“But the session started with Marianne Griffiths, chief executive of both Western Sussex Hospitals Foundation Trust and Brighton and Sussex University Hospitals Trust, talking about the very difficult situation she had inherited at BSUH where relations with some of its BME workforce were very poor – she said she had not realised the extent of ‘the damage done’ to the organisation. This had been longstanding and toxic, with what she described as ‘sticking plaster’ solutions in place and had led to a number of employment tribunal cases. When Ms Griffiths was appointed nearly three years ago, she decided to address the issues and asked Yvonne Coghill, director of implementation for the Workforce Racial Equality Standard, for assistance. She found there were issues which were not being addressed around inequalities but there was almost an ‘extremist, very anti-organisational’ BME structure which excluded anyone who was LGBT and did not really like anyone who was not Christian. But there was also a need to lead from the front: the trust had to do some ‘brave things’ which led to employment tribunals but was a signal to the organisation that they were taking the issues seriously. She set up a board-led network structure – not just for BME staff but also those who were LGBT… .”
“No disciplinary action relating to conduct including the issuing of a formal oral warning may be undertaken outside of this disciplinary policy and procedure.”
“The approach of the minority member, and her view that it was unfair to reopen the case, were set out at length in para 26 of the decision. These were powerful points but they were obviously considered by the majority not to be a sufficient basis for establishing unfairness. Paragraph 27 then gives the majority's view; it seems to me that the majority is there saying that the justification for reopening the case lay in the fact that the allegations of misconduct were very serious because they involved a risk to a member of the public, and that new management were entitled to take a different view about the gravity of the conduct. In my judgment this was a proper and sufficient basis for the majority's conclusion that the dismissals were fair notwithstanding that the double jeopardy principle was infringed.”
“138. The particular and unusual circumstances have been set out above. What Mrs Griffiths was faced with was a NHS Trust in special measures in respect of which the CQC had made an adverse finding that harassment and discrimination was rife. One of the individuals who had been found responsible of unlawful discrimination was the Claimant. It was she who held the very senior position of Associate Director of Transformation. As Mrs Griffiths put it in her witness statement, ‘hers was a leadership role related to race equality and it was not objectively credible or acceptable for her to lead on the important issue of race equality, which . . . has respect at its heart, having been found to have acted in a way that was discriminatory and lacking respect for colleagues on more than one occasion.’ That comment was made by Mrs Griffiths after she had said that the Claimant was not prepared to engage with her. … 142. In our judgment it was within the range of reasonable responses for [R2], through Mrs Griffiths, to decide to dismiss the Claimant in the particular unusual circumstances of this case. Our conclusion is based upon the combination of the factual findings which were made by Ms Cashman, the particular role held by the Claimant the criticisms in the CQC report and the Claimant’s unwillingness to accept any responsibility at the meeting with Mrs Griffiths.”
“(1) In determining for the purposes 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— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer 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.”
“131. In our view this matter can easily be argued either way, but the outcome is of no particular relevance. One way of looking at it is that in the widest sense the dismissal was related to the conduct of the Claimant (and therefore a reason within section 92(1)(b)) because of the findings made by Ms Cashman of unlawful conduct under theEquality Act 2010 . Another more subtle concept is that the reason was the incompatibility of the Claimant’s role with the findings which had been made in the earlier disciplinary proceeding, that being SOSR. It was the latter which was urged on us by Mr Kibling. 132. We conclude that the dismissal can fall within either category. Thus the dismissal was potentially fair. What is then important is to apply the provisions of section 98(4) of the 1996 Act … .”
“What was not put to Mrs Griffiths was that the reason that she considered that regulation 5 applied was because of either or both of the carrying out of the protected acts, or the making of a protected disclosure.”
“105. One of the areas raised in this hearing related to the consequences of a claim in the Employment Tribunal against BSUH by Mr Akinwumni. Criticisms were made by the Tribunal of three senior employees of BSUH. In July 2017 Mr Findlay considered whether further action ought to be taken against any of them under the 2014 Regulations. He concluded that it was not appropriate. One individual had ceased to be a board director and another had resigned. Mr Findlay concluded that the role of the third, Mr H, was not sufficiently senior in the management hierarchy, although that individual was a senior clinician.”