Unfair Dismissal Claim Allowed but Discrimination Claims Rejected by Employment Tribunal

OUTCOME: Allowed in Part

Claim Number: 3303067/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Norwich In Person

On: 26-30 January 2026

Before: Employment Judge R Wood; [NAME_6]; [NAME_8] For the Claimant: [redacted] For the Respondent: [redacted]

JUDGMENT

1. The claim of direct discrimination on the grounds of race is not well founded and is dismissed.

2. The claim of harassment related to race is not well founded and is dismissed.

3. The unfair dismissal claim is well founded and is allowed.

WRITTEN REASONS

Claims and Issues

1. Page numbering referred to in square brackets within these reasons are to pages in the main hearing bundle, unless otherwise stated.

2. [NAME_12] (“the claimant”) was employed by the [NAME_4] Hospital NHS Trust (“the Trust”) as a Healthcare Assistant (HCA) from 7 September 2020 until his dismissal on 12 February 2024. He presented claims for unfair dismissal, direct race discrimination, and harassment related to race. The pleaded issues were agreed and recorded in the List of Issues [33].

3. During 2022/23, the claimant was the subject of a number of complaints about his conduct on the ward. Finally, this resulted in an investigation and to him being disciplined under the respondent’s policy. The claimant asserts that he was discriminated against on the grounds of his race and/or harassed relating to his race, in the way the complaints, and the disciplinary process were conducted. As a result of the complaints, the claimant was moved from night to day shifts. He says that this

Claim Number: 3303067/2024

too was an act of discrimination/harassment, as was the Trust’s refusal to grant his application for flexible working when the claimant applied to be moved back to night shifts. The Trust denies that these matters had anything to do with the claimant’s race, and that there were other reasons for the decisions, which were linked to dealing with the complaints about the claimant.

4. The claimant also alleges that he was unfairly dismissed. The claimant was the subject of a Local `Authority Designated Officer (LADO) referral by Cambridgeshire County Council in relation to complaints of domestic violence against his ex-partner and son. [NAME_13] found the allegations to be ‘substantiated’ and that the claimant posed a risk to children and young adults i.e. those under the age of 18. The Trust came to the conclusion that the claimant could no longer carry out his duties as a HCA and dismissed him. The trust asserts that this amounts to some other substantial reason for dismissal.

5. The claim was lodged with the Employment Tribunal on 14 March 2024 [9]

The Hearing

6. The final hearing of this claim was heard by the Tribunal sitting at Norwich (in person) from 26 to 30 January 2026. We heard from a number of witnesses. We first of all listen to testimony from the claimant. From the Trust, we heard from [NAME_85] ([NAME_17], Medicine Division); [NAME_18] (Ward Manager, [NAME_21], until January 2023); [NAME_22] (Divisional [NAME_36] Business Partner); and [NAME_86] (Deputy Chief Nurse). All of the aforesaid witnesses submitted witnesses statements which they adopted and are contained in the witness statement bundle (“WS”).

7. In terms of the documentary evidence, we were provided with a main hearing bundle which comprises of 654 pages; and a supplementary bundle which comprises 264 pages (“SB”). The supplementary bundle contained documents which had been provided by the claimant bit about which there had bene a dispute as to the relevance between the parties. We found both bundles to be helpful when coming to our decision. We also heard helpful submissions from the claimant and [NAME_27]. We also had a skeleton argument dated 19 January 2026, and written closing submissions from the claimant dated 28 January 2026, and written closing submissions from [NAME_27].

8. At the outset there had been an issue concerning a letter upon which the claimant wished to rely. This was from his GP dated 6 June 2024. We allowed the claimant to adduce this letter in evidence and it appears at [452].

9. At the conclusion of the hearing, the Tribunal handed down a decision in respect of liability alone, along with full oral reasons. Due to lack of time, the Tribunal was unable to proceed to deal with remedy. This has been adjourned to a future date.

10. On 25 March 2026, the claimant requested a written reasons for out decision. We have endeavoured to set out below the rationale behind our judgment below.

Claim Number: 3303067/2024

Findings of Fact

11. Based on the evidence that we heard and read, the Employment Tribunal made the following primary findings of fact relevant to the issues that we had to determine.

12. As stated above, the Claimant was employed by the Trust as a Healthcare Assistant (“HCA”) on [NAME_21] (“the ward”) of the [NAME_4] Hospital (“the hospital”) from 7 September 2020 until dismissal on 12 February 2024. According to the Trust’s case, this was in part the result of a number of incidents that preceded the dismissal. We deal with these events first of all.

Incidents 1-3

13. In early September 2022, two complaints were made concerning the claimant’s manner and quality of care during night shifts in relation to two patients. The first incident was said to involve threatening/irritable behaviour, and telling a patient to “shut up” (“Incident 1”). This complaint was pursued by the patient’s son, [NAME_87], who happened to be a medical consultant at another hospital. The second incident was alleged to involve the claimant placing his face close to a patient and telling the patient to “shut up,” causing distress (“Incident 2”). The patient’s handwritten note for Incident 2 appears at [294–295].

14. The claimant provided handwritten accounts of incidents 1 and 2, found at [222–227] in which he denied that he had been at fault or had behaved in the way alleged. We find that these incidents happened broadly in the way suggested by the complainants. In general terms, we did not find the claimant to be a credible witness. It was our impression that he struggled to focus on key issues, and that he was often unable to answer straightforward questions and, at times, presented as evasive and defensive. We found his testimony and the way in which he put his case more broadly, to be inconsistent and confusing. In summary, we placed limited weight on his evidence, and where there was a conflict between the claimant’s and Trust’s evidence, we tended to prefer the latter.

15. We note that in relation to incidents 1 and 2 they happened on consecutive night shifts; that they occurred on the same ward but were complaints in respect of different patients, apparently made independently of each other. In our view this strengthens the likelihood that they occurred as alleged. We also note that the claimant admitted that the patient concerned with incident 1 had been so upset to realise that the claimant was back on shift on the following night that the patient had to be moved to another ward. These are all matters which make it likely that these incidents occurred as alleged.

16. We also find that the claimant did have a conversation with [NAME_30] as set out in the latter’s witness statement at paragraph 7, namely that when asked, the claimant stated that the reasons for his conduct giving rise to the complaints had been problems with child care, and that he found it difficult to concentrate when he had been required to do back to back night shifts. This has a ring of truth to it, not least because the claimant was moved onto day shifts within a few months, and because the claimant was to make an application for flexible working based on childcare issues. We found [NAME_30] to be a calm and thoughtful witness, who appeared to give cogent and consistent testimony when challenged.

Claim Number: 3303067/2024

17. There was a great deal of questioning of [NAME_30] as to whether he had spoken to patient 1. The claimant queried whether this was possible as the patient had been transferred to another ward. We accept [NAME_30]’s explanation that he had spoken to both the patient and the son ([NAME_31]) during the day, before the patient was moved to another ward on the following evening. We were satisfied that [NAME_30] took appropriate steps to investigate the complaints in conjunction with his colleagues.

18. On 9 September 2022, an informal meeting under the Disciplinary Policy was held with the Claimant; the note is at [297–298]. It was agreed he would work day shifts temporarily and attend the “Caring with Kindness” course so that supervision and support could be provided with the benefit of daytime staffing. This was clearly a reaction to the claimant attributing causation of the incidents to the fact he was struggling on night shifts. We accept that support could be provided more readily during the day when there were more staff on the ward. We reject the claimant’s surprising submission that there were the same number of staff on duty on the ward during night shifts as compared to the day shifts.

19. In October 2022, a further complaint alleged that the claimant told a patient he was too busy and switched off the call bell (“Incident 3”), which was discussed at an informal meeting with [NAME_32] on 25 October 2022. The note of this meeting appears at [228]. We find that the trust remained of the view that the claimant should attend the “Caring with Kindness” course; continue to work day shifts; and go to fortnightly catch up sessions with managers. In respect of the document at [228], the claimant alleges that it was filled out fraudulently. He asserts that the box titled “Review Date” was filled out after he had signed it as a true record of the meeting. We accept [NAME_35]’s explanation for this, namely that she had filled out the final box, and had done so before the form was signed. In any event, we find that there is insufficient evidence of anything sinister about this document. We are satisfied that what is there properly reflects what happened in terms of remedial action relating to the claimant.

20. We find that the Trust’s response to the three complaints in 2022 was appropriate and measured. These were serious complaints about the standard of care provided by the claimant. In opting to deal with the matters in an informal setting, the Trust approach could be described as low key. It was our view that many other employers would have found it necessary to initiate a formal disciplinary process. Curiously, this seemed to be a viewed shared by the claimant, who at times criticised the Trust’s witnesses for not suspending him, and for not opting for more formal action against him in relation to the complaints. It was difficult to see how this helped his case, or that it betrays some motivation to treat the claimant less favourably on the grounds of his race.

Flexible Working Application

21. In November 2022, the claimant sought a change to his shift patterns. As stated above, he had been moved from night shifts to working days shits as a result of the incidents in September and October. The claimant told us that this arrangement quickly became problematic in terms of childcare arrangements. Consequently, the claimant submitted a flexible working request on 21 November 2022. [NAME_30] was asked a number of questions about this in cross-examination. It was our view that his responses were well reasoned and credible, and were generally consistent with other

Claim Number: 3303067/2024

evidence in the case. [NAME_30] explained that, notwithstanding the fact that the claimant had not made the application on the prescribed form, he had agreed to consider the application. He had met with the claimant at some point and it had been explained to [NAME_30] that the claimant desired a return to days. [NAME_30] explained that he was a relatively inexperienced manager and was concerned that the request seemed to run contrary to the recent changes made to the claimant’s shifts patterns. He explained that he wished to involve [NAME_36] ([NAME_36]).

22. We accept that during the course of trying to do this, [NAME_30] left the Trust in January 2023. He had tried to hand over to someone else but he accepted this had not happened. [NAME_30] agreed that the request had not been dealt with. He agreed that it had ‘slipped though the gaps’ without a positive decision being made. We find that this was made more likely by the claimant’s failure to fill out the prescribed form. There was also little, if any, evidence that the claimant had continued to pursue the matter at the time, albeit this may have been explained by the fact that he commenced long term ill health absence in February 2023.

23. It was further alleged that during the process of making his request for flexible working, [NAME_30] had asked the claimant whether his wife worked at the Trust. The claimant states that this amounted to less favourable treatment on the grounds of race. When asked (on a number of occasions) why he thought such a question was indicative of race discrimination, he simply stated that a white member of staff making an application would not have been asked that question. His general point appeared to be that everyone else tended to have their flexible working requests granted.

24. For his part, [NAME_30] could not recall making the remark although he stopped short of a flat denial. It was our view that such a question would have been viewed as innocuous. There is no evidence that the claimant complained to [NAME_30] about it at the time, although in fairness he did raise it with a ‘[NAME_37]’ on 16 November 2022 [249]. It struck us that it may have been said by [NAME_30]. He told us that his wife worked at the Trust. Further, that the two other flexible working requests he had dealt with had involved staff whose partners had also worked at the Trust. So we could see why, in an attempt to understand the context of the request (especially in the absence of a application form) that [NAME_30] may have asked about his family’s circumstances. In our judgment, such an enquiry is reasonable, if not inevitable. We do not agree that the question revealed some discriminatory motivation on the part of [NAME_30].

Further Complaints

25. In January 2023, more concerns were recorded about the claimant. There was a further incident during which the Claimant was said to have shouted at a patient who had soiled the bed (“Incident 4”). The patient was left in this state for a significant period of time. Following this, and on a separate occasion, it was alleged that the claimant had been rude while assisting a patient (“Incident 5”).

26. On 9 February 2023, [NAME_36] issued an invitation to the claimant to meet regarding all the complaints; that letter is at [400]. A meeting was held on 23 February 2023 with [NAME_36] and the Claimant’s union representative, leading to the decision to proceed with a formal disciplinary investigation. The email confirming the decision to proceed to a formal process is at [259]. It was noted that the claimant could work in the education

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or ‘GROW’ team i.e. a non-patient facing role, during the investigation. However, he began a prolonged period of sickness before he could start this alternative role.

27. [NAME_38] was appointed Investigating Officer. [NAME_40] carried out an investigation which is evidenced in his report dated 12 June 2023 [267-296]. It is apparent that [NAME_40] collated a significant amount of material and interviewed a number of people in the course of his investigation. At [271] he concluded that there was a case to answer on the grounds that any action which threatened the health or safety of a patient was deemed to be potential gross misconduct within the disciplinary policy. Indeed, it was his view that the policy should have been invoked after the second incident. Subsequently, a disciplinary hearing was convened. The hearing eventually took place on 19 September 2023. The disciplinary outcome was a second stage written warning. The outcome letter is at [305–310]. It is thorough and well-reasoned. The claimant initially lodged an appeal but subsequently withdrew it. The claimant said he had done this on the advice of his trade union representative. We accept this evidence.

28. It is part of the claimant’s case that both [NAME_30] and [NAME_35] both submitted statements to the investigation which were false i.e. not true. These statements appear at [288] and [291] respectively. In relation to [NAME_30], it is alleged that his statement is false because he suggested in it that he spoke to the patients for both incident 1 and 2. [NAME_30] was extensively cross-examined about this by the claimant. However, [NAME_30] was consistent in explaining that he had met both patients, and in the case of the first incident, had met the patient’s son, namely [NAME_31]. Save for the matters already set out above, the claimant failed to provide any support for the proposition that [NAME_30] was lying. We find that [NAME_30] did, as he suggested, speak to both patients. As the claimant’s line manager, it would have been surprising had it not been the case, given the imperative of investigating such complaints in a timely fashion.

29. [NAME_30] was also criticised that his statement had not been signed or dated. He explained that the statement had been sent attached to an email, although we did not have the email in the bundle. Of course, this does not prevent the statement itself being signed or dated. It would have been better if it had been. However, in our view there was insufficient evidence that this omission was indicative of any sinister or unlawful motivation.

30. In relation to [NAME_35]’s statement, the claimant’s case was far more opaque. Neither the claimant’s witness statement, the pleadings, or the list of issues, properly explains why he was suggesting that [NAME_35]’s statement was false. It too was not signed or dated, but our previous observations on this point apply equally here.. At the conclusion of his cross-examination of [NAME_35], I identified that he had not asked questions about this part of the list of issues (paragraph 4.2.4), it being in the list of less favourable treatment on the grounds of race. I had already explained it the claimant on more than one occasion that if some part of the witness statement was not challenged in cross-examination, then it was likely that the Tribunal would find it was not contentious. He did not take up my invitation to put this part of his case to the witness and appeared to state that this criticism only applied to [NAME_30]’s statement.

Accordingly, we reject this part of the claimant’s case.

31. On 24 November 2023, the Trust’s safeguarding team was informed that the claimant had been referred to the Local Authority Designated Officer (“LADO”) by

Claim Number: 3303067/2024

Cambridgeshire County Council. In addition, we were told that the referral had come via MARAC (Multi-agency Risk Assessment Conference) and an IDVA (Independent Domestic Violence Advisors). MARAC is a meeting where information is shared on the highest risk domestic abuse cases. They are attended by representatives from the police, health, child protection, housing, IDVA’s, probation and other specialists from the statutory or voluntary sectors. We accept the evidence from [NAME_41] (the Trust’s safeguarding lead) that the fact that this referral had come from MARAC was in itself a reflection that the police took the view that the risk posed by the claimant was high.

32. On 1 December 2023, the Trust notified the claimant that this process had begun and gave him a leaflet explaining the function of [NAME_13]. [NAME_13] is a local authority officer who is responsible for managing allegations against adults who work with children. [NAME_13] panel in this matter was, in part, made up of two representatives of the Trust, namely [NAME_43] ([NAME_36]) and [NAME_46] (safeguarding lead at the time-she was replaced by [NAME_49] in September 2024). [NAME_13] appears at [322]. In short, we accept that the police had two categories of concern about the claimant. Firstly, that he had assaulted his son on a specified occasion in January 2023. Secondly, that there was a long history of police concerns about acts of domestic abuse by the claimant against his ex-partner.

33. We find that these concerns were not unfounded. In relation to the first allegation, the claimant admitted that he struck his son in the context of a heated discussion when he felt his son was being disrespectful towards him. There was no injury but the ‘slap’ left a red mark. The claimant was arrested and interviewed. He was not prosecuted but the claimant was required to attend a parenting course which he funded himself. In relation to the second allegation, one of domestic abuse, we had the benefit of a number of documents provided to us by the claimant in the supplemental bundle [SB]. There had been a number of occasions where concerns had been raised since 2014. The allegations involved assault and controlling behaviour [SB23]. Again, we acknowledge that the claimant had not been prosecuted, although the information suggests that he admitted some of the conduct at the time.

34. We think it important to note that the claimant demonstrated little insight or contrition for any of these matters. At one point he put to a witness that he did not have a history of domestic abuse, notwithstanding the documents he had provided to us. He repeatedly told us that hitting his son was not a cause for concern. His stated view was that anything that happened at home was irrelevant to his workplace. He disputed the jurisdiction of [NAME_13] to be involved in this matter. In short, he could see no implication for his employment arising out of police concerns, and did not acknowledge that there was any risk to children or young adults. We found his lack of insight into this matter to be worrying.

35. The first LADO meeting took place on 6 December 2023; a further (final) meeting took place on 24 January 2024. The final LADO meeting record appears at [343– 353]. On 19 January 2024, pending [NAME_13] outcome, the Trust completed an employer safeguarding risk assessment concluding that there was a high risk if the claimant was present on site, permitting potential contact with children (including 16– 18‑year‑olds on adult wards). The risk assessment (carried out by [NAME_51]) appears at [335–342]. We are satisfied that for the purposes of safeguarding, a child was someone who was under 18 years of age. In terms of the way the trust organised the hospital, adults were defined as those 16 or over. This meant that there could be

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16 or 17 year olds on most adult wards. In addition, we also accept that it was impossible to exclude the possibility that in carrying out his duties as a HCA the claimant might encounter under 18 staff and/or visitors to the hospital.

36. However, it is clear to us that the review carried out on 19 January was intended to be reviewed on 25 January or as soon after [NAME_13] outcome as was possible. The first assessment did not have the benefit of any input from the claimant. It’s findings were provisional, not least because the claimant was on leave at the time, and was not expected to return to work until [NAME_13] decision was made.

37. On 24 January 2024 [NAME_13] process concluded with findings recorded as “substantiated” in relation to both categories of concerns. This finding indicated unsuitability to work with children.

Dismissal

38. The Claimant was invited by letter dated 1 February 2024 to a meeting to discuss [NAME_13] outcome. The letter appears at [358–359]. We find that at this stage, the claimant was aware of [NAME_13] process but not of its outcome. Further, and importantly we think, the letter did not tell the claimant that the outcome was adverse from his perspective, or that the Trust was considering dismissing him at the upcoming meeting. Although he was invited to have a representative at the meeting, in the absence of knowing the purpose of the meeting, the imperative to engage such assistance would not have been as apparent.

39. On 12 February 2024 a meeting took place, attended by [NAME_52] and [NAME_36] ([NAME_23]). We heard a lot of evidence about the nature of this meeting. We were told that [NAME_35] had been requested to fill in for [NAME_51] as chair, who had unexpectedly been unable to attend for personal reasons. [NAME_35] was recruited on 12 February, the day of the hearing. [NAME_35] explained that the decision to dismiss the claimant had been taken prior to the meeting with the claimant. [NAME_53] told us that the Trust took the view that it had had “no choice” but to dismiss the claimant in the light of the findings of [NAME_13]. [NAME_35] fairly conceded that this was what she had been advised in advance of the meeting. She was instructed that she was to dismiss the claimant, albeit that she made clear that she agreed with the decision, and would not have dismissed if she had taken a different view. The [NAME_36] note of the meeting appears at [401]. We do not regard it as an adequate minute of such an important meeting. There is no note at all of any of the previous discussions during which the trust actually decided to dismiss the claimant.

40. The claimant was informed that, in light of the substantiated LADO outcome and the employer’s risk assessment, he could not continue in his HCA role because the Trust could not guarantee that he would have no contact with children on Trust premises. The letter recording dismissal and the absence of an internal appeal (as the decision was deemed by the Trust not to arise from disciplinary/capability procedures) is at [358–359].

Post-[NAME_54]

41. Following dismissal, the Trust referred the claimant to the [NAME_93] (“[NAME_54]”). [NAME_54] correspondence in the supplemental bundle includes:

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“Important Information” to the claimant dated 23 March 2024 at [SB190–192]; a [NAME_54] request to the Trust dated 15 October 2024 at [SB198–202]; and the [NAME_54] “No Action Letter” dated 18 November 2024 confirming that the Claimant was not included on the Children’s or Adults ’barred lists at [SB203–205]. In short, the [NAME_54] found that there was insufficient evidence to justify placing the claimant in the barred list in respect of regulated activities. Of course, this was several months after the claimant was dismissed by the trust. The claimant asserts that this is inconsistent with the Trust’s decision to dismiss him.

42. There was some issue as to whether the Trust had responded to the [NAME_54] request for information. The claimant was adamant that the Trust had not, and cross-examined more than one witness to this effect. After submissions, we were provided with a copy of an email which seemed to suggest that the Trust had responded. We think it more likely than not that the trust did respond. We have not been shown what material was provided to the [NAME_54]. We do not think it important to resolve this issue any further.

43. The claimant entered into early conciliation through ACAS on 8 March 2024. The EC certificate was issued on 13 March 2024. The claimant issued his claim in the Employment Tribunal on 14 March 2024. On the face of it, any matters complained of which occurred prior to December 2023 are outside of the primary limitation period for bringing claims in the Employment Tribunal. There is a question as to whether some of these claims were brought by the claimant out of time. We will return to this later.

Decisions and Reasons

44. Based on our findings of fact, the Tribunal has come to the following decisions.

Discrimination

45. Notwithstanding that the Tribunal’s jurisdiction is an issue in respect of this aspect of the claim, we have decided that it is fair and appropriate to make a decision on the substantive merits of the discrimination claim. This substantive decision is, of course, subject to our decision on the question of time limits, to which we will return shortly.

46. The relevant legislation in respect of the allegations of direct discrimination is contained in the Equality Act 2010 (“the Act”). Race is a protected characteristic as defined by section 4 of the Act. Sections 39 and 40 prohibit unlawful discrimination against employees in the field of work. Section 39(2) provides that:

“An employer (A) must not discriminate against an employee of A's (B) -

(a) as to B's terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(c) by dismissing B; or

(d) by subjecting B to any other detriment.”

Claim Number: 3303067/2024

47. Race includes a person’s colour; nationality; ethnic or national origins: section 9(1) of the Act.

48. In terms of the appropriate comparator(s) to be adopted for the purposes of section 13 of the Act, there must be no material difference between the circumstances of the comparator and the claimant (section 23(1)). “All the characteristics of the complainant which are relevant to the way his case was dealt with must also be found in the comparator’; per Lord Hope in Macdonald v MoD [2003] ICR 937, HL. It is not an error of law for the Tribunal not to identify a comparator of any kind, so long as it addressed the core question of ‘why’ the complainant was treated in the manner complained of’ (Igen Ltd v Wong [2005] EWCA Civ 142, CA, at para 34).

49. Section 136 of the Act provides that:

“If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred”.

This provision reverses the burden of proof if there is a prima facie case of direct discrimination.

50. In addition to the statutory provisions, Employment Tribunals are obliged to take in to account the provisions of the statutory Code of Practice on the Equality Act 2010 produced by the Commission for Equality and Human Rights.

51. Direct discrimination is defined in section 13(1) of the Act as “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. The application of the principles can be distilled from cases decided by the Employment Appeal Tribunal such as Madarassy v Nomura International plc [2007] ICR 867; Igen v Wong [2005] 3 All ER 812; and London Borough of [NAME_55] v [NAME_56] (Liberty intervening) EAT/0453/08. Those principles are as follows:

(a) In every case the Employment Tribunal has to determine the reason why the claimant was treated as he was. In most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.

(b) If the Employment Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial.

(c) Direct evidence of discrimination is rare and Employment Tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test. The first stage places a burden on the claimant to establish a prima facie case of discrimination. That requires the claimant to prove facts from which inferences could be drawn that the employer has treated them less favourably on the prohibited ground. If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the

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balance of probabilities that the treatment was not on the prohibited ground. If they fail to establish that, the Tribunal must find that there is discrimination.

(d) The explanation for the less favourable treatment does not have to be a reasonable one. In the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation. If the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. The inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non- discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, the burden is discharged at the second stage, however unreasonable the treatment.

(e) It is not necessary in every case for an Employment Tribunal to go through the two-stage process. In some cases it may be appropriate simply to focus on the reason given by the employer (“the reason why”) and, if the Tribunal is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test.

(f) It is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The determination of the comparator depends upon the reason for the difference in treatment. The question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he/she was. However, as the EAT noted (in [NAME_56]) although comparators may be of evidential value in determining the reason why the claimant was treated as he or she was, frequently they cast no useful light on that question at all. In some instances, comparators can be misleading because there will be unlawful discrimination where the prohibited ground contributes to an act or decision even though it is not the sole or principal reason for it. If the Employment Tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then it is unnecessary to determine the characteristics of the statutory comparator.

52. The crucial question in every case will be the reason why the complainant was treated as he/she was. If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that will be sufficient – it need not be the only reason, provided it is significant, in the sense of being more than trivial.In this case, we found that the claimant has failed to establish even a prima-facie case of discrimination. We address each of the allegations of less favourable treatment in turn

Denied Flexible Working/day shifts

Claim Number: 3303067/2024

53. Firstly, we do not accept that the claimant’s application was denied, although in practical terms it might have appeared as thought it had been from the claimant’s perspective. We accept that his application was never determined. As set out above, we accept [NAME_30]’s explanation for this administrative failure, which was [NAME_30] leaving the trust, his relative inexperience as a manager, and the fact that the claimant never had made a request on the proper form.

54. The underlying difficulty with the request should have been apparent to the claimant, namely that it ran contrary to the temporary imposition of day shifts arising from the first three incidents. We are satisfied that this change was imposed for legitimate management reasons, i.e. training, supervision, and patient safety. This was the reason given consistently by the Trust’s witnesses, and is supported by the contemporaneous documentation. We find that the way the Trust dealt with the claimant’s request was not the result of discriminatory motivation. We saw no evidence of this amongst the Trust’s witnesses, whether conscious or otherwise.

55. The claimant asserted on several occasions that others were habitually granted any requests for flexible working. The implication was that had he been white, that his request would have been processed and allowed. However, there was little, if any, evidence of an appropriate comparator in this regard. There was no evidence (save for that given by [NAME_30]) as to how other requests were dealt with. The examples provided by [NAME_30] were of members of staff seeking flexible working in order to accommodate partners who also worked within the Trust. If the claimant sought to rely upon these examples as comparators, then we took the view that they were requests made in materially different circumstances.

56. There was insufficient evidence that a non-black HCA would have been treated more favourably had he/she made a flexible working request; or that the same comparator who found him/herself in the same situation as the claimant after the first three incidents would have been treated differently in terms of a move to day shifts. In our judgement, this was one of these cases where ‘something more’ was required to establish a prima facie case on discrimination (Madarassy).

57. In a general sense, we find that the claimant’s workplace was relatively diverse from a cultural perspective. The claimant told us that he was the only black person who worked on his ward. We were told by [NAME_30] that there were up to 4-5 black permanent members of staff working on [NAME_21] ward in or around December/January 2023, as well as others engaged through agencies or from the nursing bank. When the claimant was challenged about this, we found his answers to be vague and evasive. In short, we find that the claimant was not the only black member of staff on the ward at the relevant time.

[NAME_30]’s question about the claimant’s wife

58. As stated above, whilst we accept that this comment may have been made, we do not find that it demonstrated any discriminatory motivation on [NAME_30]’s part. If the comment was made, it was in the context of a discussion about the claimant’s flexible working request, when questions about the claimant’s personal circumstances would be entirely appropriate. We suspect that [NAME_30] had in mind the other occasions when requests had been made to him involving couples who were both working for the Trust. We could find insufficient evidence in terms of the question, or its context,

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which suggested that this constituted less favourable treatment based on race. We find that this part of the claim is not well founded.

Allegations of False Statements

59. The part of this allegation relating to [NAME_35] was vague and lacking in detail. We also took the view that the claimant did not pursue this part of the claim in cross- examination of [NAME_35], even when reminded to do so by myself at the conclusion of his questions. It was our view that this was typical of the way in which the claimant had presented his discrimination claim as a whole, in that it lacked cohesion.

60. We were satisfied that [NAME_30] had spoken to the patients as he suggested, and that in this sense, or any other, his statement was not false. It was our judgment that the statements that both [NAME_30] and [NAME_35] had written had been created out of a genuine desire to assist with the disciplinary investigation. The incidents gave rise to concerning issues relating to patient care and safety. No doubt they were subject to a professional obligation to cooperate with [NAME_40]’s investigation, and both had been requested to attend interviews by him. Further, it was our impression that the statements were not only consistent with their testimony at the hearing, but also with the other documentary evidence in the case.

Accordingly, we find that this aspect of the claim is not well founded.

Subjecting the claimant to a disciplinary process

61. We are wholly satisfied that the disciplinary process was genuine and motivated by the serious incidents that had occurred in 2022 and 2023. This is supported by the Trust’s witnesses who we found to be credible, and by a plethora of contemporaneous documentation. In various ways which were not always easy to follow, the claimant suggested that the complaints, and the subsequent investigation, were a fabrication. One of his main concerns appears to have been that there were no direct complaints from the patients themselves. However, for the reasons we have set out in our findings of fact, we are satisfied that the incidents as described were genuine and not fabricated by the respondent. What the claimant has failed to do in or view is to provide any cogent reason why any of the respondent’s managers would have manufactured these matters against him. The claimant had been previously well regarded by other staff, and had received a positive appraisal.

62. If there had been some sort of sinister agenda on the part of the Trust and its managers, we are in no doubt that it could have justified dismissing the claimant in 2022. The first three incidents in themselves were serious, especially when taken together. In our judgment, the decision to deal with the claimant in the way that it did, by way of an informal process, was generous. It demonstrated an attitude on the part of the Trust’s managers which is far removed from the motivations attributed to them by the claimant. In summary, we find that the disciplinary process was not an act of race discrimination.

63. We also note that the claimant confirmed in questions to [NAME_57] that he did not allege that she had discriminated against him. This was notwithstanding that I explained the significance of this approach to his case. [NAME_57] had been the disciplinary hearing chair. It is difficult to understand how, if it be his case, that the

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disciplinary process could have been an act of less favourable treatment based on the claimant’s race, if [NAME_57] was not in some way party to that motivation.

64. As the hearing went on, the claimant made increasing references to the Nursing and Midwifery Council Code (“the code”); the ‘Working to Safeguard Children’ guidance (2023)(“the guidance”); and the Safeguarding Vulnerable Groups Act 2006 (“the Act”). None of these had been previously mentioned, either within the pleadings, or in the list of issues. It was not clear in what way they formed part of the claimant’s case not least because had was unable to make specific reference to the Code, guidance or the Act. He had not adduced copies of the Code or the guidance. We noted that the guidance was in the region of 176 pages long. The claimant was informed on a number of occasions that if he wishes to rely upon new material, that he would need to leave to adduce it and have it added to the bundle. He was also told that this might give rise to the need for an application to amend his claim.

65. In the end, the claimant produced a document entitled “draft application/written submissions to the Employment Tribunal” dated 28 January 2026. It was provided to the Tribunal on 29 January 2026 when we heard submissions. It addressed only the question of the relevant of the code. However, again the claimant failed to identify the specific provisions upon which he sought to rely. There was no application other than amend his claim.

66. Doing the best we could, we understood the claimant to be suggesting that the way in which the patient incidents had bene dealt with in terms of the investigation of the episodes in particular, was in breach of the code. By way of example, it was suggested that thee had bene shortcomings of record keeping and in the speed with which the Trust responded to the complaints. As we have stated above, there were some errors made during the investigation, such as with the failure on [NAME_30]’s and [NAME_58]’s part to sign and date their statements to the investigation. However, it was our view that they were not significant, and were not evidence of discriminatory attitudes.

67. Accordingly, we dismiss the claim of direct race discrimination.

Harassment related to Race

68. Three forms of behaviour are prohibited under section 26 of the Equality Act 2010, which is entitled ‘Harassment’:

• ‘general ’harassment, i.e. conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment — • sexual harassment — section 26(2), and • less favourable treatment following harassment — section 26(3).

69. The general definition of harassment set out in section 26(1) applies to all protected characteristics except marriage and civil partnership and pregnancy and maternity. It states that a person (A) harasses another (B) if:

• A engages in unwanted conduct related to a relevant protected characteristic — section 26(1)(a), and

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• the conduct has the purpose or effect of (i) violating B’s dignity; or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B — section 26(1)(b).

70. The EAT has held that the word ‘unwanted ’is essentially the same as ‘unwelcome ’ or ‘uninvited’. This is confirmed by the EHRC Employment Code (see para 7.8). The EAT in Thomas Sanderson Blinds Ltd v English EAT 0316/10 pointed out that unwanted conduct means conduct that is unwanted by the employee. The necessary implication is that whether conduct is ‘unwanted ’should largely be assessed subjectively, i.e. from the employee’s point of view.

71. The conduct does not have to be directed specifically at the complainant for it to be unwanted by the complainant. Indeed, the employee does not even have to be present when the words/actions occur. It is clear that a claimant does not have to share the protected characteristic in question for the conduct to be ‘unwanted ’by him or her. The EHRC Employment Code envisages that a white worker who is offended by a black colleague being subjected to racially abusive language can bring a racial harassment claim. If the claimant has made it clear, through words or conduct, that he or she personally has no objection to the conduct, that conduct will not be unwanted.

72. There are few cases examining precisely what is meant by violating a person’s dignity. In [NAME_59] v [NAME_61] 2009 ICR 724, EAT, Mr Justice Underhill, then President of the EAT, said: ‘Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended’.

73. In this case, the particulars of the harassment claim mirror the direct discrimination claim. For the reasons already given, we are satisfied that the alleged conduct did not occur as alleged and/or that any proven conduct was not related to race. Throughout the hearing, the claimant was entirely silent about this aspect of his claim. We therefore find that the harassment claim is not well founded, and is dismissed.

Jurisdiction: Time Limits

74. As the list of issues suggests, the Tribunal has jurisdiction to deal only with claims that are brought within the appropriate time limits. In the case of discrimination claims, that is period of three months plus the time taken with early conciliation, or such time as the Tribunal thinks is just and equitable (section 123(1) of the Equality Act 2010).

75. If it is said that there was a series of acts, then the claimant must establish that the acts complained or were linked. One relevant but not conclusive factor, is whether the same or different individuals are responsible for the acts in question. For the purposes of determining when time started to run, an act done over a period of time, or a series of linked acts, are treated as having been done at the end of that period.

76. In deciding whether to extend time, the Tribunal should consider such factors as the prejudice that each party would suffer as part of the decision reached and the length of, and the reasons for the delay.

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77. In this case, the last act of discrimination alleged by the claimant was subjecting him to a disciplinary process and/or the false statements by [NAME_30] and [NAME_88]. These are said to have taken place, in broad terms, in the spring of 2023. The claim was not lodged until March 2024. By our assessment, the discrimination claims was in the region of 6 months out of time. This was not disputed by the claimant.

78. The claimant therefore needs leave to pursue his claim out of time. As stated, the Tribunal has a discretion to extend time where it is ‘just and equitable' to do so. Of course, by reason of our findings and decision on the substantive merits, we have made clear that there was limited merit to the discrimination claim. There is therefore little prejudice to the claimant by not being able to pursue such a case. Further, the claimant has presented no explanation for his failure to bring a claim within the time limits prescribed by statute. Neither has he made an application to extend time, although on this issue we have regard to the fact that he is a litigant in person who is unfamiliar with procedure to some extent.

79. However, his failure to bring his discrimination claim in time is in stark contrast to the speed with which he brought his claim for unfair dismissal. We observe that the claimant had access to union advice throughout these matters, and indeed took advice from time to time. We think it likely that he had advice about Employment Tribunals and the relevant time limits for bringing claims. If not, then such advice or information was readily available to him. We have not been told of any reason why he could not have researched such matters on the Internet, or sought advice from his union or other professional advisors, if he had thought it appropriate to do so in 2023. He strikes us as an intelligent and motivated individual. He has been able to engage in the Tribunal process to a high standard, making written legal submissions on more than one occasion. The list of issues made clear that jurisdiction was in dispute. In the absence of any clear reason why it would be just and equitable to extend time, we decline to do so. We also note that the delay was significant in this case, and not just a few days or weeks.

80. We therefore dismiss the claim on the grounds of jurisdiction.

Unfair Dismissal

81. The relevant case law in relation to unfair dismissal is to be found in the Employment Rights Act (“ERA”) 1998 at section 98:

“(1) In determining for the purpose of this part whether the dismissal of an employee is fair or unfair it is for the employer to show–

(a) the reason (or if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it-

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(a) relates to the capability of qualifications of the employee for performing work of the kind which he was employed to do,

(b) relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.”

(3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability as- sessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held. (4) [ Where ] 2 the employer has fulfilled the requirements of sub- section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the [NAME_89])— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the [NAME_89] acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substan- tial merits of the case.”

82. Section 98 of the Employment Rights Act 1996 (ERA) indicates how a tribunal should approach the question of whether a dismissal is fair. There are normally two stages: first, the employer must show the reason for the dismissal and that it is one of the potentially fair reasons set out in S.98(1) and (2), and if the employer is successful at the first stage, the tribunal must then determine whether the dismissal was fair or unfair under S.98(4). This requires the tribunal to consider whether the employer acted reasonably in dismissing the employee for the reason given.

83. The reason for dismissal is the set of facts known to the employer or beliefs held by it which cause it to dismiss the employee ([NAME_63] v [NAME_64], Hay and Anderson [1974] ICR 323), or, in other words, the factor or factors operating on the mind of the deci- sion-maker which cause them to make the decision to dismiss, or alternatively what motivates them to do so (Jhuti v Royal Mail Ltd [2018] IRC 982).

84. In determining the reason for a dismissal, the tribunal may only take account of those facts (or beliefs) that were known to the employer at the time of the dismissal. This means that no account will be taken of matters coming to light or occurring after the dismissal has taken place — [COMPANY_65] v [NAME_68] 1977 ICR 662, HL. Thus, if an employee is dismissed on the employer’s whim for no reason at all, the dismissal will not be made retrospectively fair if the employer later finds that the employee had been engaged in longstanding and large-scale embezzlement from the company that

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would have amply justified the dismissal if it had been discovered earlier. Such mat- ters will, however, be very relevant in assessing compensation.

85. An SOSR reason for the dismissal is one that ‘could be a substantial other reason’ [COMPANY_69] t/a [NAME_70] v silver wood and ors [2006] ICR 1552, CA. As long as it is not a section 94(2) reason, any reason for dismissal, however obscure, can be pleaded on grounds of SOSR — with the proviso that it must be a substantial reason and thus not frivolous or trivial; and must not be based on an inadmissible reason such as race or sex. However, while the reason for dis- missal needs to be substantial, it need not be sophisticated — merely genuine.

86. In addition to showing a fair reason for dismissal, in order to escape liability for unfair dismissal the employer must also have acted reasonably in all the circumstances, having regard to equity and the substantial merits of the case — S.98(4) ERA. In other words, the employer must have acted reasonably in treating the reason as a sufficient reason for dismissal and have acted fairly and in accordance with relevant procedures.

87. When determining reasonableness, the tribunal should not focus on whether it would have dismissed in the circumstances and substitute its view for that of the employer: [COMPANY_71] v [NAME_72] 1983 ICR 17, EAT. Rather, the test to be applied is whether the employer’s decision to dismiss fell within the range of reasonable re- sponses available to it.

88. The test of whether or not the employer acted reasonably is usually expressed as an objective one — i.e. tribunals must use their own collective wisdom as industrial juries to determine the way in which a reasonable employer in those circumstances, in that line of business, would have behaved. Nonetheless, there is also a subjective ele- ment involved, in that tribunals must also take account of the genuinely held beliefs of the employer at the time of the dismissal. However, what a tribunal must not do is put itself in the position of the employer and consider how it would have responded to the established reason for dismissal. Although members of the tribunal can substi- tute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer.

89. The [NAME_73]’ decision in Polkey v [COMPANY_74] 1988 ICR 142, HL, firmly establishes procedural fairness as an integral part of the reasonableness test under section 94(4). As stated by Lord Bridge in that case, where an employer fails to take the appropriate procedural steps, the one question a tribunal is not permitted to ask in applying the reasonableness test is whether it would have made any differ- ence if the right procedure had been followed. That question is simply irrelevant to the issue of reasonableness (although very relevant to the issue of compensation). Thus, if there is a failure to adopt a fair procedure at the time of the dismissal, whether set out in the Acas Code or otherwise (for example, in the employer’s disciplinary rules), the dismissal will not be rendered fair simply because the unfairness did not affect the end result. However, any compensation is likely to be substantially reduced.

90. We find that the reason for dismissal here was some other substantial reason or “SOSR” arising from the ‘substantiated' findings of [NAME_13] and the identified consequential risk to children and young adults in a clinical, public facing, HCA role. It is clear in this case that the Trust chose not to rely on conduct, but upon the safeguarding concerns of [NAME_13] which in its view had the effect of rendering it impossible for the Trust to employ him in the role of HCA. This is a potentially fair reason under the Employment Rights Act 1996.

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91. We find that it was fair and reasonable that the Trust came to the view that [NAME_13] findings were significant and material to the claimant’s employment. The same applies to the judgment arrived at by the Trust that [NAME_13] determination did validly identify an ongoing risk associated with the claimant continuing to perform his role, and thereby coming into contact with under 18 year olds at the hospital. This risk arose out of potential contact with under 18 patients, young members of staff, and young visitors to the hospital. We find that the Trust could only have continued to employ the claimant once a thorough risk assessment had been carried out, and ways of mitigating any risk had been identified and implemented. This was unlikely to be a straightforward process.

92. We find that it was within a reasonable band of decisions that an employer might take to place such importance on [NAME_13] determination. Safeguarding is of the utmost priority to an NHS Trust. In the light of the risks identified, it was entitled to consider dismissal as a possible resolution. The Trust appears to have ben fully informed of the nature and extent of the madeira relied upon by [NAME_13], as it had two of its employees in the panel. The mechanism of the referral from the police was indicative of a high risk in safeguarding terms. It was clearly a serious and urgent matter which needed to be addressed by the Trust. We also take into account that fact that the claimant had not been straightforward about these matters. He had not taken any of the opportunities presented to him to tell the Trust about his domestic situation. Instead, these matters had only come to light through [NAME_13] referral. This was hardly ideal.

93. However, we do have a number of concerns as to the way the Trust approached these issues in a procedural sense, and how it came to the decision to dismiss the claimant. In coming to our conclusions, we have had regard to the case of [NAME_75] v Office of Communications [2012] EWCA Civ 959, in which the Court of Appeal stated that an employer was entitled to rely upon information from a third party that an employee posed a risk to children. An employer is not expected to carry out its own investigation in order to test the reliability of the information. However, the employer would not be acting reasonably for the purposes of the Employment Rights act 1996 s.98(4) if it took an uncritical view of the information disclosed. In considering such a case, a Tribunal has to have regard to the nature of the employer; the employees role in it; the nature and source of the allegations; the efforts made by the employer to obtain clarification and confirmation; the employees responses; and what alternative courses of action were reasonably open to the employer.

94. Having received [NAME_13] determination, we are satisfied that the Trust considered that it had no choice but to dismiss the claimant. Put another way, it took the view that its hands were tied. As stated, it was reasonable to come to the view that these were pressing and serious matters given their context and the nature of the claimant’s role in the hospital. As we have found, the Trust was fully aware of the basis upon which [NAME_13] came to its conclusions, two members of staff having been privy to the process.

95. However, in our judgment, there was still a decision to be made and process to be undertaken. To treat the situation as a ‘done deal’, is the antithesis of the principles set out in s.98(4) of the ERA 1996 and an abrogation of the Trusts obligations as defined in [NAME_75]. It is clear even on the face of [NAME_13] documents that it was for

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the Trust to carry out its own procedure in relation to how its findings impacted specifically on the claimant’s role. We accept that in these types of situation, there is some possibility that the outcome will not be significantly altered by an employer going through such a process. Nonetheless, we are satisfied that fairness requires such steps to be taken. The failure to do so fell outside the band of reasonable responses that an employer might take.

96. In particular, the Trust could have engaged in its own assessment of the risks posed to children as highlighted by [NAME_13] determination, and to assess whether there were any mitigation measures which might have been put in place to enable the claimant to remain in post with the Trust. It was suggested to us that this would have required the questioning the claimant’s ex-partner and/or his son by the Trust. We do not agree. It could have been done on the basis of [NAME_13] findings. In our judgment, this exercise could only be fairly carried out by engaging in a genuine consultation with the claimant. It might be that nothing of substance would have come from such a discussion. However, that does not excuse a failure to conduct such an exercise. It seems to us that in principle this is analogous to a redundancy consultation in terms of what fairness requires. This too fell outside a band of reasonable responses.

97. We are satisfied that what the trust did in this case was not fair. As stated in our findings of fact, the claimant was not given any warning as to the purpose of the meeting on 12 February, or of the outcome of [NAME_13] process. He arrived at that meeting, wholly unaware that he was at risk of being dismissed on that occasion, and without representation, which he might otherwise have had if he had been aware of the precarious nature of his predicament. He was not given any opportunity to provide an explanation for the findings made by [NAME_13], or to make his own suggestions as to how any risk might be mitigated, if appropriate. This omission was, in our view, unreasonable.

98. As it was, the Trust’s decision to dismiss the claimant was made prior to the meeting. This was the consequence of the Trust’s attitude that it had “no choice”. Principles of fairness require that the employee be given the opportunity to properly understand the case against him, and to fully respond to it. Neither happened in this case. It seems to us that there is a fundamental inequity in the Trust having full access to [NAME_13] documentation, but the claimant being wholly excluded from that information.

99. It was suggested to us that there were confidentiality issues which prevented disclosure to the claimant. However, confidentiality had not prevented others in the Trust who had not been part of [NAME_13] process from having access to these documents. We do not understand why it was not possible for the Trust to explain to the claimant what the nature of the substantiated allegations against him were, and give him a chance to make representations. The claimant was aware of the identity of the victims in any event. Disclosure to the claimant could have been limited as appropriate. It was not necessary for him to be shown [NAME_13] documents themselves. Written summaries could have been prepared by the Trust. But to exclude him totally from the process was, in our view, unfair and outside of a band of reasonable decisions.

100. We also note that the claimant had been excluded from the risk assessment in January 2024. In our judgment, fairness required that there be a review of that risk assessment which allowed input from the claimant. He should have been permitted

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to make representations as to the transferable risk and also to make suggestions as to redeployment, for instance.

101. We do not accept that there was a proper review of the risk in the light of [NAME_13] decision, or any proper consideration of redeployment or other mitigations. There is no note of such discussions at the time, and such matters were not mentioned in any of the Trust’s witness statements. Neither are they addressed in the dismissal letter. There was some mention of such a process by the Trust’s witnesses in cross- examination. It was the only occasion that we thought that the [NAME_76] tailored their evidence to some extent in order to address the Tribunal’s obvious concerns. The Trust thought that it had no choice, therefore we think it unlikely that it would have engaged in a review of risk or of possible redeployment opportunities. The decision maker, [NAME_35] did not realistically have the time to do any of these things in the few hours she was involved before chairing the dismissal meeting.

102. Finally, we think that the claimant should have been offered an appeal. He may not had a right to an appeal, as the trust had not engaged its disciplinary or performance policy. However, that did not necessarily prevent it from granting an appeal. It retained a discretion to do so, and in the unusual circumstances of this case, it would have been fair to offer an appeal hearing. We take the view that it would have been an opportunity to have corrected some of the deficiencies in the initial process. As it was, it was an opportunity missed by reason of the Trust adopting too inflexible an approach to the situation. We are satisfied that any reasonable employer would have made an appeal process available to the claimant.

103. We remind ourselves that it is not for a Tribunal to substitute its own judgment of what is reasonable and fair for that of the employer’s. A dismissal will be deemed fair if it falls within a band of decisions that a reasonable employer may have taken in the circumstances. However, taking all of the relevant matters together, we find that the dismissal of the claimant was unfair.

104. We must then consider the principles set out in the case of Polkey v AE Dayton Service Ltd [1987] IRLR 50 (HL), relating to the situation in which there is a reduction in an award for future losses to reflect the chance that the individual would have been dismissed fairly in any event because a proper procedure would have been followed (section 123(1) of the Act). In any case where the employer has dismissed for a substantively fair reason but has failed to follow a fair procedure, the compensatory award (but not the basic award) may be reduced — potentially to nil — so long as it can be shown that a fair procedure would have resulted in a dismissal anyway.

105. In Williams v Amey Services Ltd EAT 0287/14 the EAT helpfully summarised the various methods by which it is open to a tribunal to make a Polkey reduction. Her Honour Judge Eady observed that: ‘In making such an assessment the [employment tribunal] is plainly given a very broad discretion. In some cases it might be just and equitable to restrict compensatory loss to a period of time, which the [tribunal] concludes would have been the period a fair process would have taken. In other cases, the [tribunal] might consider it appropriate to reduce compensation on a percentage basis, to reflect the chance that the outcome would have been the same had a fair process been followed. In yet other cases, the [tribunal] might consider it just and equitable to apply both approaches, finding that an award should be made for at least a particular period during which the fair process would have been followed and thereafter allowing for a percentage change that the outcome would have been

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the same. There is no one correct method of carrying out the task; it will always be case-and-fact-specific. Equally, however, it is not a “range of reasonable responses of the reasonable employer” test that is to be applied: the assessment is specific to the particular employer and the particular facts.’. In [NAME_77] v [COMPANY_79] 2026 EAT 12, the EAT stressed that a Polkey reduction must be assessed based on what the actual employer would or might have done, given the opportunity to remedy the procedural defect in question.

106. In our judgment, the claimant could well have been dismissed by the Trust if a fair procedure had been adopted. Notwithstanding our observations, we have some sympathy for the predicament of the Trust. The risk posed by the claimant returning to work was understandable perceived as being high, albeit difficult to quantify with any great precision. There was the seriousness of the first allegation relating to his son; the history of concerns relating to domestic violence against this wife; and the nature of his employment which was likely to bring the claimant into contact with children and other vulnerable young adults who might have mental health or behavioural issues.

107. We are satisfied that the Trust, if given the opportunity to remedy the procedural defect, is likely to have consulted with the claimant as we have suggested it ought to have done. However, we think it unlikely anything would have come from the discussions. The claimant did not make any attempt during the hearing to identify ways of mitigating the risk, or to point towards redeployment options. We think it likely that supervision for an adequate amount of time was not a viable way of mitigating the risk. As stated, we think it unlikely that there was a role which would have kept the claimant away from under 18’s, and in which the claimant would have been interested. We heard about a position in the education team. However, this role would still have brought the claimant into contact with under the age of 18.

108. In our judgment, the claimant’s approach to these matters was wholly unrealistic. He did not accept that [NAME_13] had any jurisdiction in relation to the said matters. He did not agree that [NAME_13] decision was based on any valid concerns about his conduct. Neither did he accept that those concerns were relevant considerations for his employer, given that they were said to have occurred in a domestic context. The claimant continued to demonstrate a worrying lack of insight into these matters, even at the hearing before us. This all reinforces our view of the evidence overall that it was unlikely that fair consultation would have resulted in a different outcome for the claimant.

109. In our judgment, the Trust could have carried out a fair consultation process within a period of 6 weeks. This would have given time for a review of the risk assessment; a hearing on notice with chance for the claimant to make representations; and for an appeal if necessary. Future loss is therefore limited to this extent, i.e. to six weeks of loss.

110. We are also invited to make a finding of contributory fault by the Trust. Section 123(6) of the Employment Rights Act 1996 (ERA) states that: ‘Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.’. To justify any reduction under this section at all on account of an employee’s conduct, the

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conduct in question must be shown to have caused or contributed to the employee ’s dismissal.

111. What is clear from the case authorities is that section 123(6) imposes an absolute duty on tribunals to consider the issue of contributory fault in any case where it was possible that there was blameworthy conduct on the part of the employee. This is so regardless of whether the issue was raised by the parties.

112. The EAT has cautioned tribunals to mark a clear distinction between considerations relevant to an investigation of fairness of dismissal on the one hand, and those relevant to an investigation of contributory fault on the other. The latter requires clear findings of fact as to what (if any) blameworthy conduct on the employee’s part the employer knew about at the time of dismissal. The question of fairness, on the other hand, entails the tribunal considering whether, in all the circumstances, the employer’s decision to dismiss fell within the band of reasonable responses.

113. It is clear in this case that [NAME_13] process was triggered by the wide-ranging concerns that the police had about the claimant’s conduct in relation to members of his family over a prolonged period. Some of this conduct was admitted by the claimant. In particular, he admitted striking his son, albeit with what he regarded as mitigating circumstances. We accept that he was not prosecuted for this incident, although he did agree to attend a parenting course. We also find that the claimant appeared to accept some culpability in relation to the more general allegations of domestic abuse at the time (see the documents in the supplementary bundle). We also have regard to his failure to disclose these matters to the Trust at the appropriate time. We take the view that it was culpable of the claimant not to have told his employer about some of these matters prior to [NAME_13] referral. In our judgment, it is simply unreasonable of the claimant to attempt to create a stark dividing line between his employment, and his conduct out of work, given his role and its safeguarding context. However, we again concede that the claimant was never prosecuted for any of these allegations.

114. Notwithstanding that fact, it is our view that the matters above do amount to blameworthy conduct. It was this behaviour which triggered [NAME_13] referral and which ultimately placed the Trust in an invidious position. In our judgment, it is just and equitable to have regard to this when assessing try appropriate level of compensation. In coming to a figure under this head, we have viewed the circumstances in the round.

Accordingly, we make a deduction for contributory fault for both the basic and contributory award of 50%.

115. There is an equivalent provision for reduction of the basic award contained in section 122(2) which gives tribunals a wide discretion whether or not to reduce the basic award on the ground of any kind of conduct on the employee’s part that occurred prior to the dismissal and that this discretion allowed a tribunal to choose, in an appropriate case, to make no reduction at all. Given the less restrictive language of section 122(2) it follows that the capacity to make reductions to the compensatory award is more restrictive than in respect of the basic award.

116. For the same reasons as those relied upon under section 122(6), we have decided to make the same reduction of the basic award as we have the compensatory award i.e. 50%.

Claim Number: 3303067/2024

117. In the light of the above decisions, there will be a need for a remedy hearing unless the parties can arrive at a negotiated settlement in the meantime. We would encourage the parties to explore that possibility.

Approved by:

Employment Judge R Wood

Date: 21 April 2026…………….

Sent to the parties on: 24 April 2026

For the Tribunal Office

Claim no. 3303067/24

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Norwich (In Person)

On: 26-30 January 2026

Before: Employment Judge R Wood; [NAME_6]; [NAME_81] For the Claimant:

[redacted] For the Respondent: [redacted]

JUDGMENT

1. The claim of direct discrimination on the grounds of race was not made within the time required by the relevant statue and is dismissed.

2. The claim of harassment related to race was not made within the time period required by the relevant statue and is dismissed.

3. The claim of unfairly dismissal is well founded and is therefore allowed.

Approved by:

Richard Wood

Employment Judge R Wood

Date: 30 January 2026…………….

Sent to the parties on: .25 March 2026.

............................................................

For the Tribunal Office

Claim Number: 3303067/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Norwich In Person

On: 26-30 January 2026

REQUEST FOR RECONSIDERATION: RULE 68 OF THE EMPLOYMENT TRIBUNAL PROCEDURE RULES 2024

Background

The Hearing

3. The final hearing of this claim was heard by the Tribunal sitting at Norwich (in person) from 26 to 30 January 2026. We handed down a extempore judgment, and then produced written reasons at the request of the claimant. This document is to be read in conjunction with those written reasons, in which we set out that we had dismissed the discrimination and harassment claims. However, we allowed the unfair dismissal claim. In summary, we found that there had been procedural unfairness but that the respondent would have been able to dismiss the claimant fairly, and that this would have taken an additional 6 weeks (Polkey v AE Dayton Service Ltd [1987] IRLR 50 (HL)).

Claim Number: 3303067/2024

4. We also found that the claimant’s conduct had contributed to the dismissal. We found that there should be a reduction in the basic and compensatory award of 50% pursuant to section 122 and 123 of the employment Rights Act 1996.

5. On 1 May 2026, the Tribunal heard the remedy hearing and made an award of compensation in the sum of £1350

6. I am now been asked to consider a request for reconsideration of the liability decision dated 5 April 2026. What follows is my consideration of that request.

7. The request is in three main parts:

(i) first, that the Tribunal had been wrong to dismiss his discrimination and harassment claims on the basis that they were out of time under section 123 of the Equality Act 2010. He argues that this is inconsistent with a case management order of Employment Judge Warren on 3 October 2024 by which Judge Warren permitted the claim to be amended to include the claim for harassment and discrimination to the extent necessary;

(ii) second, that the judgment of the Tribunal appeared to place significant weight on the respondent’ submissions that the discrimination and harassment matters were “resolved” at the Preliminary Hearing. This appears to refer to the same order of Employment Judge Warren and is a separate point to the one made above; and

(iii) third, the Tribunal’s findings were unsupported by evidence in that the respondent had provided no evidence of a disciplinary process; and that no independent investigation had been conducted. The respondent had tried to convert a private family matter, resolved by the authorities with no further action, into a workplace safeguarding issue. The claimant asserts that this was a misinterpretation of law, and the Tribunal did not address this fundamental point.

8. A mandatory scheme for considering applications for reconsideration of Employment Tribunal judgments is set out in Part 12 of the Employment Tribunal Rules 2024 (“ETR”):

68. —(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the deci- sion again. In doing so, the Tribunal is not required to come to the same conclusion.

Application for reconsideration 69. Except where it is made in the course of a hearing, an application for reconsider- ation must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of— (a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or the date that the written reasons were sent, if these were sent separately.

Claim Number: 3303067/2024

Process for reconsideration 70—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment be- ing varied or revoked (including, unless there are special reasons, where substan- tially the same application has already been made and refused), the applica- tion must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribu- nal must send a notice to the parties specifying the period by which any written rep- resentations in respect of the application must be received by the Tribunal, and seek- ing the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the applica- tion. (4) If the application has not been refused under paragraph (2), the judg- ment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.” Point 1: Time limit issue

8. The basis of the Tribunal’s decision on liability in respect of discrimination and harassment was clearly set out in the written reasons. It was primarily made on the grounds that it found there was insufficient evidence to establish even a prima facie case of either direct discrimination, or harassment related on race. In the Tribunal’s judgment, it was plainly the case that the alleged less favourable treatment, or the alleged acts of harassment, were not motivated by, or related, race. This is the primary finding of fact upon which that part of the judgment is based.

9. Because it was invited to do so, the Tribunal also considered the question of time limits. It did so primarily because it appeared as an issue on the list of issues at [33]. This list had been previously agreed between the parties, with amendment, at the hearing before Judge Warren. The parties also confirmed their agreement to the list of issues at the start of the hearing before the Tribunal in January 2026. The respondent also made submissions on the point. At no time during the hearing did the claimant ever object to the Tribunal considering time limits. He did not raise the question of inconsistency with a previous case management order.

10. Having looked at the order made by Judge Warren, to the extent that it is set out in the case management order, it is clear that he did consider time limits as part of his consideration of the application to amend. It is no criticism of Judge Warren when I make the observation that it is not immediately apparent what findings he made about time limits, or the extent to which they played a part in him allowing the application. It is permissible for an application to be made whilst also allowing the question of time limits to be decided by the Tribunal at the final hearing. I confess that these were not

Claim Number: 3303067/2024

matters the Tribunal considered when coming to its decision because we treated the agreed list of issues as a comprehensive list of the matters we had to decide.

11. In any event, I fail to see the significance of this issue in a broader sense. As stated, we decided the case in respect of discrimination and harassment, not only on the basis of time limits, but also on their substantive merits. Even if there were grounds for amending that part of the decision relating to time limits, it could have no meaningful impact on the practical outcome for the claimant i.e. his claim on both counts would remain dismissed.

I therefore find that there is no reasonable prospect of the judgment being varied or revoked on this ground. I therefore refuse the application on this ground.

Point 2: that the discrimination and harassment matters were “resolved” at the Preliminary Hearing

12. I am afraid I could not follow the logic of this aspect of the request. As I have already reiterated, the Tribunal came to a view as to the substantive merit of the discrimination and harassment claims based on the evidence that it had heard. I am not aware that the respondent made the submissions that are attributed to it in this regard. There was no question that the Tribunal felt bound by any findings of fact that may have been made by Judge Warren on a previous occasion (if any). The Tribunal made its own findings based on the witness statement evidence, and the other documentary evidence presented at the final hearing.

13. In relation to this point, I conclude that there is no reasonable prospect of the judgment being varied or revoked on this ground.

Point 3: the Tribunal’s findings on unfair dismissal were unsupported by evidence

14. On the question of the fairness of his dismissal, we made very clear findings of fact based on the evidence. Indeed, we agreed that his dismissal was unfair. However, it is clear that the claimant simply does not agree with many of our findings, or that they are valid having regard to the evidence. With respect to the claimant, he has never accepted the gravity of the issues raised by [NAME_13] determination. He does not accept that it was appropriate for [NAME_13] to have regard to his ‘domestic’ issues. The claimant still does not agree that his ‘private family matters’ could properly give rise to safeguarding concerns at work. We disagreed. More importantly, we found that it was reasonable in the circumstances for the respondent to take such matters into account when considering the claimant’s dismissal.

15. In any event, it is my view that these matters should be raised as grounds of appeal. They are not suitable matters for a request for reconsideration.

16. For all of the reasons set to above, I dismiss the application under rule 70(2) i.e. that it has no reasonable prospect of success.

Approved by:

Employment Judge R Wood

Date: 18 May 2026

Claim Number: 3303067/2024

Sent to the parties on: 27 May 2026

For the Tribunal Office