IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

NATHANIEL KUMBUKO

CLAIMANT

 

AND

 

 

PERSONAL CARE LIMITED

RESPONDENT

 


TRIBUNAL JUDGMENT


 

Reference:                    [2017] TRE201

 

Hearing Date:                21 May 2018    

 

 

Before:                                     Mrs H G Griffin, Chairman

                                    Mr J Noel

                                    Mrs L James

                                   

 

Appearance:

For the Claimant:           In person

For the Respondent:     Mrs A Etienne, Director

                                   

 

 

THE DECISION

 

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.

 

 

THE REASONS

 

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. 

 

The Claimant’s case as formulated in his Claim Form

 

2.       By a claim form presented on 17 November 2017, the Claimant brought the following complaints:

a)       unfair dismissal;

b)      wrongful dismissal/failure to pay notice pay;

c)       direct discrimination on the grounds of the protected characteristic of race; and

d)      harassment related to the protected characteristic of race,

(together “Claims”).

 

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 February 2018.

 

The issues

 

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 follows:

Unfair dismissal

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?

Wrongful dismissal

c)       Was the Claimant entitled to receive notice to terminate his employment?

Direct discrimination

d)      Did the Respondent treat the Claimant less favourably than it treated or would treat others?

e)      If so, was such treatment because of race?

Harassment

f)         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?

 

Documents and evidence

 

Witness evidence

 

7.       In advance of the Hearing, the Tribunal received written witness statements on behalf of the Respondent from:

i)         Ms A Etienne (Managing Director);

j)         Ms L Sheldon (Manager);

k)       JP (employee);

l)         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.

 

Hearing File

 

10.   The Respondent provided an agreed file of documents to which each party referred during the course of the Hearing. 

 

Submissions

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.

 

 

Evidence

 

Unfair dismissal - Preliminary Issue

13.   The Tribunal had to determine whether the Respondent dismissed the Claimant or whether the Claimant resigned. 

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.

 

Background

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 time.

 

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 spillages;

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 bin;

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;

f)         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".

 

22.   The 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 night.

 

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 Ms Etienne.

 

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.

 

Direct race discrimination

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 black.

 

33.   The Claimant identified the following alleged acts as amounting to less favourable treatment:

a)       receiving written warnings when other members of staff did not receive such written warnings;

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 employers.

 

Written warnings

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 comparator. 

 

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

 

Training

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 her involvement.

 

Unfavourable references

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.

 

Harassment

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 of race. 

 

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.

 

49.   When 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 this manner.

 

Conclusion

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. 

 

 

 

Unfair dismissal – Preliminary Issue

54.   The 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 resignation.

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 November 2017.

 

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 rejected.

 

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 is rejected.

 

Harassment

65.   Having 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. 

 

66.   However, 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

 

 

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Page Last Updated: 05 Jul 2018