Mr E K Bett v Betsi Cadwaladr University Local Health Board: 1601297/2022
EMPLOYMENT TRIBUNALS
Case No 1601297/2022
Between
Mr E K BettClaimantBetsi Cadwaladr University Local Health BoardRespondent
Before
Employment Judge P Davies
Members
Mrs J BeardMr A FryerMs J Williams (instructed by Counsel) for respondentDate 26 June 2025
JUDGMENT
[1]The claim of unfair dismissal is dismissed.[2]The claims of race and sexual orientation discrimination are dismissed.[3]The claim of harassment based on race and sexual orientation is dismissed.[4]The claim of victimisation is dismissed.
REASONS
[1]By a claim received on 21 October 2022 the Claimant, Mr Emmanuel Kipngeno Bett claimed unfair dismissal and discrimination based on race together with notice pay and holiday pay arising from the termination of employment as a Registered Nurse based at Ysbyty Glan Clwyd Hospital, Bodelwyddan, North Wales. There was included in the claim form a reference to another Claimant in a separate claim that of Miss Florence Maina, namely claim number 1601298/2022.[2]The Response denies all the claims brought by the Claimant. It was also mentioned in the Grounds of Resistance that a Response had already been submitted in respect of Miss Florence Maina’s claim under a difference reference number. The Respondent submitted the claims need to be separated as they do not arise from the same set of circumstances and are very different claims. Hence the Response was filed with specific reference to Mr Bett’s claim. It was noted in the Response that the Claimant resigned on 2 September 2022.[3]An application to amend and add sexual orientation discrimination was made in March 2023 and the Respondents consented to the proposed amendments. There were Amended Grounds of Resistance which denied these amended claims.[4]On 8 June 2023 there was a Case Management Order which contained a case summary and the issues that a Tribunal would decide. It was stated in the case summary that the Claimant is a black African male of Kenyan origin. He is a gay man. His claims are about allegations of discrimination on the grounds of race and sexual orientation both by employees of the Respondent and patients towards the Claimant. It is also alleged that the discriminatory treatment was the reason for the Claimant’s resignation. In the List of Issues for the purposes of direct race and sexual orientation discrimination under Section 13 of the Equality Act 2010 the comparison was with a white female nurse. The claim of harassment related to race and sexual orientation under Section 26 of the Equality Act 2010 and referred to a number of matters set out under the allegations of direct race and sexual orientation discrimination. In respect of victimisation the issue was did the Claimant do a protected act as follows – send a letter from Equality 4 black nurses to Jane Owen, Kay Hannigan, and Denise Williams on 26 August 2022 saying that the decision to suspend without a reason was racially motivated and showed unconscious bias etc.? and did the Respondent do the following things – refer him to the Nursing and Midwifery Council, the Police Service, Safeguarding and Immigration and Border Control; referred to external agencies without giving the Claimant the reasons for the referral; by doing so did it subject the Claimant to detriment; if so was it because the Claimant did a protected act; and was it because the Respondent believed the Claimant had done or might do a protected act. The List of Issues included a number of matters under the heading of Remedy for Discrimination or Victimisation but it was discussed with the parties that this hearing should deal with the issue of liability and not remedy, and that if it became necessary there would be a further hearing to deal with the issue of remedy.[5]The Tribunal heard oral evidence from Miss Kay Hannigan, Associate Director of People Services; Mrs Jane Owen, Associate Director of Nursing; Mrs Eleri Anderson, Matron; Mr Richard Dolphin, Area Safeguarding Manager; Mrs Bethan Rogers, a Ward Manager; Mrs Rebecca Lloyd-Lewis, a Ward Manager; Mrs Fiona Pritchard-Moore, Staff Nurse; Miss Jennifer Cosgrove, Deputy Manager; Mrs Maria Griffiths, Healthcare Support Worker; Miss Melanie Roberts, Healthcare Support Worker; Miss Victoria Stafford, Vascular Advanced Nurse Practitioner; Miss Caroline Lidford, Professional Development Project Lead Nurse; Mrs Anne-Marie Rowlands, Director of Nursing Regulation; and the Claimant Mr Emmanuel Bett.[6]The witness statement of Beverly Thomas, Therapist, dated 1 February 2024 was agreed evidence. The witness statement of Miss Florence Maina dated 10 June 2024 was not agreed evidence, and Miss Maina was not called to give evidence. The Respondents representative said that Miss Maina had “disappeared”.[7]The Claimant’s full name is Emmanuel Kipngeno Bett. The Claimant said that some people call him Emmanuel and some people call him Kip. The Claimant has several years’ experience of nursing in Kenya and came to the UK in the middle of the COVID pandemic. According to the electronic staff record the Claimant started on 30 March 2020 but the evidence of Mrs Rebecca Lloyd-Lewis was that the Claimant began working on Ward 2 at Aberconwy Ward in Llandudno Hospital on 19 March 2020 and she became the Claimant’s Line Manager.[8]The Respondents have Practise Development Nurses to support the training learning and development of staff across the wards which includes internationally educated nurses. All new nurses including internationally educated nurses are also allocated a Preceptor to support them on their ward. Internationally educated nurses would be trained to pass their Objective Structured Clinical Examinations (OSCE’s) to qualify as nurses in the UK and be allocated to the wards to practice. The Respondents have a support network called the BCU Unity Ethnic Minority and Overseas Staff network to support staff from ethnic minorities and overseas. Mr Raj Metri, Coronary Care Nurse, and was a key member of the Respondents network. The Claimant was sent details of this network by Mrs Rebecca Lloyd-Lewis in an email on 24 November 2020. Incident on 19 November 2020[9]The Claimant alleges that he was targeted by Mrs Rebecca Lloyd-Lewis for failing to give a patient an intravenous mixture of potassium chloride when he was not trained to do so. (Paragraph 4.2.1 of the List of Issues).[10]A patient who was suffering with serious illness was not administered with intravenous fluids as required on 19 November 2020 and the patient passed away on 24 November 2020. The Claimant was the patient’s allocated nurse on this day. However the Claimant was not trained to administer intravenous fluids. Mrs Rebecca Lloyd-Lewis says that she was under a lot of pressure with having to administer intravenous medications for staff who had not done their IV training as well as taking care of other patients on the ward in addition managing both discharges and admissions. Within the handover Mrs Lloyd-Lewis asked that fluids be administered to the Claimant’s patient as a matter of urgency.[11]The incident was subject to a serious incident review and Mrs Lloyd-Lewis was asked to obtain statements from the staff involved which included the Claimant. As part of the process the Claimant produced a handwritten statement (pages 316 to 320 of the bundle). The Clinical Governance Administrator requested the handwritten statement of the Claimant to be typed on the correct statement template.[12]As a result of an investigation and taking into account the contents of the death certificate of the patient it was concluded that lack of potassium was not the cause of death and that the incident was downgraded and did not need to be investigated as a serious incident.[13]We find that the Claimant was not blamed for not administering intravenous medication but was asked to provide a statement to clarify the circumstances that were being at that time investigated as well as other staff involved being asked for statements.[14]The Respondents say that this claim itself is out of time. We have considered this matter and in our discretion taking into account factors referred to in cases such as Abertawe Bro Morgannwg University Local Health Board -v- Morgan [2018] we consider it is just and equitable to extend time so that this matter may be litigated but we find that the contention of the Claimant that he was unjustly blamed and coerced to apologise is not correct and the Claimant was asked to provide statements as set out above being part of the investigative process. We reject the submission of the Claimant regarding this as being an act of blame or coercion. The Claimant was not targeted by Rebecca Lloyd-Lewis on the ground of his race or sexual orientation. Incident on 10 January 2021[15]A Safeguarding Board report was made regarding a complaint from a patient’s family member that the patient had developed a pressure sore when she was discharged. The Claimant had discharged the patient and had not recognised the wound nor had he documented it within the records comprehensively. On 18 January 2021 the Claimant provided a statement which was brief. Mrs Rebecca Lloyd-Lewis sent the safeguarding report to the Claimant in an email of 18 January 2021 and requested notes which said “we need to look at what has gone wrong”. Mrs Lloyd-Lewis said that once the Claimant had reviewed the notes a more thorough statement needs to be submitted. A further email of 20 January 2021 was sent by Mrs Lloyd-Lewis asking for a more thorough statement because the Head of Nursing is involved and is keen to get the matter resolved. The Claimant provided a detailed account on 24 January 2021. Mrs Lloyd-Lewis says that she asked the Claimant to reflect and document the incident for learning purposes as opposed to starting disciplinary action. We accept the evidence of Mrs Lloyd-Lewis that that was her intention. Evidence of the teamworking support is found in the appraisal of the Claimant on 8 August 2021 where the appraiser said that the Claimant was hardworking and always willing to do extra shifts to help the ward out when short staffed. He was also supportive towards team members and always willing to help others and always treats patients with dignity and respect. The last 16 months were said to have not been easy, but the Claimant has never complained and has demonstrated he has always done his best in difficult circumstances. We accept that this was an accurate assessment of the Claimant. It does not show a lack of regard for the Claimant or ignorance of the importance of supporting the team in difficult and busy circumstances.[16]The Claimant joined Ward 10 at Glan Clwyd Hospital about May 2021. Incident in 2021[17]It is alleged that the Respondents failed to take any action when the Claimant was racially verbally abused by a patient and physically assaulted by the same patient when she threw a cup of water over him. Instead the Respondents made a note that the Claimant should not be allocated to care for that patient in the future.[18]In his resignation letter dated 2 September 2022 the Claimant says that he was walking along the corridor in Ward 9 and was approached by a female patient whom he did not know and she was very aggressive and began shouting at him. She asked him “how many black niggers are there? I don’t want them.”. The Claimant says he was startled and surprised and within a few moments the patient went into her room and grabbed a cup of water and threw this in his direction. The Claimant says he turned and ran away and the patient came after him. This was witnessed by Melanie Roberts and Maria Griffiths and he escalated his concern to his manager Rebecca. Instead of taking any action to support his wellbeing a note was made that he must not be allocated to care for this particular patient.[19]Mrs Rebecca Lloyd-Lewis says that she did not witness such an incident and cannot recall the Claimant raising the issue with her. She has no recollection of making a note in the ward diary. Mrs Melanie Roberts cannot recall such an incident occurring. Neither does Maria Griffiths recollect this incident but like Mrs Melanie Roberts Mrs Maria Griffiths says that she would have intervened had she seen a patient throw a glass of water at the Claimant or anybody else. The Claimant in his evidence said that he is not saying that these individuals are lying but maybe they cannot remember or may have forgotten about this incident. He says that no-one supported him. This alleged incident happened in a dementia ward and Mrs Rebecca Lloyd-Lewis says there would occasionally be challenging behaviour either physically or verbally but that this would have been documented to ensure it was discussed on ward handover to mitigate any further risk to staff.[20]We find that if the incident had happened in the way that the Claimant alleges being witnessed by the two healthcare support workers then they would have remembered such an incident but they do not. We accept their evidence that they did not witness such an incident. In the light of the Claimant’s evidence there have been several incidents which had happened but he could not remember exact dates it is surprising that this incident was not particularly remembered by the Claimant and it appears he accepted on his version the fact that a note would be made that he was not to work with the patient. If this is correct it does not suggest a lack of support of himself as he suggests but the reverse. We do not find that this incident in any event demonstrated a lack of support for the Claimant in the way that he alleges. Incident on 22/23 March 2022[21]It is alleged that the Claimant was belittled by a nurse Rianne because of his accent and mocked asking whether he could add 1 + 2 = 3 and then she later spoke Welsh to another member of staff in front of him which the Claimant believed they were speaking about him and speaking in Welsh to conceal what they were saying.[22]The Claimant says that he raised these issues in the handover to Staff Nurse Fiona Pritchard-Moore. The Claimant says that Fiona Pritchard-Moore said “how strange” and did not escalate his concerns. Also she said that “once they see you formal they treat you worse.”. Mrs Pritchard-Moore says she could not recall this incident and that she would have taken appropriate action to raise it.[23]We accept that the Claimant did make a complaint and that Mrs Rebecca Lloyd-Lewis made enquiries to locate such an individual but they were unable to locate a Rianne working within the unit. Mrs Fiona Pritchard-Moore says that the Claimant did not make a report to her. We accept that Mrs Pritchard-Moore thought that she got on very well with the Claimant and that in their ward everyone looked out for each other. Mrs Pritchard-Moore said that it was a good team on this ward. She had not been aware of the Claimant or others not being given support as with her white colleagues. We accept that the Claimant may have mentioned the incident to Mrs Pritchard-Moore and that she might have said “how strange” but did not say the complaint would make it worse. We do not find that the speaking of Welsh by the nurse called Rianne was unusual in the circumstances of Welsh being commonly used among a large section of the population in North Wales. We do not infer as the Claimant does they were speaking about him to conceal what they were saying. There is no contemporaneous evidence about such a matter and it is not surprising that a staff nurse would not escalate the matter. The situation as described by Mrs Pritchard-Moore about the teamwork support to each other we accept as being accurate and that the Claimant was not excluded from this situation. Allegation concerning events from August 2022[24]On 19 August 2022 there began a series of events which led to the suspension of the Claimant. The Respondents say that they were following procedures regarding safeguarding in particular Section 5 of All Wales Procedures namely, Safeguarding allegations/concerns about practitioners or those in a position of trust. (See page 449 to 475 of the bundle).[25]In the introduction to Section 5 it says “the main factor to consider when applying these procedures is whether the individual subject to the allegation or concern, occupies a position of trust; this is where a member of staff/volunteer is in a position of power or influence over a child or adult at risk, by virtue of the work or nature of activity being undertaken”.[26]Mr Richard Dolphin is the Area Safeguarding Manager for Glan Clwyd Hospital. He has responsibility for leading all the operational aspects of safeguarding including managing the Central Safeguarding Team and leading with the Safeguarding Service Delivery, providing support/advice to the team and other colleagues. Mr Dolphin says that the Section 5 safeguarding allegation/concerns about practitioners and those in a position of trust procedure is underpinned by the Social Services and Wellbeing (Wales) Act 2014 and is supplemented by the North Wales Safeguarding Board Practice Guide (page 295 to 435 of the bundle)”.[27]Mr Dolphin became involved with the allegation involving the Claimant on 19 August 2022 following a DATIX notification raising safeguarding concerns.[28]The DATIX incident form is on page 524(a) of the bundle. This was created by Mr John Hughes, Safeguarding Specialist, as a result of information that he had been given by Mr David Pepper, the Hospital Substance Misuse Worker. The incident date is recorded as 17 August 2022 and in the brief description of the incident it is said that patient A had substance and mental health problems and had been admitted to Ward 9 and said that he would be needing prep (anti-viral medication) because he had had a number of sexual contacts whilst he was a patient on his admission and that the sex had been consensual with male members of staff. The patient stated that he had been able to use an App to find these contacts. The alcohol nurse arranged an immediate appointment with the Sexual Health Clinic where the patient was seen by the consultant and specialist nurse. Safeguarding was to be completed for the purposes of guidance. In that part of the DATIX form under the heading of investigator please add all the staff who will be reviewing or investigating this incident in this field, five individuals are names which include Mrs Jane Owen, Associate Director of Nursing for Central IHC. In the progress notes it is said that the author is Mrs Jane Owen and that North Wales Police aware, Anne-Marie Rowlands aware, Human Resources aware, Bank and Agency aware.[29]After being informed of the DATIX incident Mrs Jane Owen contacted Mr David Pepper by telephone and asked to meet him on the ward to see if the patient would be happy to speak in relation to the disclosures. This Mrs Jane Owen did. The patient reiterated what he had said earlier and had used an App called Grindr. Patient A alleged that he had exchanged messages with the Claimant and it is alleged the Claimant had attended the ward and engaged in indecent activity. Patient A gave details about these matters. Patient A said that he had a picture on his phone of the staff member whose name was Kip and later said it was Emmanuel and showed this to Mrs Owen. Patient A also alleged that another patient, patient B who was in the bay opposite could verify the account. Patient A was informed by Mr Pepper that there would be a safeguarding referral and he was content with this. The form completed by Mr Pepper is on page 176 to 183 of the bundle. It is noted in the referral that patient A had a long history of mental illness treated and untreated thought to be a bipolar disorder and his issues of impulsivity. The referral was dated 19 August 2022.[30]Mrs Jane Owen and Mr David Pepper then spoke to patient B, having checked that the patient had capacity and was happy to speak to them. Patient B said that a tall nurse wearing light blue scrubs had visited the ward and went straight to patient A’s bedspace and pulled the curtains round. Patient B thought his name was Kip. Patient B said that on one occasion he heard a scuffle with patient A saying “go away, leave me alone.”[31]Mrs Jane Owen went to another ward and spoke with the nurse in charge and asked who would that be, Kip. The nurse in charge said it was the Claimant.[32]Mrs Jane Owen then contacted various individuals regarding safeguarding and to appraise Directors of Nursing of the situation.[33]Mrs Jane Owen then contacted the matron on the ward where the Claimant was working to say that there was a need for a registered nurse tonight. After an urgent safeguarding meeting including Mr Dolphin it was agreed that going forward there would be a completion of a Part 5 referral and that the Claimant would be contacted and informed of the temporary suspension without prejudice pending fact finding after the police had been spoken to. Apart from the North Wales Police the Local Authority was also informed of the situation.[34]Mrs Jane Owen was advised by Mrs Kay Hannigan, Associate Director of People Services, the allegations were so serious that as a neutral act it was determined the Claimant should be instructed not to attend work over the weekend to allow further enquiries to be made. At that time patient A who had made the allegation and patient B were still on the ward.[35]Mrs Jane Owen contacted the police and spoke to a Detective Inspector who advised that the safeguarding referral should be submitted and that had already been undertaken by Mr Dolphin. Mr Dolphin queried if they should inform the staff member and they were advised to contact the staff member as per local procedure and that they would access the referral in due time.[36]In accordance with the procedures Mr Dolphin referred the matter to Denbighshire County Council’s Safeguarding Team on 19 August 2022 at 5:01pm (195 to 200 of the bundle).[37]Mr Dolphin also had regard to the North Wales Safeguarding Board Practice Guide (page 395 to 475 of the bundle). The roles within the Practice Guide were based on Part 5 of the Wales Safeguarding Procedures. The North Wales Safeguarding Board said in paragraph 1.4 they felt that they needed to strengthen guidance on Section 5 in the Wales Safeguarding Procedures. Under Section 2 under the heading “Purpose”, the Practice Guide sets out the process to be followed by agencies when responding to allegations against adults who work with children, young persons and adults at risk.[38]In paragraph 5.4 of the Practice Guide it is said “…. It should be used in all cases in which it is alleged that a person who works with children or adults at risk has * behaved in a way that has harmed or may have harmed a child or adult at risk * may have committed a criminal offence against a child or adult at risk or that has a direct impact on a child or adult at risk * behaved towards a child, children or adults at risk in a way that indicates they are unsuitable to work with either/or children and adults.[39]In Section 6 headed “Making a Report (Referral)” it is said in 6.2 that the person to whom an allegation concern is first reported should treat the matter seriously and keep an open mind. They should not investigate or ask leading questions.[40]In Section 6.3 says “…it must be noted that some allegations are so serious as to require immediate referral to the police and/or Childrens’ and Adult Services”.[41]Under Section 6.8 it is said “the employer/voluntary organisational professional body may need to consider suspending the employee without prejudice, or putting in place support or restrictions to safeguard vulnerable persons. This will also safeguard the employee against accusations interfering with the enquiries and as a safeguard to the organisation.”[42]Section 8 is headed “Professional Strategy Meeting” and says “the professional strategy meeting will be convened by the designated officer for safeguarding (DOS) when child or adult protection concerns have been raised about an individual. This can be either in a personal or professional capacity, where the individual has wider contact with children or with adults at risk and is in a position of trust. Amongst the main functions of the strategy meeting is to share all relevant information about the allegations/concerns in question and to decide what information can be shared with whom, when and who will do this. Also to consider whether the adult’s suitability to continue working with children or adults at risk in his or her current position has been called into question and to consider whether any disciplinary issue is to be followed up, agree at what stage where the disciplinary issues should be followed up, and consider any other factors that may affect the management of the case.”[43]Mr Dolphin says there were concerns that should the Claimant be given specific details of the safeguarding allegation this could increase the risks of the Claimant identifying patient A as the complainant. There was a risk that if patient A or the specifics of the allegations were identified the Claimant may attempt to contact patient A via telephone or the Grindr App to discuss the matter further which carried risks of patient A being intimidated or being encouraged to retract the statement. Consideration was also given to the fact that such disclosure may impede a police investigation.[44]On 19 August Mrs Jane Owen spoke to the Claimant and told him that they had received a complaint about him and because of this she would have to temporarily exclude him from the workplace and that he was not to come into work until they investigated the complaint. Mrs Jane Owen advised this would also put him in safer position. The Claimant asked if this was related to the hospital or the agency and when Mrs Owen asked what he meant by the agency she was told it was nothing. Mrs Jane Owen then asked if the Claimant had a union representative and he said the RCN so Mrs Owen told him to contact them as he would have to attend a meeting in work it was advised that he should get some support. The Claimant said he would. Mrs Jane Owen made him aware that the Claimant should not engage in bank or agency work whilst this was ongoing. The Claimant was upset during the call and asked whether the matter had been reported to the NMC and was told not at this point. Mrs Jane Owen advised the Claimant to access Occupational Health if he needed extra support. Although the Claimant repeatedly asked what it was about Mrs Jane Owen explained that she could not discuss it at this point and would invite him to discuss this at the earliest opportunity.[45]The allegation in the List of Issues 4.25 of the cancellation of the night shift on 19 August 2022 with very little notice is factually correct but the context in which it was made is as set out above. We accept the evidence of the Respondents that in the circumstances they considered suspension to be an appropriate action for the reasons given and that had they not taken the matter seriously and followed the All Wales and Local Safeguarding Procedures they would have not been complying with their duties. This action was a neutral action and was totally unrelated to the Claimant’s race or sexuality.[46]On 19 August 2022 the Claimant contacted the Ward Manager, Mrs Bethan Rogers via telephone whilst she was off work. Mrs Rogers responded asking what was wrong to which she was told that Jane Owen had told him not to attend work that day. The Claimant said that she was pleasant on the telephone but the details of the reason why he could not attend were not provided to him. Because of the concern of the Claimant Mrs Rogers said that she would contact Jane Owen to see what was going on. There is a text exchange on pages 332 and 333 of the bundle between the Claimant and Mrs Rogers. From the text exchange the Claimant is saying that he cannot even think of anything so the weekend is going to be long because Jane Owen told him till Monday he should not worry. He makes the point that Mrs Jane Owen was nice on the phone. Mrs Rogers says that nothing has come to her and that whatever it might be they will deal with it on Monday and she will speak to the Claimant on Monday. On page 335 there is a text exchange between the Claimant and Mrs Rogers in which the Claimant says that he will come in on Monday just after 8.00am. He was worried because he could not think of anything. It is better when you can think of an incident. On 22 August at 8:52am Mrs Rogers says “Morning Emmanuel. Please don’t come in until you are invited in. Jane Owen will be calling you shortly.”.[47]Mrs Fiona Pritchard-Moore, Staff Nurse was working on the same ward as the Claimant. She said that they got on well and was not aware of any tensions in the hospital. On 19 August she was not aware of the reason for suspension. The Claimant telephoned her to ask whether she knew. Mrs Pritchard-Moore said she would try to find out and telephoned Mrs Bethan Rogers. She understood that the Claimant had had a telephone call from the Head of Nursing. Mrs Pritchard-Moore knew the Claimant was not a member of the union so she said that she would support him if he wanted her to attend a meeting and that she would be happy to do so. But she had no further communications from the Claimant and had no more involvement. At no point did Mrs Pritchard-Moore suggest that she should not attend any meeting.[48]The instructions given by Mrs Jane Owen to the Claimant were not because of his race or sexual orientation. It was in accordance with the procedures that the Claimant was told that he would need to attend a meeting at work.[49]On 22 August 2022 at about 9:40am the Claimant turned up on the ward. The Claimant was told to return home by the ward manager until he heard from Mrs Jane Owen. Later that morning Mr John Hughes confirmed there was no decision from North Wales Police yet and therefore Mrs Jane Owen could not disclose reasons about the matter to the Claimant. Following this information Mrs Jane Owen spoke with the Claimant by telephone and asked him to meet her at the site manager’s office at 4.00pm that same day. The Claimant was told that he could bring a trade union representative or a workplace colleague with him but he said he did not wish to bring anyone with him at this point. We reject the suggestion that the Claimant was told to just attend the meeting without any representation. We accept the evidence of Mrs Jane Owen about the advice that she gave. Mrs Jane Owen told the Claimant that workforce would be present but did not tell him that the Matron, Eleri Anderson would also attend. Mrs Jane Owen knew that the Claimant was familiar with Eleri Anderson and thought this would be support for him.[50]Mrs Jane Owen and Mrs Eleri Anderson completed a risk assessment of the situation (page 191 to 193 of the bundle). It is noted in there that claims of two alleged members of staff whom we met were not provided to Mr Pepper at the time of the consultation. It was noted under the heading “Hazard” that the Claimant was employed as a Band 5 Registered Nurse on the ward and had continuing access to patient A and other patients on the ward. Under the heading “Risk” it was said that patient A is a vulnerable adult and other patients could be put at risk of the Claimant’s behaviour. Given the nature of the allegations it was considered appropriate to remove the Claimant from clinical duties and patient contact while they conducted an initial investigation. North Wales Police also indicated that they would question both patient A and the Claimant. It was therefore considered appropriate as a neutral and non-prejudicial act that the Claimant be suspended from duty while investigations were ongoing and a non-patient facing role can be identified for him.[51]Before the meeting on 22 August 2022 Mrs Bethan Rogers sent an email to Mrs Jane Owen for her information that the Claimant had come to the ward that she advised him to go home and await further guidance. It is also said that the Claimant does not have a union. Meeting with the Claimant on 22 August 2022[52]In attendance at the meeting which was held at 4.00pm was Mrs Eleri Anderson, Matron, who was not previously aware of the Claimant as she did not manage the ward he worked on. There was present the Claimant and Mrs Jane Owen. Mrs Denise Williams from HR also attended via Teams. The Claimant was greeted by Mrs Anderson at the door of the meeting room and she showed him into the room. Mrs Anderson did not say anything throughout the meeting. Mrs Jane Owen and Mrs Denise Williams were described by Mrs Anderson as respectful and caring towards the Claimant though the Claimant appeared concerned throughout the meeting and stated he could not pinpoint what the meeting was about and what had gone wrong. Both Mrs Jane Owen and Mrs Denise Williams advised him to join the union so that they could support him. They were unable to disclose the specifics of the allegations to the Claimant at this point and the Claimant was advised about the confidential nature of the investigation and that they would keep him updated. We accept the evidence of Mrs Anderson that no-one talked over the Claimant in the meeting and he was afforded the opportunity to take part and ask questions.[53]Once the meeting had been concluded a lot of support was provided to the Claimant. His letter of suspension was written by Mrs Jane Owen dated 22 August 2022 and summarised the position (page 212 to 213 of the bundle). The suspension was for an initial period of 8 calendar days and the situation would be reviewed on 30 August at 9.00am. Suspension does not constitute disciplinary action. It was recognised that this would be a stressful and difficult time for the Claimant and Mrs Jane Owen would be organising a referral to Occupational Health Department which may include access to counselling services. In addition Mrs Owen says you may find it helpful to have an additional contact to myself to provide support and please let her know if this would be helpful for the Claimant. Mrs Jane Owen says that she will continue to provide regular updates to the Claimant and remain committed to supporting him during this difficult time.[54]We accept the evidence of Mrs Anderson and Mrs Owen about the conduct of the meeting and what was said. We reject the evidence of the Claimant that his pleas to know the allegations were disregarded by senior management attributing to a sense of intimidation and isolation. Whilst it is correct that the Respondents did not inform the Claimant of the reasons for the suspension the basis was explained carefully to the Claimant upon which that decision had been reached and was not done in a way which could be regarded as being disregarding the interest of the Claimant. We find that the treatment of the Claimant at that meeting was entirely appropriate and as supportive and helpful as could be in the circumstances and was not because of the Claimant’s race or sexual orientation.[55]The Respondents were following the procedures as laid down in the safeguarding documentation and acting upon the advice of the North Wales Police regarding at this stage the information to be given to the Claimant. Email from Equality 4 Black Nurses (E4BN) on 26 August 2022[56]On 26 August 2022 Ms Neomi Bennett, Founder and CEO of Equality 4 Black Nurses, sent an email to Mrs Jane Owen and Miss Denise Williams (Respondents Workforce and Organisational Development) concerning the Claimant. In that email Ms Bennett sets out that Equality 4 Black Nurses was established to support, guide and represent black nurses employed within the health and social care sectors. The Claimant had signed a consent form as a member of E4BN and asked the organisation to represent and support him in relation to his suspension without being told the reason for it. There was a request for various documents. There was a request for adjournment of the hearing scheduled for 30 August 2022.[57]The Claimant said that he was not a union member and a document in the supplementary bundle at page 433 from the Royal College of Nursing dated 23 August 2022 confirms that the Claimant got in touch with the Royal College of Nursing who said that as the situation occurred outside of membership they could not offer him tailored advice, legal support or representation. It is also the case that on 22 August 2022 Bethan Rogers, Ward Manager, emailed Jane Owen to say that the Claimant had come to the ward and been advised to go home and await further guidance and he does not have a union.[58]Mrs Jane Owen sent a copy of Ms Bennett’s email to Miss Kay Hannigan, Head of Human Resources, and Denise Williams, Senior Human Resource Manager.[59]Miss Hannigan sent an email dated 30 August 2022 to Ms Bennett enclosing certain documents as requested and noted that the Claimant had not attended a review meeting in the morning and suggested that he make himself available as required. Miss Hannigan said they were not at liberty to disclose at this point the nature of the allegation as it may prejudice investigations carried out by external organisations. Miss Hannigan asked for the status of the attendance of Miss Bennett at the meeting because the Respondents policy allows employees to be represented by trade unions or accompanied by a workplace colleague.[60]Miss Bennett replied on 30 August 2022 saying that she understood that Equality 4 Black Nurses is not a recognised party under the Trust’s Trade Union Partnership Agreement and therefore unable to act on the Claimant’s behalf however they are currently applying for union status and will receive union credentials very soon. It was confirmed in submission by Miss Bennett that this continues to be an ongoing process and that they have not achieved union status at the present time.[61]Miss Bennett asked for discretion to be exercised and consideration to allow the organisation to support the Claimant in the capacity of a colleague. The point is made that relations with work colleagues had become fragmented and compromised due to allegations being made against the Claimant and that Miss Bennett believed that not having an independent person to support the Claimant during formal meetings will render him vulnerable and disadvantaged. There was a request for reasonable adjustments.[62]Mrs Jane Owen contacted the Claimant on 30 August 2022 to check if the Claimant was alright and why he did not attend the meeting. The Claimant replied he was ok, the Claimant queried about the emails sent by Miss Bennett and Mrs Owen replied that it was not agreed the meeting will be stepped up and it was a good opportunity to check that the Claimant was ok. A follow up letter was sent on 31 August 2022 from Mrs Owen to the Claimant concerning the meeting on 30 August 2022. Mrs Owen was told that he should not disclose any information in relation to the allegations made against the Claimant but simply to reiterate the suspension was a neutral act to protect all parties.[63]The position was left that the Respondents would send a new letter to the Claimant shortly with a new date and time. This was against the background that on 2 September 2022 a Section 5 meeting was due to take place to discuss the situation. This meeting did take place (position of trust strategy discussion meeting minutes page 229 to 233 of the bundle). The outcome of the meeting was that the police were not taking any further action against the Claimant. Patient A did not wish to engage and he was not making a complaint. It was noted that there was doubt on the credibility of patient A as it was stated “he was a prolific liar, falsely alleging serious offences had taken place”. The outcome of the discussion was that the Respondents would carry out an initial assessment to be undertaken with the Claimant and that the Claimant would be written to to inform him he is now the subject to the Section 5 person in a position of trust safeguarding process with the next meeting to be on 12 September 2022.[64]A letter was written to the Claimant on 2 September 2022 from Mrs Owen who said that she had tried to ring the Claimant and left a message so she was not writing to invite him to a meeting to discuss the concerns which had been raised as she was now in a position to do so. The meeting would include herself, Eleri Anderson (Matron) and Denise Williams from Human Resources (remotely). As per the Respondents guidance the Claimant was welcome to bring either a work colleague or a trade union representative with him to support if he felt this would help him. There is reference to support from Occupational Health and Wellbeing Service. Resignation of the Claimant – 2 September 2022[65]An email was sent from Equality 4 Black Nurses on 2 September 2022 at 6:56pm which attached the Claimant’s resignation letter. It was said it was disappointing that the organisations efforts to represent and support black nurses were ignored and refused. It seemed unreasonable to suspend the Claimant without reasonable grounds to do so and they believed that any allegations levied at him at this late stage will be false and trumped up. It is said that racism in the NHS is a problem for us all and we are hoping that the Respondents management team use this opportunity to take a long hard look at the culture of the organisation and ask themselves if the working environment is conducive to supporting and nurturing the skills and concerns of black and Asian nurses.[66]The letter of resignation alleging constructive dismissal is on page 234 to 235 of the bundle. The resignation letter says that due to the racist and hostile environment to which he has been subjected the Claimant had no choice but to send the resignation because of the ongoing racist and discriminatory conduct towards him. He was suspended for 14 days without a reason and believes this treatment is bullying, harassment and victimisation on the grounds of his race and ethnicity. After dealing with a sequence of events from 19 August 2022 the letter goes on to deal with specific matters that occurred before that date and says the last straw was when he was denied the opportunity of reasonable adjustments in that his advocate from Equality 4 Black Nurses was denied the opportunity to support him and the Respondents refused to provide him with reasons for suspending him. The treatment of him had resulted in emotional and physical stress to the point which his doctors deemed him unfit to work with work related stress. Working in such a hostile and high risk environment it is said had had a damaging effect on his health and wellbeing and he now considers his working position to be untenable and his working conditions intolerable leaving him no option but to resign in response to the Respondents breach.[67]On 5 September 2022 Mrs Jane Owen telephoned the Claimant to check he was ok and to see if he could make the meeting scheduled that day. He replied to say he was ok and then hung up.[68]Apart from the strategy meeting on 5 September 2022 a follow up strategy meeting under Section 5 was to be reconvened on 12 September 2022 to feed back to the teams.[69]Miss Anne-Marie Rowlands had contacted the Nurses and Midwifery Council Employee Link Service on 30 August 2022, discussed on 31 August 2022 details of alleged concerns, employment status and action taken to safeguard patients and manage risks. The Nursing and Midwifery Council recommended to await the outcome of the Section 5 meeting planned for 2 September 2022 and an update after the Section 5 meeting. Mrs Anne-Marie Rolands contacted the Nursing and Midwifery Council on 5 September and updated them with the outcome of the Section 5 strategy meeting and it was agreed their would be a further telephone call on 14 September 2022 once the internal Respondent fact finding had been completed and the Section 5 strategy meeting had occurred on 12 September 2022. However given the Claimant’s resignation Anne-Marie Rowlands contacted the Nursing and Midwifery Council again to discuss the matter further.[70]In an email of 7 September 2022 Mrs Anne-Marie Rowlands informed members of the Respondents Safeguarding team that following a Nursing and Midwifery Council call on that day that the Nursing and Midwifery Council agreed due to allegations and resignation a referral should occur which she would progress as soon as possible once she had received the referral letter.[71]The referral letter was drafted by Mrs Jane Owen who sent it to Mrs AnneMarie Rowlands for consideration. It sets out factually what had been the position and refers to the resignation of the Claimant but that Local Authority are writing to the Claimant to inform him that the Section 5 process will continue despite resignation and that there would be a cooling off period. This is in reference to the fact that by an email of 8 September 2022 the Claimant was invited by Mrs Jane Owen to reflect upon his decision to resign, to discuss the situation with her before reaching a final decision. Should they fail to hear from the Claimant by close of business on 16 September then there would be a process of a leaving form for the Claimant which would terminate his contract of employment as originally requested. Referral to the Nursing and Midwifery Council – 12 September 2022[72]The referral is set out on pages 257 to 266 of the bundle. It sets out a factual account of that being alleged. Mrs Anne-Marie Rowlands said that the Claimant had been referred on the basis of having resigned and this was not a punishment and there was no pattern of referring black nurses to the Nursing and Midwifery Council. There was reference to the Codes of Practice and that it was not Mrs Rowlands responsibility or role to investigate. Mrs Rowlands said that all colleagues are treated with dignity and respect but that if they resign there are unmanaged risks and the referral was not based on race or sexual orientation and she did not know of the Claimant’s race or sexual orientation. It was a duty to raise such matters with the Nursing and Midwifery Council.[73]Reference was made particularly to the guidance given by the Nursing and Midwifery Council set out on pages 447 to 448 of the bundle. In a section entitled “overview” it is said that there are some examples where the Respondents might not be able to effectively manage concerns and may need to make a referral to the Nursing and Midwifery Council namely “the individual has resigned or otherwise disengaged as a direct response to questions about their practice or being informed of the investigation without taking action to fully address the concerns”.[74]This is the section that Mrs Anne-Marie Rowlands had in mind together with Mrs Owen and we accept their evidence that they were following this guidance in making the referral. Referral was made because of the resignation of the Claimant and the inability of the Respondents to further process the matter with no involvement from the Claimant. It was not based upon any considerations of race or sexual orientation.[75]As Mrs Anne-Marie Rowlands stated only the Nursing and Midwifery Council can take out any sanctions in respect of any nurse and the Respondents in the circumstances could not block the nurse from continuing to practice in any other way if it was considered to be appropriate to do so.[76]On 20 September 2022 Miss Judy Edwards, Deputy Team Manager, Adult Safeguarding Team of Denbighshire County Council wrote to the Claimant to say that there had been a professional strategy meeting under Section 5 of the Wales Safeguarding Procedures 2019 and that the meeting on 20 September 2022 the conclusion that on the balance of probability the allegation was unsubstantiated and there was insufficient evidence to prove or disprove and the outcome does not imply guilt or innocence. There was a recommendation that the Respondents consider referrals to the appropriate regulatory bodies.[77]There was no contact from the Claimant or on his behalf about reconsideration of the resignation and consequently the Respondents wrote to the Claimant on 21 September 2022 to confirm that they accepted his resignation effective from 2 September 2022. Outcome of Nursing and Midwifery Council Referral[78]By email dated 2 November 2022 the Nursing and Midwifery Council wrote to Mrs Anne-Marie Rowlands to say that they have looked into concerns about the Claimant and decided it is not something they would be investigating further at this time. They used a screening process and decided that the case did not go past the stage it was decided to do something they should be involved in. Submissions[79]Both the Claimant’s representative and the Respondents representative made oral submissions as well as providing the Tribunal with written submissions.[80]It was submitted on behalf of the Claimant that this claim shows racial discrimination, retaliation and unjust treatment, the Claimant experiencing exclusion and forced isolation and career destroying actions by the Respondents and not a due process. There was a mosaic of exclusion and this institution, the Respondents, did not see or protect or care to understand cultural issues involving black employees. At its core there was a misuse of policies with no investigation and a failure to consider the trauma and illness that would be caused. The Claimant’s experience was not isolated and reference was made to a parallel case it was said of Florence Maina. Florence Maina resigned from the employment of the Respondents in circumstances which were said to be similar to that of the Claimant having suffered institutional discrimination.[81]The Claimant brings claims of direct race discrimination, harassment, victimisation, breach of public sector equality duty, constructive unfair dismissal, and breach of privacy. In particular a pattern of racially discriminatory exclusion and escalation by the Respondent involves a referral to the Nursing and Midwifery Council without due process or context, the refusal to accommodate the need for culturally appropriate support by Equality 4 Black Nurses. There had been no chance for the Claimant to respond and the lack of reviews by the Respondents self-awareness of challenges faced by black employees shows failure to act or follow up on matters such there was organisational failures. There was an established pattern against black nurses and matters were escalated without evidence. Black nurses had been referred to the Nursing and Midwifery Council early on both outcomes showed no serious misconduct. There was false narratives given, exclusion of material facts. There was unconscious bias and systematic neglect. Reference was made to some statistical evidence about referrals to the Nursing and Midwifery Council as contained in the bundle pages 389 to 392. They show protection of white British nurses. Reference was made to this as being indirect discrimination with 61 referrals between August 2021 and August 2022 with 12 referrals of BAME staff initiated by the Respondents. Particular reference was made to a case involving a white female nurse who went through disciplinary procedures before being dismissed. Racial assumptions because of it being an allegation against a black man and reference was made to document “ambition for change”, the document issued by the Nursing and Midwifery Council.[82]Incidents which had occurred before 2022 show evidence of blame redirection the Claimant being asked to apologise and suffering psychologically as a result. It was cumulative stress that led to his resignation and there was no action being taken to protect him. There had been racial and sexuality discrimination by his public outing. He had been suspended with no explanation and no support.[83]There was reference to a number of reported cases as well as the public sector duty.[84]The Respondents submitted that the List of Issues as set out in two Case Management Hearings did not include any claim for indirect discrimination for which the Respondents had no opportunity to consider in evidence and so no explanation is required in relation to that. That claim should be dismissed. However, the Claimant’s submissions are flawed and inaccurate as there is no evidence of racial motivation or sexual orientation bias on the evidence. There can be no basis for criticism of the Respondents witnesses. There is a fundamental difference between the case of the white female nurse where there was an internal investigation and with the Claimant who chose to resign.[85]There was no fundamental breach of contract to justify constructive dismissal. None of the allegations would amount to a breach of the implied term of trust and confidence whether individually or collectively. The Respondents were obliged to follow their procedures due to the nature of allegations made including not informing him at the early stage of the substance of the allegations until a safeguarding meeting had taken place with the police and Local Authority. It was unreasonable and premature of the Claimant to resign on 2 September 2022. The Claimant should have waited and followed process and had he done so he would have been informed of the substance of the allegations by 5 September 2022 only some 12 working days after the complaint was first raised with Mrs Jane Owen. His refusing to engage in a cooling off period to reflect upon his resignation when it was offered to him and his unwillingness to take part in any internal investigation at all is indicative of his reasonable attitude to a very serious situation.[86]In relation to alleged to the public sector duty and privacy there is no private law cause of action and the Tribunal has no jurisdiction in relation to these matters.[87]In relation to the evidence relating to Florence Maina, who did not give evidence, the Respondents suggest that it was never intended that Ms Maina would give evidence and that reliance made by the Claimant’s representative upon Ms Maina’s case show that referral to the Nursing and Midwifery Council was made following her resignation when she failed to engage in an action plan that was put in place to support and educate Ms Maina after a number of concerns with regard to patient safety had arisen. Reference to documents and articles such as “disproportionality in NHS disciplinary proceedings” (page 490 to 493) does not provide a basis for raising a prima-facie case of discrimination on the facts of this case based on the evidence the Tribunal has heard. Likewise the Nursing and Midwifery Council “ambitions for change” report although highlights that there is a disproportionate number of black professional referrals does not support the Claimant’s assertions in this case that he was singled out or treated less favourably that his white counterparts. The evidence produced by Miss Hannigan regarding the ethnicity of those referred to the Nursing and Midwifery Council between January 2021 and December 2023 by the Respondent perhaps demonstrates the opposite. It is not necessarily determinative either way since some included in the referrals had not declared their ethnicity. It cannot be proper comparison on the statistics which were relied upon by the Claimant regarding referrals.[88]The Respondents submit that the claims of direct discrimination and harassment, based on the same facts, are not supported by any of the evidence and it cannot sensibly be argued that any of the actions taken were related to the Claimant’s race and/or sexual orientation.[89]In relation to victimisation it is accepted on the letter of 26 August 2022 from Equality 4 Black Nurses constitutes a protected act for the purposes of Section 27 of the Equality Act but it does not however accept the Claimant was subject to any detriments as a result of the protected act. The procedure followed was that under Section 5 by referral to the Local Authority and police of the allegations made. There was no evidence to support the conclusion that it was done because of the letter relied upon as a protected act. Referral was made on advice from the Nursing and Midwifery Council that it should be as the Claimant had resigned and had refused to engage with the Respondent in the internal investigation that still needed to take place.
The Law
[90]Direct discrimination is defined in Section 13 of the Equality Act 2010 as “(1) a person(a) (A) discriminates against another(b) (B) if because of a protected characteristic, (A) treats (B) less favourably that (A) treats or would treat others… (5) If the protected characteristic is race, less favourable treatment includes segregating (B) from others”. Section 23 of the Equality Act 2010 is headed “Comparison by reference to circumstances”. It states, “(1) on a comparison of cases for the purposes of Section 13, 14, 19 or 19(a) there must be no material difference between the circumstances relating to each case”.[91]Section 136 of the Equality Act 2010 says, “(1) this section applies to any proceedings relating to a contravention of this Act. (2) 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. (3) but sub-section (2) does not apply if (A) shows that (A) did not contravene the provision.”[92]Section 26 of the Equality Act 2010 is headed “Harassment”. “By (1) a person (A) harasses another (B) if – (a) (A) engages in unwanted conduct related to a relevant protected characteristic, and (b) 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).” “By sub-section (4) in deciding whether conduct has the effect referred to in sub-section (1)(b) each of the following must be taken into account – (a) the perception of (B) (b) the other circumstances of the case (c) whether it is reasonable for the conduct to have that effect.” Both parties referred to the case of Pemberton -v- Inward [2018] ICR 1291 where Lord Justice Underhill said “in order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the prescribed effects under subparagraph (1)(b), a Tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives himself to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). Also of course taking into account all the circumstances (sub-section (4)(b). The relevance of the subjective question is that if the Claimant does not perceive their dignity to have been violated or an adverse environment created then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the Claimant’s dignity or creating an adverse environment for him or her then it should not be found to have done so”. The Respondents referred further to the case of Tees Esk and Wear Valleys NHS Foundation Trust -v- Aslam [2020] IRLR 495 put the proposition that the Tribunal must draw upon all the evidence before it to establish if the unwanted and offensive conduct is related to the relevant characteristic. Both parties referred to the case of Richmond Pharmacology -v- Dhaliwal [2009] ICR 724 where there were 3 elements of an harassment claim identified by Mr Justice Underhill namely unwanted conduct; that has the prescribed purpose or effect; and which relates to a relevant protected characteristic. The Tribunal should specifically address each element in turn whilst acknowledging that in some cases there would be considerable overlap between the elements.[93]Section 27 of the Equality Act 2010 is headed “Victimisation”. Sub-section (1) says “a person(a) (A) victimises another person(b) (B) if (A) subjects (B) to a detriment because – (a) (B) does a protected act or (b) (A) believes that (B) has done or may do a protected act. By sub-section (2) each of the following is a protected act (a) bringing proceedings under this act (b) giving evidence or information in connection with proceedings under this act(c) doing any other thing for the purposes of or in connection with this act and(d) making an allegation (whether or not express) that (A) or another person has contravened this act. Detriment is widely defined and the courts have considered the question is both objective and subjective and must be considered from the Claimant’s point of view but his perception of it must be objectively reasonable in all the circumstances. Both parties refer to the case of Derbyshire -v- St Helens Metropolitan Borough Council ICR page 841.[94]Section 149 of the Equality Act 2010 is headed “Public Sector Equality Duty”. By sub-section (1) a public authority must in the exercise of its functions have due regard to the need to –(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this act(b) advance equality or opportunity between persons who share relevant protected characteristic and persons who do not share it. Although referred to in the Claimant’s written submissions and in the oral submissions it is right to set reference was made to the case of R (Brown) -v- The Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin). The Claimant also referred to data protection and in particular Article 9 of the UK GDPR which prohibits processing of special category data for example sexual orientation without a lawful basis and sufficient safeguards. Reference was made to the case of Ali -v- The Chief Constable of Bedfordshire Police [2022] EAT. This was also referred to as breach of privacy. However it was clarified in the Claimant’s oral submissions that the claim regarding breach of privacy was not a freestanding claim but is related to harassment etc. and those matters.[95]In relation to constructive unfair dismissal Section 95 of the Employment Rights Act 1996 says “sub-section (1) for the purposes of this part an employee is dismissed by his employer if (and subject to sub-section (2) if and only if) –(a) the contract under which he is employed is terminated by the employer (whether with or without notice)(b) he is employed under a limited term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract or(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employers conduct.[96]Section 98 says that sub-section (1) in determining for the purposes of this part whether 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 sub-section (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) reason falls within this sub-section if it – (a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed to do by the employer to do (b) relates to the conduct of the employee…. Sub-section (4) says “where the employer has fulfilled the requirements of sub-section (1) the determination of the question whether dismissal is fair or unfair (having regard to the reason shown by the employer) – a delay depends on whether the circumstances (including the size and administrative resources of the employers undertaking) the employer 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 substantial merits of the case.[97]The case of Malik and Mahmud -v- The Bank of Credit and Commerce International SA [1997] IRLR 462 is Authority for the proposition that the employer should not without reasonable or proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. There was also reference by the Claimant in submission to the case of Western Excavating (ECC) Limited -vSharp [1978] QB 761 and Clarke -v- Northumberland CC [1995] IRLR 642. Finally in relation to limitation which was raised by the Respondents in respect of some claims of the discrimination Section 123 Equality Act 2010 says that subject to Section 140B proceedings on a complaint within Section 120 may not be brought after the end(a) the period of 3 months starting with the date of the act to which the complaint relates or(b) such other period as the Employment Tribunal thinks just and equitable. By sub-section (3) for the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period (b) failure to do something is to be treated as occurring when the person in question decided on it. The case of Hendricks -v- Commissioner of the Police for the Metropolis [2003] IRLR page 96 Lord Justice Mummery said “the burden is on the Claimant to prove either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”. I regard this as a legally more precise way of characterising a case than the expressions such as (institutionalised racism) (a prevailing way of life) a “generalised policy of discrimination” or “climate” or “culture” or “unlawful discrimination”….. The Claimant may not succeed in proving that the alleged incidents actually occurred or not or that if they did they add up to more than isolated unconnected acts of less favourable treatment by different people in different places over a long period and that there was no “act extending over a period” for which the Commissioner can be held legally responsible as a result of what he has done, or omitted to do, in the direction and control of the service in matters of race and sex discrimination….. The question is whether that is “an act extending over a period” as extinct from a succession of unconnected or isolated specific acts, for which time would begin to run on the date when each specific act was committed”. As to whether time should be extended reference was made to the case of Robertson -v- Bexley Community Centre [2003] IRLR 434 and the case of British Coal Corporation -v- Keeble [1997] IRLR 336 and Abertawe Bro Morgannwg University Local Health Board -v- Morgan [2018] ICR 1194. The Tribunal has the wide discretion with no exhaustive list of factors to consider recognising that the length and reasons of the delay and the prejudice the parties would almost always be relevant.[98]Section 19 of the Equality Act 2010 defines indirect discrimination. It states “(1) a person(a) (A) discriminates against another(b) (B) if (A) applies to (B) a provision, criteria or practice which is discriminatory in relation to a relevant protected characteristic of (B)’s. Sub-section (2) says “for the purposes of sub-section (1) a provision criteria or practice is discriminatory in relation to a relevant protected characteristic of (B)’s if – (a) (A) applies, or would apply, it to persons with whom (B) does not share the characteristic (b) it puts, or would put, persons with whom (B) shares the characteristics of a particular disadvantage when compared with persons with whom (B) does not share it(c) it puts, or would put, (B) at that disadvantage and(d) (A) cannot show it to be a proportionate means of achieving a legitimate aim.
Conclusions
[99]In relation to the incidents relied upon as direct race and sexual orientation discrimination prior to August 2022, which also relied upon as harassment, we have already set out our findings in relation to the incidents in 2020, 2021, and March 2022. In short we do not find that the Claimant was targeted in a way that was discriminatory or the actions taken by the Respondents were discriminatory as alleged because of the Claimant’s race or sexual orientation. Neither were they harassment. We accept the Respondents witnesses evidence regarding these incidents being non-discriminatory and that the Claimant was supported and was a valuable member of the team of nurses.[100]With regard to the events following the Claimant’s suspension in August 2022 we find that the Respondents followed the All Wales Safeguarding Policies as well as the North Wales Local Policies in their response to the allegations that had been made by patient A. We find that Mr Dolphin was well familiar with the procedure and professionally applied the procedures in his conduct of the matter. It was not the role of Mr Dolphin to investigate the allegation but rather to report the matter to the relevant authorities, which included the police and Local Authority. The Local Authority chairing the safeguarding procedure. We accept the evidence of Mr Dolphin that he did not believe there was a stereotype of a black man showing aggression and that influenced his dealing with the allegation. Mr Dolphin said he stuck to the process which was non-discriminatory and there was no bias in the investigation. He did not know who the Claimant was or the Claimant’s sexuality. In respect of the information given by patient A Mr Dolphin stated that patient A had referred to other consensual sexual activities with staff but these other staff names were not possible to be identified from the information so no further action was taken in relation to them. Mr Dolphin reviewed the DATIX referral which had been completed by the Alcohol Liaison Nurse, Mr David Pepper, but did not have any detail of any psychiatric assessment. However the information triggered concern about whether an adult at risk had experienced abuse and as a patient in hospital patient A would be particularly vulnerable. Mr Dolphin did not know about the particular Grindr App when he first looked at the DATIX but later that information became known to him. There was no investigation of reference by patient A to others because they could not be identified.[101]Mr Dolphin accepted that he had not engaged with specific training on racial bias but emphasised that his duty under safeguarding is non-discriminatory. There was no investigation because it was not the purpose at this stage of the safeguarding procedure. There was no investigation in this case because the Claimant resigned and therefore posed an unknown risk which had not been properly explored and Mr Dolphin said they were unable to engage in the next step. We accept the evidence of Mr Dolphin that he carried out his responsibilities in a non-discriminatory manner based on the information which he had received and had been given, bearing in mind that it was not only patient A who had given information but also patient B.[102]For the avoidance of doubt we do not consider that the All Wales Safeguarding Policy or the North Wales Safeguarding Policy have contained within them any institutional bias because of race or sexual orientation. The procedures are non-discriminatory in nature.[103]We do not accept that the circulation of information on DATIX was unnecessary and a breach of the Claimant’s privacy rights. It was necessary for the Respondents to notify the recipients of emails to the allegation which had been made, without editing it in any way, so that full information would be provided to the individuals. Whilst reference to matters such as Grindr App may have been embarrassing or uncomfortable for the Claimant, the Respondents were fulfilling their duties under the safeguarding procedures to give an accurate and as full a picture as possible of the situation which had been put forward by patient A. We reject the suggestion that this contravened any rights to privacy that the Claimant had.[104]We have considered evidence which was given in documentation and a Freedom of Information Request from the Claimant’s representative regarding the number of nurses referred to the Nursing and Midwifery Council from the Respondents. In an email of 9 April 2025 information was provided which showed that the number of referrals for BAME staff was 20%; white referrals were 49-80%; making a total of 61 being 100%. This information is relied upon by the Respondents namely a 20% BAME referral rate since BAME nurses make up less than 20% of the workforce and supports the existence of over referral and potential indirect racial discrimination.[105]On pages 389 to 397 of the supplementary bundle are tables compiled regarding referrals which involved the Respondents. It can be seen that the referral source can be either the Respondents themselves, or as can be seen that most of the referrals have been made by members of the public. Miss Kay Hannigan said that of course the Respondents cannot stop the public making referrals or complaints. The Respondents try to track the referrals. However Miss Hannigan emphasised that in relation to ethnicity they rely upon the health declaration of individuals in relation to that. Miss Hannigan said that in terms of referrals that the Respondent made to the Nursing and Midwifery Council in 2021 the Respondent made 9 referrals, 5 of these were British, 1 was Polish and 3 are unknown. In 2022 the Respondent made 15 referrals, 10 of these were British, 1 was Kenyan that being the Claimant and 4 are unknown. One of these 4 unknowns included Miss Maina. In 2023 the Respondent made 6 referrals, 4 of these were British and 2 were unknown. The majority of referrals made by the Respondent related to British nurses or midwives. However Miss Hannigan said that race was not a factor taken into account when making a referral as each Nursing and Midwifery Council referral is undertaken based upon the facts and specific circumstances of each nurse or midwife having regard to what local measures they can put in place whilst ensuring patients are protected and patient care is not compromised. Each referral is made by liaising with the Nursing and Midwifery Council directly via their employer link service and any referral made is completed upon the Nursing and Midwifery Council’s recommendation. This process is the same for each nurse regardless of their race. We accept the evidence of Miss Hannigan.[106]The breakdown of the staff who stated that they were white in June 2022 were 83.3%, 2% were black or black British, 3.3% were Asian or Asian/black, 2.2% were Filipino, 1.7% did not choose to declare and 6.6% were unknown.[107]The claim of indirect discrimination based on race or sexual orientation was not part of the List of Issues as determined by the Tribunal. However the information provided does not on the face of it indicate that there was any indirect discrimination at all. Indeed the analysis of statistics support the evidence of the Respondents regarding who made the referral, and how many referrals were made by themselves and the circumstances in which they considered it appropriate for there to be a referral in any event. The statistics are not susceptible to there being able to be made a proper inference of any indirect discrimination at all. We reject the claim of indirect discrimination as a matter of principle because it was not part of the case as was began and proceeded until a very late stage in 2025 and no permission was given for an amendment to that effect but moreover there is no evidence statistically or otherwise which would support such a claim. We therefore have no hesitation in rejecting such a claim. It is no basis or any help in consideration of the claims which we had before us regarding direct race or sexual orientation discrimination or harassment or victimisation.[108]In June 2024 during the first part of the hearing of this case the Claimant made an application to introduce new witness evidence who it is said came forward on 9 June 2024 namely Miss Florence Maina. After hearing representations from both parties the Tribunal allowed this evidence to be admitted. However as set out above Miss Maina did not give evidence to the Tribunal in this case. The background to Miss Maina’s evidence was that she had made a claim to the Employment Tribunal highlighting a pattern of discrimination, harassment and unfair blame targeted at herself and minority nurses. This claim was withdrawn by Miss Maina on 12 September 2023 and therefore there were no findings by the Tribunal. Miss Maina was represented by the Claimant’s representative at that time.[109]The Tribunal heard an amount of evidence from Respondents witnesses regarding allegations which had been made by Miss Maina and there was extensive cross-examination of the Respondents witnesses regarding these allegations.[110]Miss Caroline Lidford was a Professional Development Project Lead Nurse and Deputy Ward Manager on ward 3 at the Glan Clwyd Hospital, North Wales, and gave evidence that ward 3 was very multi-cultural and diverse. Miss Lidford recalled that Miss Maina had a number of personality clashes with colleagues and she found it difficult to have constructive discussions with Miss Maina. Miss Lidford had approached a Ward Manager, Miss Victoria Stafford about an incident in July 2021 regarding Miss Maina not being willing to assist with cleaning a patient. Miss Lidford witnessed an incident when Miss Maina pushed past a healthcare support worker who responded “you are not a princess and need to help with your patients”. Miss Lidford also recalled an incident that occurred in September 2021 regarding a correct dose of insulin given to a patient. Miss Lidford said this was a matter that had to be discussed with the individual regardless of their role or race as it is a healthcare setting and any mistake could have serious consequences. The focus was on learning, if a training need was identified they would support that member. Miss Deborah Stones worked as a Practice Development Nurse and said that she met Miss Maina in November 2021 and the purpose was to assist and support Miss Maina because there were concerns about errors which had occurred. There was a further meeting in January 2022 and a formal action plan was formulated for Miss Maina. There had been training sessions arranged and meetings but Miss Maina was unwell and commenced sickness absence in about April 2022.[111]On 8 June 2022 an email was received from Equality 4 Black Nurses which enclosed Miss Maina’s letter of resignation. The letter said the resignation was due to the racist and hostile environment which she had been subjected to and that she had been subjected to hostility from work colleagues on a regular basis and embarrassed frequently via a workplace WhatsApp group. The last straw was when senior white colleagues escalated the harassment and attempted to micromanage her from her role as a registered nurse by implementing a performance development plan without justification. Miss Maina said she was denied the opportunity of reasonable adjustments in that her advocate from E4BN was denied the opportunity to support her through disciplinary actions against her.[112]Miss Victoria Stafford, Vascular Advanced Nurse Practitioner at Glan Clwyd Hospital gave evidence about a number of interactions that she had had with Miss Maina and during conversations Miss Maina had a mix of responses sometimes she would be upset and sometimes she would plead ignorance or sometimes she would come across as if she had not understood why the concern had been raised. In January 2022 the Respondent decided to progress Miss Maina down the Capability Policy as additional informal support measures had not been successful and there were concerns that this could place patients at risk. The Practice Development Nurse, Deborah Stone was to offer her support and would also work with a mentor.[113]The Respondents made a referral to the Nursing and Midwifery Council concerning Miss Maina. The referral included the concerns regarding incidents being incident 1, not checking a medication chart and dispensing incorrect controlled medication to the incorrect patient luckily the second checker realised that the medication chart was not for the patient in question; incident 2 which was not escalating a sick patient with a high NEWS did not prioritise the patient no escalation to medical team; incident 3 being a patient awaiting theatre for surgery required a sliding scale from long acting insulin not given as per description.[114]Mrs Anne-Marie Rowlands acknowledged that following an Employment Tribunal claim where the Claimant had indicated that the Nursing and Midwifery Council were not notified of her claims of bullying and harassment and staffing challenges on the ward where she worked and had not been included in the Nursing and Midwifery Council referral, Mrs Anne-Marie Rowlands sent further information to the Nursing and Midwifery Council.[115]On 5 April 2023 the Nursing and Midwifery Council replied to confirm the investigation was completed and on 23 August 2023 the Nursing and Midwifery Council advised there was a case to answer against Miss Maina and she agreed to some undertakings to address the issues in her current practice.[116]We accept the evidence of the Respondents witnesses regarding their involvement with Miss Maina and that they dealt with concerns which were genuine concerns about Miss Maina’s competence. Hence the action plan which was formulated to assist Miss Maina. We reject the submissions made on behalf of the Claimant that Miss Maina was subjected to bullying and racist discriminatory behaviour in the way alleged.[117]Part of the case put forward by the Claimant was that Miss Maina’s case and the Claimant’s case are similar which showed a pattern of discriminatory behaviour by the Respondents against black nurses. One of the common features of both Miss Maina and the Claimant’s case is that both resigned and left the Respondents employment with unresolved questions which had been raised concerning their practice as nurses. In the case of Miss Maina there were issues regarding competency and in the case of the Claimant an allegation of serious misconduct which had not been the subject of internal disciplinary or investigative processes. In both cases we find that the Respondents applied safeguarding policies which required them to report matters to the Nursing and Midwifery Council for determination.[118]The comparator in the case of the Claimant was that of a white female nurse who was accused of serious misconduct of a sexual nature with a patient, who was suspended from her role with the Respondents during investigations, and engaged in the internal processes and following a disciplinary panel hearing was dismissed. The Nursing and Midwifery Council were contacted in June 2022 with a referral sent the same day in line with their advice to refer. On 5 July 2022 the Nursing and Midwifery Council imposed an 18 month interim suspension order. In June 2023 the Nursing and Midwifery Council notified the Health Board, the Respondents of the fitness to practice committee outcome that this individual had been struck off the register.[119]There is a clear distinction between the case of the white female nurse who had been subject to the disciplinary processes and an outcome after investigation arrived at by the Respondents, and the two cases of the Claimant and Miss Maina where both had resigned before the completion of internal processes. We do not consider that the comparator was an appropriate comparator since there are material differences between the circumstances relating to the white nurse comparator case and that of the Claimant.[120]The Claimant says that the Tribunal should take a broad picture of the situation affecting himself, and also that of Miss Maina, in coming to a conclusion whether there has been discrimination on the grounds of race or sexual orientation and/or harassment and/or victimisation. Whilst it is necessary to look at all the circumstances of the case, and draw such inferences as may be appropriate from primary facts, it is nevertheless essential that the Tribunal find facts upon which it is proper to draw inferences. On the facts as we find them there are no proper inferences that can be drawn that there has been discrimination on the ground of race or sexual orientation in the case of the Claimant. Nor for the avoidance of doubt in the case of Miss Maina. The broad picture is one of the Respondents properly applying processes to safeguard patients, staff and generally those that require safeguarding in applying the policies which are clearly set out and the reasons and steps to be taken in relation to those policies. We do not consider the fact that the Respondents refused to allow the Claimant’s representative to participate and support the Claimant to be discriminatory or unreasonable in the circumstances. Their policy clearly allows a workplace colleague or recognised union to support and represent any member of staff, whatever their race or sexual orientation. It is not just the Claimant’s representatives organisation which is not allowed to participate in the way that they sought but rather we accept the evidence of Miss Hannigan that it is any other third party organisation which is not allowed to support or participate. On a broad picture we accept that the Respondents provided opportunities for support through Occupational Health or through their own internal organisation which for whatever reason the Claimant chose not to access. It was a matter for the Claimant about this matter. Whilst we accept it was undoubtedly a stressful time and a concerning time for the Claimant it is always likely to be of that nature when allegations are raised which are of a serious nature but which require to be not ignored but taken forward in an appropriate way in accordance with policies.[121]The practice of the Respondents restricting the accompanying of a fellow worker or trade union representative is in line with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Paragraph 4.17 which is in relation to disciplinary meeting (which was not the nature of the meetings that the Claimant was asked to attend) contains reference to that statutory right.[122]One of the matters which is complained of as evidence of discriminatory treatment is the referral of the Claimant to the police and/or the Home Office where a person is no longer employed and maybe an impact on the visa. There was also repayment of any relocation costs which as a contractual matter and which the Respondents would be expected to seek some reimbursement. None of these matters were done from any viewpoint of retaliation or as a result of allegations which were protected acts.[123]As indicated previously the Claimant made a protected act by complaining of racial discrimination in his resignation, and the sequence shows that there was thereafter a referral to the Nursing and Midwifery Council. The critical question is whether there was any connection between the two. We find there was no connection between the two. There was no victimisation by the Respondents because the Claimant had made a protected act. We have accepted the evidence of the Respondents that they referred the matter to the Nursing and Midwifery Council because it was their duty to do so in the circumstances where matters had not been resolved and there were issues to be investigated and determined. Therefore we dismiss the claim of victimisation.[124]The Claimant has put a claim in alleging breach of the public sector equality duty under Section 149 of the Equality Act 2010. However Section 156 of the Equality Act 2010 says “a failure in respect of the performance of a duty imposed by or under this chapter does not confer a cause of action at private law”. Therefore there is no cause of action for any alleged breach. But we accept the evidence of Miss Hannigan that every policy the Respondents have is subject to an equality impact assessment and there is no evidence upon which any failure of this public sector equality duty could be found.[125]It was accepted in submission by the Claimant’s representative that there is no cause of action in the Employment Tribunal regarding any data protection matters, such as reference to the Grindr App in the DATIX referral and circulation to individuals named there. It is of course correct that there was no cause of action on a data protection basis. The Tribunal has no jurisdiction in relation to these matters. Moreover we have set out our findings in relation to the appropriateness of reference to these matters above.[126]We have considered carefully all the submissions made by the parties, and in particular the submissions made on behalf of the Claimant that we should find the claims of discrimination, harassment and victimisation proven but we reject the submissions.[127]The Claimant has claimed constructive unfair dismissal on the basis of a fundamental breach of contract and in particular a last straw in the way that the Respondents dealt with his suspension and lack of information about the reasons for his suspension which led him to the conclusions as set out in his resignation letter. We do not consider that any of the earlier incidents pre August 2022 are any breaches of contract by the Respondents or that the way the Respondents dealt with the Claimant from August 2022 constituted together or individually any fundamental breach of contract. There were not assumptions on the part of the Respondents, or any denial of support, or invasive data breaches or unfair escalation of the case as alleged by the Claimant. On the contrary the Respondents dealt with the Claimant fairly and offered to meet the Claimant to explain the position on a timescale that was relatively short from the time of suspension up to the time of the resignation letter given by the Claimant.[128]We find there was no dismissal within the meaning of Section 95 of the Employment Rights Act 1996. The claim of constructive unfair dismissal is dismissed.[129]It is the unanimous Judgment of the Tribunal that all the claims made by the Claimant are dismissed.