Mrs A Ojeniyi v Kent Community Health NHS Foundation Trust: 2302877/2023

EMPLOYMENT TRIBUNALS

Case No 2302877/2023

Between

Mrs A OjeniyiClaimant

Kent Community Health NHS Foundation TrustRespondent

Date 30 July 2025

JUDGMENT

The Claimant’s application dated 24 July 2025 for reconsideration of the Judgment sent to the parties on 11 July 2025 is refused.

REASONS

[1]On 24 July 2025, the Claimant wrote to the Tribunal requesting a reconsideration of the Tribunal’s judgment on her claim, which was sent to the parties on 11 July 2025.

[2]In accordance with rules 70(1) and (2) of the Employment Tribunal Procedure Rules 2024, I have carefully considered the Judgment and Reasons, the application from the Claimant's representative and the cases to which she refers, and I have concluded that there is no reasonable prospect of the original decision being varied or revoked.

[3]I set out my brief reasons for this conclusion in respect of each ground raised by the Claimant. (1) Misapplication of Burden of Proof (s. 136 Equality Act 2010)

[4]In summary, the Claimant’s complaint is that, having accepted several key factual matters, the ET made no finding as to whether the Claimant had established a prima facie case of discrimination as required to shift the burden of proof under s. 136 EqA 2010, instead impermissibly focusing on the employer’s rationale.

[5]In support of this point, the Claimant quotes from paragraph 143 of the judgment, where the ET held “Even had the burden of proof shifted...the explanations provided were in no sense whatsoever related to race.”

[6]The Claimant’s quotation omits paragraph 142 and the first part of paragraph 143 (which relate to allegations 2.1.1.2 and 2.1.1.7, which can be summarised as alleging that Mrs Collard had made false claims that individuals in the department had been complaining about the Claimant, and failed to provide examples of the same). Read as a whole, the paragraphs make it clear that the ET first considered whether the burden of proof had shifted, and found that it had not:142. Considering whether there are facts from which we could conclude (in the absence of an adequate explanation) that this treatment was because of the Claimant’s race, we accepted the Respondent’s evidence that colleagues had raised concerns about the Claimant (see paragraphs 29 – 32 above). We also accepted Mrs Collard’s evidence that she raised these concerns in the meeting because she was concerned about the Claimant’s capacity to prove her competence in English and Maths, complete her dissertation and deal with the performance issues that were arising. Having heard evidence from Mrs Collard, we find that the reason why no examples were given in this meeting is that, as we have found at paragraph 34 above, Mrs Collard had not anticipated speaking to the Claimant about her performance concerns that day.

143. Considering these allegations alone, we can see no facts from which we could draw an inference that the treatment of which the Claimant complains was because of her race. Mrs Collard gave evidence, which we accepted, that she had put in place a PIP on three other occasions since 2011, and those three other members of staff had been white. We have accepted that there were genuine performance concerns about the Claimant. Even had the burden of proof shifted to the Respondent, we are satisfied that the explanations provided for the treatment are in no sense whatsoever related to race.

[7]There is, in any event, long-standing authority confirming that a Tribunal may go straight to stage 2 of the burden of proof test, acting on the presumption that the burden has shifted (see e.g. Laing v Manchester City Council

[2006] ICR 1519

). This is what the ET did, as an alternative finding, at paragraph 143 of the judgment. (2) Incorrect application of the harassment test (s. 26 Equality Act 2010)

[8]The Claimant contends that the ET wrongly rejected the Claimant’s harassment claim (in relation to doing a U-turn in accusing her of not working at the level expected; allegation 4.1.1.7) at paragraph 193 of the judgment, despite finding that she satisfied “both the subjective and objective elements”.

[9]It is correct that the ET found, at paragraph 193, that Ms Collard had engaged in unwanted conduct which satisfied the “purpose or effect” test set out in s. 26 EqA 2010. However, at paragraph 194, the ET went on to find that there was no evidence from which it could conclude or infer that the conduct was related to the Claimant’s race. That was the reason why this claim failed. The reconsideration application does not challenge that finding and thus has no reasonable prospect of success. (3) Narrow interpretation of public interest (s. 43B ERA 1996)

[10]The Claimant’s complaint is that the ET wrongly applied the public interest test set out in s. 43B ERA 1996. The Claimant refers to the decision in Chesterton Global v Nurmohamed

[2017] ICR 1039

[11]The ET specifically noted at paragraph 122 of the judgment that, even where the disclosure relates to an individual contract or a matter of personal interest, there may be factors that make it reasonable to regard it as being in the public as well as the worker’s personal interest. The ET went on to cite the factors the Court of Appeal in Chesterton set out as matters that might assist in determining whether a disclosure is in the public interest at paragraph 123. The ET then analysed the Claimant’s disclosure against those factors at paragraph 218 and found that it did not meet the test, as it concerned only the Claimant (rather than a wider problem involving race discrimination) and related to a single meeting with a single manager. The Claimant has not pointed to any error that makes it necessary in the interests of justice to reconsider this finding.

[12]In any case, the ET also found at paragraph 219 that the claims would have failed in any event, because the Respondent had shown that the alleged detriments relied upon had been done for reasons other than the fact that the Claimant had made the alleged protected disclosures. In such circumstances, the Claimant has no reasonable prospect of showing that it is necessary in the interests of justice to reconsider the finding on public interest, which would not alter the outcome of the claim. (4) Failure to Recognise a Continuing Act (s. 123 EqA 2010)

[13]The Claimant complains that the ET erred in law in failing to regard acts involving Mrs Collard and Mr Spittle as part of a continuing discriminatory state of affairs as defined in Hendricks v Commissioner of Police of the Metropolis

[2003] ICR 530

for the purposes of s. 123 EqA 2010.

[14]The ET included the Hendricks explanation of the considerations to be taken into account in determining whether conduct constituted an act extending over a period at paragraph 115 of the judgment. The ET proceeded to apply that guidance at paragraphs 211 – 213 of the judgment. The principles referred to by the Claimant were applied and the fact that the Claimant disagrees with that application does not suggest any error of law requiring reconsideration.

[15]In any event, the Claimant has no reasonable prospect of showing that reconsideration is in the interests of justice(a) because despite finding that there was no act extending over a period, the ET extended time in respect of the out of time complaints at paragraph 213; and

(b) the substantive complaints failed. (5) Misapplication of the comparator test (s. 23 EqA 2010)

[16]The Claimant argues that the ET erred in rejecting the Claimant’s proposed comparator, Mrs Collard, at paragraph 161 of the judgment, which refers to allegation 2.1.6. The Claimant says this is a misapplication of Shamoon v Chief Constable of the RUC

[2003] ICR 337

, “which requires that comparators be in relevant, not identical, circumstances”.

[17]The Claimant’s formulation misunderstands the wording of s. 23 EqA 2010 and the decision in Shamoon, which held that the relevant circumstances of individuals relied upon as actual comparators must be the same; see for example Lord Scott of Foscote at paragraph 108. Lord Scott goes on to say, at paragraph 109, that individuals who cannot be actual comparators may provide evidence supporting an inference of discriminatory treatment. He comments: “The usefulness of the tool will, in any particular case, depend upon the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant the difference or differences the less cogent will be the case for drawing the requisite inference.”

[18]The ET properly considered whether all relevant circumstances were the same or not materially different as between Mrs Collard and the Claimant at paragraph 161, and found that they were not, so Mrs Collard could not be an actual comparator. The ET also considered the extent to which Mrs Collard’s treatment assisted in constructing a hypothetical comparator, and found that any assistance was limited. The Claimant has identified no error of law that requires reconsideration in the interests of justice. (6) Failure to consider cumulative discrimination (De Souza error)

[19]The Claimant says the ET erred, having found individual factual allegations were substantiated, by failing to take a step back and assess the collective effect of those allegations, instead considering them only singly.

[20]In support of this complaint, the Claimant refers to paragraph 186 of the judgment. It is not clear why the Claimant considers this paragraph illustrates such an error as it states explicitly: “Taking a step back, we have considered collectively all of the factual allegations we have found the Claimant to have proved, in whole or in part (namely 2.1.1.2, 2.1.1.4 and 2.1.1.7; 2.1.5; 2.1.6; 2.1.7; 2.1.10 - 2.1.14). We have considered whether these factual allegations, in the light of the other evidence we heard, constituted facts from which it could be concluded that the Claimant had been less favourably treated because of her race. Considering the allegations collectively did not change our view from that reached when considering the allegations individually. As set out above, we found that the Respondent had provided a clear explanation for each allegation, which was in no sense whatsoever the Claimant’s race.”

[21]The alleged error is contradicted by the very paragraph to which the Claimant refers and there is no basis on which it can be said to be in the interests of justice to reconsider the judgment for this reason. (7) Mischaracterisation of racialised framing and stereotypes

[22]It is not clear precisely what error of law the Claimant is raising in this section. She argues that the ET’s conclusions on three separate factual issues “ignore the Tribunal’s duty under Richmond v Dhaliwal to assess how racialised framing impacts dignity and escalates outcomes”.

[23]The ET carefully considered each of the points raised by the Claimant as demonstrating racialised assumptions or stereotypes, namely(a) concern by Dr Money that a substantial gift given to her by the Claimant was a “bribe” (at paragraphs 78 – 79 and 182);

(b) Mr Spittle’s reference in the NMC referral to the Claimant being deceitful and lacking integrity (paragraphs 179 – 183) and

(c) the reference to the Claimant’s competence in an email chain including the acronym IEN (Internationally Educated Nurse) in the title (paragraph 185). In each case, considered in context, we did not consider that there was any evidence to show that these comments or phrases arose from racial stereotyping as alleged, and in the latter case, the term was not applied to the Claimant.

[24]The Claimant now argues that simply because the IEN reference was made in a chain in which the Claimant’s performance was later referenced, that meant it “reinforced racialised assumptions about clinical capability”. This is not the argument that was made at the hearing. The point made in the Claimant’s skeleton argument and in oral submissions was that the Claimant was labelled an IEN. It is not in the interests of justice to allow the Claimant to introduce new arguments at this stage. In any event, I cannot see any basis on which to conclude that, in circumstances where the ET found the Respondent had justified serious concerns about the Claimant’s capability, referring to those concerns in an email chain that began with similar concerns about the competence of a different individual who was an IEN is something from which an inference of race discrimination could be drawn. The Claimant has no reasonable prospect of showing that it is in the interests of justice to reconsider these conclusions. (8) Procedural Inconsistency in NMC Referral Analysis

[25]The Claimant’s complaint is that the ET failed to consider the NMC referral in the light of the timing of the Claimant’s protected acts and resignation, and misapplied the dicta in Nagarajan v London Regional Transport to the effect that the protected act need only be a significant influence on the impugned behaviour.

[26]The ET specifically referenced the Nagarajan causation test in its analysis of the law (paragraph 113 of the judgment). It then applied that test in relation to the NMC referral at paragraphs 206 – 207, referring back to the positive findings it had made about the timing of the NMC referral at paragraphs 176 – 184. The ET accepted the Respondent’s evidence that the reason why the NMC referral was made (which it found was not in fact a day after the Claimant’s departure, but probably around a week later) was because the Respondent reasonably believed the Claimant posed a risk to patient safety and was concerned that, having resigned from the Respondent, she could seek employment with a new employer who would not be aware of the competence issues. There was no misapplication of Nagarajan and there is no reasonable prospect of the Claimant showing that it is in the interests of justice to reconsider this finding. (9) Discriminatory effect despite benevolent effect

[27]The Claimant here argues that, simply because the decision to move the Claimant following her complaint about Mrs Collard (allegations 2.1.7 and 2.1.11) may have been well-intentioned, that does not prevent it from being race discrimination.

[28]The Claimant’s application mischaracterises the ET’s conclusions at paragraphs 162 and 168. The ET did not find that there was no race discrimination because Ms Moemken had a benevolent intention in moving the Claimant or not returning her to her previous role. The ET found that there was no evidence to suggest that a white comparator would have been treated any differently in the same circumstances as the Claimant. The reconsideration ground does not have any reasonable prospect of success as it is based on a misunderstanding of the ET’s judgment.

[29]The Claimant also argues that the ET wrongly characterised the Claimant’s request to be moved from the Home Treatment Service (when Mrs Collard stayed) as a neutral act of agency, when it was a “choice” made within a racially hostile environment, to shield Mrs Collard. The documentary evidence showed that the Claimant made the request but the ET’s analysis did not end there; it concluded, at paragraph 169, that there was no evidence to suggest that a white employee in the same circumstances as the Claimant would not also have been moved. Mrs Collard was not, as the ET had already found, in the same circumstances as the Claimant.

Conclusion

[30]For these reasons, I dismiss the Claimant’s application for reconsideration under rule 72(1) of the ET Rules 2013.