Claimant v First Call Contract Services Ltd
Outcome
Individual claims
On 27 March 2023, R2 messaged the claimant saying she could not check his right to work. The tribunal found this was not a lie but an inaccurate understanding of the claimant's right to work as an asylum seeker. The reason for the treatment was R2's genuine but mistaken belief about work restrictions, not race. A white comparator in the same circumstances would have been treated the same. The claimant's race (Nigerian) was known from his application form.
R2 refused to allow the claimant to progress to Stage 2 of the onboarding process on 27 March 2023. The tribunal found the reason was R2's genuine but mistaken belief that the claimant did not have the right to work full-time during term time. A hypothetical white comparator in the same situation would have been treated the same way. Race played no part in the decision.
On 28 March 2023, R3 said R1 could not accept the claimant for the job role. The tribunal found R3 did not lie about the claimant being 'kicked out of school'. R3's refusal was based on a genuine but mistaken belief that the claimant's immigration status prevented full-time work. The tribunal accepted this was a full explanation unrelated to race. A white comparator in the same situation would have been treated identically.
Facts
The claimant, a Black African asylum seeker, applied for a role as an aircraft cleaner at DHL Gatwick through First Call Contract Services Ltd on 21 March 2023. After his interview on 22 March 2023, R2 conducted an Employer Checking Service (ECS) right to work check. The check returned with restrictions indicating 'Student: A maximum of 20 hours per week during term time'. R2 and R3 mistakenly believed this meant the claimant could not work full-time, even though as an asylum seeker he was entitled to work full-time regardless of student status. On 27-28 March 2023, the claimant was informed he could not progress to the next stage of the onboarding process. R1 later acknowledged the error, apologised, and offered to continue the application and a goodwill payment, but the claimant rejected this and brought discrimination claims.
Decision
The tribunal dismissed all three allegations of direct race discrimination. The tribunal found that R2 and R3 genuinely but mistakenly believed the claimant could not work full-time due to his immigration status. The tribunal accepted that the respondents' treatment of the claimant was not because of his race but because of a misunderstanding of asylum seeker work restrictions. A hypothetical white comparator in the same circumstances would have been treated identically. The claimant's nationality was already known from his application form, so seeing him in person could not have triggered racial discrimination.
Practical note
Employers may successfully defend race discrimination claims where they can demonstrate that adverse treatment resulted from a genuine (even if mistaken) belief about immigration restrictions, provided a hypothetical comparator of a different race would have been treated identically in the same circumstances.
Legal authorities cited
Statutes
Case details
- Case number
- 3305218/2023
- Decision date
- 12 March 2025
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- professional services
- Represented
- Yes
- Rep type
- lay rep
Employment details
- Role
- aircraft cleaner
Claimant representation
- Represented
- No