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taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6430
Experience:  15 years experience of advising on employment law matters
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I am a director small domiciliary care company. I have

Customer Question

I am a director for a small domiciliary care company. I have an ex-carer (referred to as XX) who left 2 months ago and have recently sent me a settlement letter for racial discrimination , unfair treatment for £27k and threatening tribunal (though not yet , not even at early conciliation yet)
I subsequently invited her to a grievance hearing (even though she has resigned) which has been thr and now at a stage of conducting investigation.
XX claim is that (she is asian and worked for 22 months with us) she is on zero rate contract and was NOT being offered contracted hours like her peers have was because of her race. Her peers (XX claims) are all white , they are senior carers and have contracted hours and she does the same role as her peers even though she is not the same job title she does the same role.
We have around 80 carers of mix ethnic diversity, mostly on zero rate, about 7 are senior carers on zero rate (3 white and 4 non white) and we have 4 senior carers on contracted hours (3 white and 1 non white). Our office staff are 4 white and 5 non white.
Before I continue to type more details of the different roles and responsibility of our carers - would it be possible to get an employment law expert to come back to me , ask me specific questions and I can give out more details?
Submitted: 1 year ago.
Category: Employment Law
Expert:  taratill replied 1 year ago.
Hello Terry my name is***** am a qualified employment solicitor with almost 20 years experience. I understand you are concerned there will be a claim but what specifically would you like to know about this?
Customer: replied 1 year ago.

I am in the process of building an grievance response to her grievance/ claim. I certainly have not racially discriminated her I am colour blind! and will reject her grievance but I need to build a strong case/ reason for this.

I would like your expertise in terms of :

1) how I can build a strong case - I can answer what ever questions you may have)

2) in your own experience what my chances are if this really goes to tribunal (after you hear all my answers).

Expert:  taratill replied 1 year ago.
Hi in order to help you I need to know if you agree there has been a difference in treatment and if so what was the reason for it if not to do with her race?
Customer: replied 1 year ago.

There has been no difference in treatment - I treat everyone the same.

We currently have 4 contracted Senior carers (3 white, 1 non white). They are offered contracted for a number of criteria:

1) ideally strong previous care experience from previous employment

2) Good availability / flexbility /reliable to work even during un socialble hours

3) as one key role they need to do is to cover client calls at short notice when the normal carers failed to attend the call e.g. sickness. So they need to have "Universal compatibility" with all clients ("companionship" is a key strength of our company therefore it is important that our contracted senior carers can be good companion with any clients that we send them to do)

4) Company financial position - affordability at the time of hiring

They don't have to have all the above 4 Points to be offered the contract but point 3) is of critical importance.

XX does not have point 3) nor 1) , she has point 2) only.

Now she has argued that she does do "out of office" on call supervisor which involves covering any client's calls if the carers goes off sick because the company is already allowing her to do that therefore she is entitled to contracted hours like her white peers.

To give you a background of what "out of office" on call supervisor role is . Basically we currently have a team of "out of office" on call supervisors, these are mixture of carers (zero rate) , senior carers (zero rate) and contracted senior carers. To be part of this team, they are usually better than average carer and are more capable , the nature of the out of office on call supervisor means that if a carer fails to go to attend to a client for whatever reason during out of hours, then the out of office supervisor will go to attend this call - now admittedly there is an element of having "universal compatibility" to do this role but as we are short of these staff. We knew XX may have problems with some clients (since we recieved more incompatibility comments from clients with XX than with any other on-call supervisor) - but nevertheless she was willing and eager to do it so we use the "80:20 rule" and should she encounter a client that she cannot go in we would have to get someone else in instead. Now these carers on zero rate including XX only volunteer to be part of this out of office team whereas those on contracted hours needs to do this as part of their condition. The mixture of this team is both contracted and non contracted hours with white and non-white staff.

So she is not the only one NOT to be given contracted hours, there are other white , non-white staff doing similar role but not given contracted hours.

Does it make sense to you?

Customer: replied 1 year ago.

Bit more history - we did like XX as she is willing to learn and was flexible (point 2 criteria) and she had great organisation skill since she worked at office previously but lacking in housekeeping and cooking skills.

We thought if we trained her up with more mentoring we can offer her part time contracted hours. So I took one of my senior member of staff to spend one to one time with her with intention that after few months of training she would be of sufficient standards.

We started this end of last year, admittedly there was no black and white formal documented plans (we simply do not have the resource to document training plans) but rather it was XX to shadow a senior member of staff doing housekeeping, spotchecking other carers so XX would know what kind of things we look for. This went on for few weeks, but due to company priorities we had to pend on the training (not cancelled) but just pend until more urgent issues were resolved - admittedly this was probably not communicated probably to XX.

But this was certainly nothing to do with her race?!

Then there was one on-call supervisor incidents where she was oncall and clashed with other members of carers and I then had hesistation in continuing with the training whether she was the right staff to be given contracted hours, athough I knew the incidents wasn't entirely her fault, but it did put a question mark and unfortunately when a similar incident occurred second time - she immediately resigned.

Customer: replied 1 year ago.

Also Jenny, just to add that NO contracted carers were given the same time and training as XX. She was the only one we supported and spend so much time and effort on her. Because we really did like her and she had great attributes just some major areas that needed improvement

I probably call that "positive" discrimination!!

Expert:  taratill replied 1 year ago.
Hi thanks for your responses please give me some time to consider them and revert to you.
Expert:  taratill replied 1 year ago.
Hi Terry can you tell me how many white and non white staff with an equivalent length of service were on contracted hours at the time?
Expert:  taratill replied 1 year ago.
Hi Terry, have you responded to the solicitors letter asking for this sum of money by way of settlement yet or have you just held the grievance. It is my view based upon the information that you have given that her grievance should not be upheld. There is no difference of treatment based upon her race. You should write to her to say the reasons the grievance is not upheld.If there is a position you could offer her you could consider doing that, although I can understand you might not want to. In the event she does claim it is my belief that this can be defended. I understand you want concrete advice if you have specific questions as to the law or process of the tribunal I will be happy to answer them.
Expert:  taratill replied 1 year ago.
Hi Terry do you have any more questions about this?
Customer: replied 1 year ago.

Yes plenty..the webs portal have lost two of my answers to yourselves!

Customer: replied 1 year ago.

there are two types of contracted staff

1) office based care staff (care coordaintors, staff supervisors , care manager etc) these are predmonantly full time - 4 white , 5 non white

2) contracted carers - 3 white (20 , 20, 30 hours each), 1 non white (20 hours)

Expert:  taratill replied 1 year ago.
Terry on the basis of what you say I cannot see any merit to her claim, it is clear from your stats that you are not discriminating in access to these roles.
Expert:  taratill replied 1 year ago.
Hello Terry how else can I help you with this/
Customer: replied 1 year ago.

Hi Jenny,

This is another related questions but wasn't in the original part but I hope you don't mind answering as I was expecting more details answers from yourself but didn't seem to get the expected answer. So if we couldn't get the depth, I hope you don't mind going for the breath - the same ex-staff have also raised allegations say another senior member of the company have text her with verbal abuse and on the day after she handed in her notice of resignation. As a result of the abuse , she is afraid to leave the house and is suffering from stress and can't find a job and as a result - the employer (myself) of the senior member of staff should be liable for her stress. Now I heard the whole recordings and it was an abusive exchange from both parties but initiated from XX first. Few days later my senior staff apparantly her son called XX and threatening her further. I investigated first incident of the abuse exchange and as both have since resigned (my senior staff resigned the next day) - I didn't take it further. It was only a month later when XX union rep wrote to me to inform me of the second incident (with the son) was I being made aware.

In this situation , are there any grounds that employer are responsible for employee's action from both the first incident and the second incident?

Expert:  taratill replied 1 year ago.
Was the abuse of a racial nature?
Customer: replied 1 year ago.

No - they are both of asian background. Both were calling each other some very degrogative names " cxnt, fxcking bxtch, fat pig, fcking this and fcking that" but the senior member of my staff did say (as part of a long series of abusive exchange) " I will come to your house to rip your head off.." XX did start it off the whole chain first but my staff did say rip your head off - XX was in the client's home when she did this - so definite breach of contract and potentiallly risk to client's well being whilst my staff was on leave due to personal reasons - when all this took place.