lunch, the
Claimant was satisfied that the kitchen was clean and ready for his next shift.
He gave evidence that the tinfoil was too hot to remove from the grill at that
18. During the
Claimant's absence between shifts, Ms Etienne went to check on the state of the
kitchen. Both Ms Etienne and Miss Sheldon gave evidence that that the Claimant
knew that Ms Etienne would be inspecting the kitchen that day and the Claimant
did not dispute this.
19. Ms Etienne
gave evidence that the kitchen was dirty and in a very poor state of hygiene. She
gave evidence that:
a) the foil under
the grill had not been changed and was burnt with the remnants of food
b) there were
un-wiped food spillages on the gas cooker;
c) the bin had
been emptied but not cleaned, left with old vegetable peel at the bottom of the
d) the serving
table was ingrained with grease and was dirty underneath;
e) the plastic
serving containers had fingerprints and black marks all over them;
the freezer had food stains on it;
g) underneath the
sink and the serving hatch there was broken glass and the floor had not been
swept or mopped; and
h) food in the
fridge was uncovered, out of date and stored without labels or dates on them.
20. Upon his
arrival for his evening shift, the Claimant found Ms Etienne, Miss Sheldon and
other members of staff cleaning the kitchen with chemicals.
21. In his claim
form, the Claimant alleged that Ms Etienne shouted at the Claimant:
“I don't want to see you! Go, you home, go
away you are finished you left my kitchen dirty".
Claimant’s evidence at the Hearing was that Ms Etienne looked at him
“as though he was the devil” and shouted at him: “I don’t want to see you! It’s finished! Fu*k off!”
23. The Claimant
gave evidence that, for between 10 and 15 minutes, Ms Etienne repeatedly asked
him "what are you doing here? Go
away". The Claimant said that he was "confused". The Claimant said that he did not understand why Ms
Etienne hated him so much and that he was really angry to be spoken to in this
way. The Claimant said that he eventually left the premises and had a sleepless
24. In her
evidence, Ms Etienne denied that she had lost her temper, shouted or swore at
the Claimant. She said that when
the Claimant arrived at the kitchen, she told him to walk with her as she
pointed out the issues to him. She
acknowledged that she strongly expressed her disappointment, but denied that
she swore at the Claimant. She told
the Claimant that he could not cook in the kitchen, that she would have to
prepare dinner in the other kitchen and that he should go home and return the
following day to discuss the situation with her.
25. In her
evidence, Miss Sheldon described Ms Etienne as being more “exasperated” than angry and gave
evidence that Ms Etienne said words such as “for goodness sake, what’s going on with this kitchen, its filthy.” Miss Sheldon did not hear Ms Etienne
swear and she gave evidence that Ms Etienne did not tend to swear. Miss Sheldon described herself as being
“more of a swearer” than
7 November 2017
26. The Claimant gave
evidence said that he arrived at work before his shift was due to start at 8am
on 7 November 2017. Both of the
Respondent’s witnesses disputed this evidence and stated that Ms Etienne
was obliged to prepare breakfast for the residents that morning due to the
Claimant's absence. The
Claimant then conceded that he was late for work that day.
27. In any event,
upon his arrival the Claimant went straight to the office to see Miss Sheldon.
The Claimant gave evidence that Miss Sheldon said to him:
"Your job is finished. What are you going to do now?"
28. The Claimant
said that he realised at this point that his employment had been
terminated. He therefore handed
over his key to Miss Sheldon. He gave evidence that he then saw that his locker
was empty. He therefore left the premises.
29. Miss Sheldon
denied telling the Claimant that his employment had been terminated. She gave
evidence that she did not have the authority to do so.
30. Miss Sheldon gave
evidence that she asked the Claimant how he could have allowed the kitchen to
become so filthy. According to Miss Sheldon, the Claimant simply shrugged his
shoulders and handed over his keys. Miss Sheldon said that she instructed the
Claimant several times to go and speak to Ms Etienne (who was in the kitchen)
but the Claimant did not want to speak to Ms Etienne because he thought that
she was too busy. The Claimant
confirmed Miss Sheldon’s evidence on this point, and said that there was
no point in speaking to Ms Etienne because his employment had been terminated. The
telephone then rang and when Miss Sheldon turned round again to speak to the
Claimant, he had left her office. Miss
Sheldon said that she assumed that the Claimant had gone to the kitchen to
speak to Ms Etienne. It was only
later that she discovered that he had not spoken to Ms Etienne but had instead
left the premises. Miss Sheldon
assumed that he had walked out and resigned, but did not understand why because
she did not believe that the poor state of the kitchen was a “sackable offence”.
31. Miss Sheldon
denied that anyone cleared out the Claimant’s locker. She confirmed that she did this herself
approximately one week later and put the Claimant’s belongings into a
safe to await collection.
32. The Claimant submitted
that, because of the protected characteristic of race, the Respondent treated
the Claimant less favourably than other employees. The Claimant is of African origin and is
33. The Claimant
identified the following alleged acts as amounting to less favourable
written warnings when other members of staff did not receive such written
b) the Respondent
failing to put the Claimant on training courses when other members of staff were
placed on such courses;
c) Ms Etienne shouting
and swearing at the Claimant more than she did at other members of staff; and
d) the Respondent
providing unfavourable references about the Claimant to potential new
34. The Claimant
alleged that he received more written warnings compared to other members of
staff and that this amounted to less favourable treatment (“Warning
Allegation”). He alleged that
such less favourable treatment was because of race. The Claimant did not identify a specific
35. The Claimant gave
evidence that, in his opinion, Ms Etienne’s informal discussions with him
about his performance were unfair, as was the only written warning which he
received on 15 August 2017. Although the Claimant accepted that some of Ms
Etienne’s criticisms were fair, he did not believe that a written warning
was appropriate because he “did his
best” and sometimes the problems were not his fault.
36. The Claimant
also gave evidence that, after receiving the warning, Ms Etienne told him to
keep it a “secret”. The alleged requirement for secrecy led
the Claimant to believe that he was being treated differently to other members
of staff. The Claimant did not
provide any further evidence of less favourable treatment.
37. In her
evidence, Ms Etienne confirmed that, contrary to the Claimant’s belief, other
employees received written warnings but these were private matters which the
Respondent (and the employees in question) did not share with other members of
staff. Ms Etienne gave evidence that she did not tell the Claimant that he had
to keep his warnings secret. Ms
Etienne only informed him that the disciplinary process was confidential, as
was the case for all employees
38. The Claimant
alleged that the Respondent failed to allow the Claimant to attend training
courses when other members of staff were placed on such courses
(“Training Allegation”). The Claimant identified the carers in the
Home as comparators. The Respondent
disputed that the carers were appropriate comparators because they had very different
training requirements to that of a trained chef.
39. The parties
agreed that, after the Claimant requested training, Ms Etienne:
a) provided the
Claimant with login details and a password to allow him to undertake training
with an online provider; and
b) instructed the
Claimant to investigate training courses at Highlands College.
40. In relation to the online training, the
Claimant had difficulties logging into the online system, and Ms Etienne told
him that he could only do the training from the computer at work. It was unclear to the Tribunal whether
or not the Claimant tried to undertake this training again. It was clear from the evidence that the
Claimant believed that Ms Etienne should have done more to help him.
41. In relation to
the Highlands College course, the Claimant identified a course and gave Ms
Etienne a brochure. However, Ms
Etienne told him to provide specific details, including the cost of the course
and when it would take place. The
Claimant did not provide this information and Ms Etienne gave evidence that she
could not simply agree to the training requested by the Claimant without
knowing these details. Ms Etienne
emphasised that she was happy to pay for training, but that the onus was on the
Claimant to provide the details.
The Claimant did not dispute this.
Shouting and swearing
42. The Claimant
alleged that Ms Etienne shouted and swore at the Claimant more than at other
members of staff and that such alleged less favourable treatment was because of
the protected characteristic of race.
43. Other than the
incident on 6 November (outlined above), the Claimant did not provide any
evidence to support his allegation that Ms Etienne shouted and swore at
him. As set out above, the Tribunal
did not accept that Ms Etienne shouted and swore at the Claimant on 6
November. It was clear to the Tribunal
that the Claimant disliked being criticised by Ms Etienne and that the Claimant
believed that he should have been given more scope to run the kitchen without
44. The Claimant
alleged that at an interview with a potential new employer (the date of which
was unclear), he was informed that he was going to be offered the job. However,
when he returned to work, he gave evidence that Ms Etienne was "furious" and that she said that she
would state in her reference that the Claimant "always leaves my kitchen dirty". The Claimant alleged that he
was not successful in securing this job and that this must have been because of
a poor reference from Ms Etienne.
45. The Claimant
did not provide any evidence that the potential employer requested a reference
from the Claimant and Ms Etienne denied that the Respondent ever received such
a reference request. In
cross-examination, the Claimant acknowledged that the Respondent provided two
favourable references after his departure from the Respondent. These two references helped him to
secure new employment.
46. The Claimant alleged
that Ms Etienne told him to "go [to
Africa] and marry there and never come back." The Claimant submitted that these
words amounted to 'unwanted conduct' which had the purpose or effect of
violating the Claimant's dignity or creating an intimidating, hostile,
degrading, humiliating or offensive environment for the Claimant.
47. The Claimant
submitted that the unwanted conduct was related to the protected characteristic
48. The Claimant
gave evidence that Ms Etienne said the above words to him upon her return from
holiday when she was angry with him. The Claimant said that Ms Etienne said the
words in a "jokey way" but
that he did not take it in that way.
The Claimant gave evidence that she referred directly to Africa, and
that it was clear from her tone and the way she was looking at him that she did
not want him to return from his holiday.
questioned by the Tribunal, both Ms Etienne and Miss Sheldon gave evidence that,
having just returned from her own holiday, Ms Etienne went to the kitchen for a
chat with members of staff. The
topic of holiday romances was discussed and, as the Claimant was shortly to go
to go on holiday to Kenya, Ms Etienne asked him what Kenya was like and whether
she would she would like it as a holiday destination. It was then suggested that while the
Claimant was on holiday, he might enjoy a “holiday romance”. Ms
Etienne teased the Claimant about finding a “girlfriend” and she said
that the Claimant would go on his holiday, meet a nice woman, marry her and
never come back.
50. In her
evidence, Miss Sheldon said that the whole discussion was in good humour and
she was certain that there was no malicious intent. She denied the Claimant’s
allegation that Ms Etienne was angry with him at the time. Indeed, Miss Sheldon said that everyone
was ‘having a laugh’,
including the Claimant.
51. The Claimant
subsequently confirmed that Miss Sheldon’s evidence about the context of
the discussion was correct (ie that Ms Etienne said the words in the context of a
discussion about holiday romances).
The Claimant then made it very clear to the Tribunal that he strongly objected
to Ms Etienne and the other members of staff discussing his personal life in
52. The Tribunal found the Claimant to be an
inconsistent and unreliable witness, whose evidence changed significantly
during the course of the Hearing.
On several occasions, it was clear to the Tribunal that the Claimant was
either taking words or actions out of context or deliberately omitting key
facts from his evidence.
53. By contrast, Ms Etienne and Miss Sheldon
were each consistent in their evidence when questioned by the Tribunal.
dismissal – Preliminary Issue
Tribunal had to decide whether a dismissal took place. The burden of proof
falls on the employee to show that dismissal has occurred. The standard of
proof is that of the "balance of probabilities" and the Tribunal must
consider whether it was more likely than not that the contract of employment
was terminated by dismissal rather than for another reason, such as
55. The Tribunal considered the evidence of
both parties to decide whether the words used by:
a) Ms Etienne on 6 November 2017; and/or
b) Miss Sheldon on 7 November 2017,
amounted to an express dismissal. In
this case, there was a dispute between the parties as to what words were used.
56. Having considered the evidence,
particularly in light of the Claimant’s unreliable evidence, the Tribunal
did not accept the Claimant’s evidence that Ms Etienne told the Claimant
to “Fu*k off”. The
Tribunal accepted Ms Etienne’s evidence that she walked around the
kitchen with the Claimant, pointing out each issue to him and that she told him
to go home so that she could continue cleaning. The Tribunal was in no doubt
that Ms Etienne was exasperated and that she spoke forcefully to the Claimant.
57. The Tribunal
considered whether, in all the circumstances, the words used by Ms Etienne (ie the instruction
that the Claimant go home and return the following day) could be interpreted as
a dismissal in the circumstances.
The Tribunal was satisfied that, based on all the evidence, it would
have been evident to any reasonable employee that Ms Etienne sent the Claimant
home early so that she could finish cleaning the kitchen. No reasonable employee would have
considered themselves to have been dismissed in this situation, and the
Tribunal did not believe that the Claimant thought as much himself. The Claimant’s own evidence was that
he was “confused” and he
was clearly worried that he may lose his job. However, being worried that one might lose
one’s job because of misconduct does not amount to a dismissal in law.
58. The Tribunal
therefore concluded that the Respondent did not dismiss the Claimant on 6
59. With regards
to the conversation with Miss Sheldon on 7 November 2017, the Tribunal accepted
Miss Sheldon's evidence that:
a) she did not
tell the Claimant that his job had finished;
b) she did not
empty the Claimant’s locker that day; and
c) she instructed
the Claimant to go to speak to Ms Etienne, which he refused to do.
60. In view of the
above, the Tribunal found that there was no dismissal on 7 November 2017.
61. The Tribunal
therefore concluded that the Claimant resigned from his employment on 7
November 2017, and the Claimant’s claim for unfair dismissal is therefore
62. Since the
Claimant resigned, his claim for wrongful dismissal (notice pay) is also rejected.
Direct race discrimination
63. The Tribunal
first considered each of the Claimant’s allegations individually:
a) In relation to
the Warning Allegation, the Tribunal noted that although Ms Etienne spoke to
the Claimant on a number of occasions about cleanliness and food hygiene, the
Claimant only received one written warning. On the evidence provided, the Tribunal
did not accept that the Claimant was treated less favourably in this regard.
b) The Tribunal
saw no evidence in support of the Claimant’s claim that Ms Etienne
shouted and swore at him more than at other members of staff. Indeed, the Tribunal saw no evidence
that Ms Etienne shouted or swore at the Claimant at all. The Tribunal suspected that the Claimant
considered firm instructions to amount to ‘shouting’. The Tribunal did not accept that the Claimant
was treated less favourably than others in this regard.
c) In relation to
the Training Allegation, the Tribunal did not consider that the carers at the
Home were suitable comparators as their training requirements were entirely
different to those required for a trained chef. The Tribunal therefore
constructed a hypothetical comparator who resembled the Claimant in all
material respects, save that the comparator did not share the Claimant's
race. The Tribunal compared the
Respondent's treatment of the Claimant to the treatment which, based on the
evidence, the Tribunal considered the Respondent would have given to the
hypothetical comparator. The
Tribunal concluded that the Respondent would have treated both the Claimant and
the hypothetical comparator in the same way, such treatment being because of
their position as chef rather than because of race. The Tribunal therefore did not accept
that the Claimant was treated less favourably in this regard.
64. In view of the
Tribunal’s findings that the Claimant did not suffer any less favourable
treatment as claimed, the Claimant’s claim for direct race discrimination
considered all of the evidence, the Tribunal was satisfied that Ms
Etienne’s comment did amount to "unwanted conduct". The Claimant clearly objected to his
personal life being the source of jokes in the workplace, notwithstanding the
fact that he apparently engaged in the conversation at the time.
having carefully considered all of the evidence regarding Ms Etienne’s
comment, the Tribunal was satisfied that it was not related to the protected
characteristic of race. This was a
comment made in the context of a conversation about holiday romances and the
Tribunal was unable to draw any inference to suggest that the comment was
related to the Claimant’s race.
67. In view of the
above, the Claimant’s claim of harassment is rejected.
Mrs H G Griffin, Chairman
Date: 5 July 2018