Mr A Doghaim v Manchester University NHS Foundation Trust: 2407878/2022

EMPLOYMENT TRIBUNALS

Case No 2407878/2022

Between

Mr A DoghaimClaimant

Manchester University NHS Foundation TrustRespondent

Before

Employment Judge Leach; Ms K Fulton and Ms P Owen

In person for claimant

Ms A Smith (instructed by counsel) for respondent

Date 5 September 2024

JUDGMENT

The claimant’s complaints of harassment and direct discrimination (protected characteristic, race) brought under sections 26 and 13 Equality Act 2010 do not succeed and are dismissed. JUDGMENT having been sent to the parties on 6 September 2024 and written reasons having been requested by the claimant on 10 September 21024 in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The claimant alleges that he was subject to harassment and direct discrimination (protected characteristic race) at the hands of the respondent.

[2]The claimant was not directly employed by the respondent. He was supplied via an agency to carry out work and was therefore engaged as a contract worker for the purposes of section 41 Equality Act 2010.

[3]The relevant events took place on 15 June 2022, when the claimant had been booked to provide interpreting services at a dental appointment within the respondent’s hospital. He attended on that day and says he was treated by the respondent’s staff in ways that amounted to direct discrimination and harassment. This Hearing

[1]The hearing was listed for 3 days. On the morning of the first day, we engaged in initial discussions with the parties and read the statements and file of documents that had been provided to us by the parties. Reference to page numbers in this judgment are references to this file. We heard the evidence from noon on the first day.

[3]We then heard from the respondent’s witnesses later on the afternoon of day one and on day 2. The respondent called 6 witnesses as follows:-a. Dr Fulton – a specialty registrar in paediatric dentistry, based in the Dental department at Manchester Children’s Hospital

b. Dr Hood – the consultant who heads up that department.

c. Mrs Butterworth – a receptionist in the department

d. Mrs Harrop – also a receptionist

e. Mrs Mulholland – a matron and senior manager with the respondent

f. Ms Wilson – a senior manager and lead nurse for quality and professional practice.

[4]We heard submissions on the afternoon of day 2 and gave the parties our decision on day 3. Complaints and Issues

[5]The complaints and issues in this case were identified at a preliminary hearing on 6 February 2023. The Judge drafted a list and attached it to her case management orders. Neither party raised any concerns about the list. On the morning of day one, we agreed with the parties that it was the list of complaints and issues for us to make decisions on. It is set it out below. 1. Time limits1.1 There are no time limit issues relating to complaints other than the complaint about the alleged comment by Ms Harrop on 15 June 2022.

1.2 The discrimination complaint about the alleged comment by Ms Harrop on 15 June 2022 was not made to the Tribunal within three months (allowing for any early conciliation extension) of that act.

1.3 In relation to that complaint, the Tribunal will decide:1.3.1 Did that act form part of conduct extending over a period?

1.3.2 If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period?

1.3.3 If not, was the complaint made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide:1.3.3.1 Why was the complaint not made to the Tribunal in time?

1.3.3.2 In any event, is it just and equitable in all the circumstances to extend time? 2. Harassment related to race (Equality Act 2010 section 26)

2.1 Did the respondent do the following alleged thing: 2.1.1 On 15 June 2022, Ms Harrop say to the claimant “when you arrived you were on the phone and this is rude in this country.”

2.2 If so, was that unwanted conduct?

2.3 Was it related to race (the claimant identifies himself as of Arab ethnic origin)?

2.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

2.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 3. Direct race discrimination (Equality Act 2010 section 13)

3.1 What are the facts in relation to the following allegations:3.1.1 (if this is not found to be harassment) the alleged comment by Ms Harrop on 15 June 2022 that “when you arrived you were on the phone and this is rude in this country.”

3.1.2 The respondent failing to investigate before banning the claimant from further work for them.

3.1.3 The respondent banning the claimant from further work for them by telling two agencies, DA Languages and Stockport Interpreting Unit, not to send the claimant on jobs for them.

3.1.4 The respondent failing to respond to the claimant’s grievance dated 23 August 2022 before presentation of the claim on 18 September 2022.

3.2 Did the claimant reasonably see the treatment as a detriment?

3.3 If so, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than someone in the same material circumstances of a different race was or would have been treated? The claimant relies on a hypothetical comparison.

3.4 If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of race?

3.5 If so, has the respondent shown that there was no less favourable treatment because of race? 4. Remedy for discrimination or victimisation.

4.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

4.2 What financial losses has the discrimination caused the claimant?

4.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for other work?

4.4 If not, for what period of loss should the claimant be compensated?

4.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

4.6 Should interest be awarded? How much? Findings of Fact The Claimant 4. The claimant is British and of Arabic ethnic origin. For a number of years he worked as an interpreter. 5. At all relevant times he provided his interpreter services through two agencies: one called DA Languages Limited and the other Stockport Interpretation Unit, a service operated by Stockport Council. The claimant has a hearing impairment and wears hearing aids when undertaking his professional interpretation services. The Respondent

Findings of Fact

[6]The respondent is a large NHS Trust that operates from ten hospitals in the Manchester and Trafford boroughs. One of these hospitals is the Royal Manchester Children’s Hospital, (which we will refer to as the Children’s Hospital).

[7]The Children’s Hospital has a Dental Health Unit and that is where relevant events on 15 June 2022 took place. 15 June 2022

[8]The respondent had booked an Arabic interpreter to attend a dental appointment on 15 June 2022, and to interpret for a child patient and their parent whose first language was Arabic. The booking was with DA Languages and the claimant was the interpreter booked through that agency.

[9]We need to decide what happened on the claimant's visit to the Children’s Hospital on that day. Strictly, the only finding we need to make about that day is whether Joanne Harrop, a receptionist employed by the respondent, said to the claimant the words, “you were talking on the phone and this is rude in this country”, but we have decided to make wider findings of fact as that exercise has helped us in our understanding of the subsequent events and our decision on the three complaints that do not directly relate to this alleged comment. Both parties provided evidence and made submissions on the wider events.

[10]We heard the claimant's version of events. We also heard evidence from four witnesses that the respondent called and who witnessed various parts of the relevant events of 15 June 2022. We have considered all of these accounts as well as relevant documents and we set out our findings next.

[11]The claimant was booked for an appointment at 09.30am but arrived at the Children’s Hospital in good time before then. The Dental Department is close to the entrance to the hospital and it was also before 9.30am, when the claimant arrived at that department. The claimant was in the middle of a telephone call when he arrived.

[12]There were two receptionists working that day within the department: Ms Butterworth and Ms Harrop. Although the claimant arrived before 9.30am he did not approach the reception desk until after then. He finished his call before telling reception that he was there. We accept Ms Harrop’s evidence that was at 9.39am. The receptionists knew that the claimant was there because both of them witnessed the claimant leaning against a wall speaking on his phone. The reception and waiting area is small and generally a quiet place. The call was long, the claimant was already on the phone before 9.30am when he arrived, and this continued until 9.39am or just before. The claimant was talking in Arabic on the phone and it must have been pretty clear that he was the interpreter. It certainly became clear when he booked in.

[13]The claimant's evidence is that he announced his arrival to Ms Butterworth whilst still in the middle of his call, that Ms Butterworth was also on the phone but that he handed her (or left on her desk) his booking form or job sheet. We do not accept that evidence. We prefer the evidence of Ms Butterworth that he did not initially approach reception and that she did not deal with him. We also accept the evidence of both the receptionists that they were both working on reception and if one had been on a call the other would have been available.

[14]In fact the patient who needed help from the interpreter had not arrived even by 9.39am. The patient’s appointment was at 9.30am but they did not arrive until later. We do not know what time that was. The claimant's decision to continue his phone call therefore beyond 9.30am was not the reason that the appointment started late, and to that extent it was no inconvenience to the respondent. Ms Harrop had noted the claimant's inattention to the role that he had been appointed to cover (or certainly that was her view) – his continuation of an unrelated phone call whilst in the otherwise quiet environment of the waiting room – and that he had not declared himself as available to start his interpretation role for the Trust until 9.39am.

[15]There may well have been no other consequences had the claimant not erred in providing the wrong form for completion and signature, as explained next.

[16]The claimant attended the appointment with the child patient and their parent. It was a long appointment and lasted until noon. The claimant had the job sheet that needed to be completed. He gave a job sheet for completion to Dr Fulton, the dentist who had treated the patient. Dr Fulton completed the form and added a comment, “Excellent, thank you” in a box that requested comments about the claimant's work. Dr Fulton noted down three times as the form required:• Interpreter arrival time: 9.30am

• Actual start time: 9.30am

• Finish time: 12.00 noon.

[17]Dr Fulton’s evidence (which we accept) is that it is generally the treating clinician who completes the form. That clinician is unlikely to know exactly what time an interpreter arrives within a department as they will be in their clinic room rather than reception. The practice Dr Fulton adopts is to put down the time that the appointment is due to commence – we are sure if an appointment was held up because an interpreter was late he would not just put that time down, but that is not what happened here and the general practice was followed. That is why the arrival time and the start time are the same. The finish time is something the clinician will know and that will be accurately recorded.

[18]Unfortunately for the claimant, he had provided Dr Fulton with the wrong form to complete. It was a form for another appointment with another patient. The claimant realised this shortly after he had left the department and returned straightaway. On return he spoke with Ms Harrop and explained what had happened and that he needed the correct form to be completed. Ms Harrop asked the claimant to provide the form and that she would copy over the details from the wrong form onto the correct form rather than interrupt Dr Fulton. That is what she did, but with one significant exception. She recorded the interpreter arrival time as 9.39am rather than 9.30am. She did not explain to the claimant that she had done this. She did not highlight it to the claimant in any way. She had told the claimant (some might say, sought to mislead the claimant) that she was simply going to copy the same information onto the other form. She handed the form back to the claimant who reasonably assumed that the same details that Dr Fulton had provided were on the form.

[19]As the claimant was leaving the department, he noticed the different time of 9.39am and returned to Ms Harrop. He queried the time. Ms Harrop told him that he had been on the phone and had not reported to reception until 9.39am. This frustrated the claimant and he started to raise his voice and put his side to Ms Harrop. He told Ms Harrop that she was on the phone when he arrived. In turn Ms Harrop disagreed and put her side of events – that it was the claimant who was on the phone and he did not report that he was available until 9.39am.

[20]We are afraid that this became an unedifying scene in a quiet waiting room and reception area of a children’s hospital. The claimant demanded to speak “to the man” (meaning Dr Fulton). Ms Harrop took the claimant into the clinical area of the department and Dr Fulton was there. Both the claimant and Ms Harrop had a view about these nine minutes. Dr Fulton was confronted with having to resolve the position in the busy clinical area and opted simply to amend the time back from 9.39am to 9.30am. Ms Harrop stated that this was wrong. Like the claimant, she also felt strongly about the position and her voice was also raised. We know this from the evidence of another witness, Dr Hood.

[21]We need to decide whether, in this heated discussion between the claimant and Ms Harrop, Ms Harrop told the claimant that he was on the phone when he arrived and specifically said “and that is rude in this country.” We find that these words were not said. Ms Harrop did tell the claimant that he had been on the phone and not reported to reception until 9.39am, but she did not also say “and that is rude in this country”. These are the reasons why we make this finding:(1) First of all, that the claimant did not complain that these words were said until 23 August, over two months after the incident. We have considered the claimant’s explanation that insensitive and sometimes racist words are said to him and his wife with regrettable frequency when out in the public, and he mostly dismisses those comments as a slip of the tongue. He generally does not complain. We have also taken account of the fact that he knew on 20 June that Ms Harrop’s actions were not just “a slip of the tongue” ( a term used by the claimant) in the sense that he had been told by then that he was banned from working with the respondent; in other words, that there were very significant implications for him arising from Ms Harrop’s reporting of the incident.

(2) The claimant wears hearing aids and that his evidence is that he had taken them off at the end of the appointment; he did not have them on during the heated discussion.

(3) When responding to questions in cross examination the claimant was a little equivocal in his response about whether those words had been said.

(4) We also note that the claimant did not put the allegation to Ms Harrop when questioning her in this hearing. It was left to us to put the allegation. Whilst this in itself did not lead to a decision that the comment was not made; we are afraid that it did form part of a picture that the claimant was and remains more generally aggrieved about what happened to him. As we explained, it is not for us to make decisions on general grievances. Our jurisdiction in this case is limited to the complaints raised under the Equality Act, those complaints of discrimination that have been identified.

[22]Ms Harrop was upset about what happened. She spoke about the incident with Dr Hood, the consultant in charge of the department, and they agreed that a complaint should be made to the respondent’s Interpretation and Translation Department. That complaint was made by Ms Harrop and in turn the agency (DA Languages) was contacted by the respondent’s Interpretation and Translation Department.

[23]The email from the respondent to the agency is at pages 70 and 71 of the bundle. It contains some details that are inaccurate and are an unfair reflection on the claimant. For example, it states that the claimant was shouting at anyone who tried to intervene, but there was no-one. It says the claimant was demanding to speak with “a man” and that he refused to converse with any female. That is untrue and unfair. The claimant wanted to talk to Dr Fulton but did not know his name – that is where the comments made by the claimant about wanting to speak to “the man” come from. It says the claimant refused to leave. Again, a reader might interpret this comment to mean that he was asked to leave and refused – he did not. We are sure that the claimant’s voice was raised and this was mainly due to his frustration – it may also have been due to him having by then removed his heating aids. We are also sure that he was talking over others, specifically Ms Harrop, and that the scene was unedifying, but we note that the claimant's conduct was unfairly represented in that email. Action of DA Languages

[24]The agency (DA) acted swiftly but we have very limited evidence of what steps they took to investigate the matter. The bundle includes a client feedback form dated 20 June 2022 (page 72) and so suggesting a rapid investigation and response. That form includes the following comment: “I have investigated this incident and although the linguist has asked me to extend his apologies to all parties involved, I have reported the linguist’s lack of professional behaviours to our recruitment Team manager for further assessment and review of the linguist’s registration with DA Languages as we do not intend to ignore repetition of misconduct.”

[25]Contrary to that statement the claimant told us that he did not offer an apology and we have no reason to disbelieve him. We have no explanation of the phrase in their report “we do not intend to ignore repetition of misconduct.”

[26]We note that the respondent did not itself conduct a full investigation but relied on the information provided by the department – that was not just the information from Ms Harrop but also from Dr Hood who had witnessed some of the incident and decided therefore that the claimant should be reported. This is not in our experience unusual when a commercial organisation has engaged the services of an agency or contract worker. One of the benefits for an organisation is that it does not need to go through its internal disciplinary procedures that it would need to if that worker was directly employed – it can simply report its dissatisfaction to the agency and tell the agency it does not want the worker to return. The agency then is often left with having to manage a valuable customer or client relationship to keep that client content and will accord with the client’s wishes. That may well have been the position here, although we have no evidence from the agency itself other than the client feedback form.

[27]We have not seen any contractual terms between the respondent and DA Languages. We do not know, for example, whether there are any procedures within those terms for this type of situation, but we note that the reason why the respondent’s interpretation team and in turn DA Languages were contacted was because of the altercation on 15 June and specifically the claimant’s conduct (or the views of the claimant's conduct) on that day. Claimant's Grievance

[28]On 23 August, the claimant sent an email to the respondent. That email is at pages 77 and 78. It is headed in bold “Please accept this as a formal grievance”. The subject matter of the email is “Less favourable treatment by MFT Interpretation Booking Team.” The grievance set out in detail the claimant's version of events. This is the first time that the claimant mentioned the comment, “this is rude in this country,” which the claimant refers to as “covert racism.” The claimant's grievance asks the respondent to correct inaccuracies and to note that he feels he has been discriminated by the interpretation booking staff, but particularly highlighting that alleged comment. He asked for a response. He did not get a response, at least not for a considerable time. His email was not picked up and dealt with. We note the following about that email:• That it went to an inbox that was there for other business (booking interpreters) not for complaints;

• That the inbox was to a department that was woefully understaffed at the time;

• The inbox was not one that was used by individual interpreters but used by agencies regarding bookings.

[29]The lack of any action is disappointing. One would have hoped that a member of staff would have at least seen the email and passed it on, but the reason it was not picked up is that members of staff working on the inbox were focussed on the business of booking interpreters. Whilst we have not had any direct evidence on this, we think it likely that this email disappeared amongst the many emails in the inbox as it became older and older and out of sight of those looking at the inbox on a day-to-day basis. The respondent has apologised for this oversight.

[30]The claimant had not received a response to his grievance in and decided therefore to issue this claim. Only once the respondent (or rather a different team within the respondent) had been put on notice that a grievance had been ignored was the grievance found and investigated. The complaints do not require us to make any findings about the investigation that then followed. The Law Time limits

The Law

[31]Section 123 Equality Act 2010 (EqA) provides that complaints may not be brought after the end of 3 months “starting with the date of the act to which the complaint relates” (s123(1)(a) EqA. This is modified by section 140B – providing for early conciliation.

[32]Section 123(1)(b) provides that claims may be considered out of time, provided that the claim is presented within “such other period as the employment tribunal thinks just and equitable.”

[33]Section 123(3)(a) provides that “conduct extending over a period is to be treated as done at the end of that period.” (We refer to this below as a continuing act). Harassment – section 26 Equality Act 2010 (“EqA”)

[34]Section 26 (1) states: “ A person (A) harasses another (B) if – (a) A engages in unwanted conduct relating 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

[35]The EAT decision in Richmond Pharmacology Limited v. Dhaliwal

[2009] IRLR 336

emphasised the need for Employment Tribunals when deciding allegations of harassment to look at three steps, namely:-a. Whether the respondent had engaged in unwanted conduct

b. Whether the conduct had the purpose or effect of violating the claimant’s dignity or creating an adverse environment

c. Whether the conduct was on the grounds of the applicable protected characteristic? Direct Discrimination – section 13 Equality Act 2010

[36]Section 13 states: “A person (A) discriminates against another if, because of a protected characteristic, A treats B less favourably7 than A treats or would treat others.”

[37]An important question for us is whether the claimant’s race was an effective cause of the treatment which we find. As was made clear in the case of O’Neill v. St Thomas More Roman Catholic School

[1996] IRLR 372

the relevant protected characteristic need not be the only cause of the treatment in question. We also note the following:-a. the House of Lords in Nagarajan v London Regional Transport

[1999] ICR 877

, HL, held “discrimination may be on racial grounds even if it is not the sole ground for the decision……..If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.” (judgment of Lord Nicholls)

b. Paragraph 3.11 of the EHRC Employment Code which states that ‘the characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause.’ Burden of Proof

[38]We are required to apply the burden of proof provisions under section 136 Equality Act 2010 when considering complaints raised under the Equality Act 2010.

[39]Section 136 states: “(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are any facts from which a court could decide in the absence of any other explanation, that a person (A) has contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection 2 does not apply if A shows that A did not contravene the provision.”

[40]We have also considered the guidance contained in the Court of Appeal’s decision in Wong v. Igen Limited

[2005] EWCA 142

. This case concerned the test as set out in discrimination legislation that pre-dated the EqA but the guidance provided in there remains relevant. The annex to the judgment sets out guidance.

[41]We are also clear that the wording of the statute itself – s136 Equality Act 2010 - is the key reference in relation to burden of proof when reaching decisions about whether there has been a contravention of the EqA.

[42]There can be occasions, particularly where a claimant is relying on a hypothetical comparator (as here) where it is appropriate to dispense with the first stage of the burden of proof test and to focus on the second stage, the reason why the Respondent treated the claimant in the way that it did. See for example the EAT Judgment in Laing v. Manchester City Council

[2006] IRLR 748

(paragraphs 73 to 77).

[43]We also note the EAT’s caution against Tribunals adopting this approach too readily - in the more recent case of Field v. Steve Pye and Co (KL) Limited

[2022] EAT 68

and particularly paragraphs 43-46.

[44]Finally, on the issue of burden of proof, we are mindful of guidance from case law indicating that something more than less favourable treatment may be required in order to establish a prima facie case of discrimination; see for example Madarassey v. Nomura International

[2007] ICR 867

where the following was noted in the judgment: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

Conclusions

[45]It will be clear to the parties from our findings of fact what our conclusions are, but for completeness we note them as follows. Our decision on each complaint is unanimous. Issue One – Time Limits

[46]We have decided that it is just and equitable to extend time to allow the harassment complaint and the first of the discrimination complaints to proceed. These are our reasons:-a. During the course of this hearing, we have heard all of the evidence in this case.

b. any delay that might have affected the cogency or the reliability of evidence can in the main be put down to the respondent’s failure to pick up the grievance rather than the delay of a mere few days on the part of the claimant in terms of issuing his claim,

c. we are satisfied that the cogency or reliability has not been affected.

d. In this case, it will be helpful to the parties to receive our findings on liability and so to have an outcome on everything (finality). Issue 2 – Allegation of harassment on 15 June 2022.

[47]Dealing then with our conclusion about the allegation of harassment, our finding quite simply is that the alleged comment was not said, and that brings that complaint to an end. Issue 3 – allegations of direct discrimination

[48]The same conclusion as under issue 2 must also follow to the first complaint of direct discrimination.

[49]As for the remaining three complaints of discrimination, the claimant relies on a hypothetical comparator. We have decided that it is appropriate in giving this judgment to apply the “reason why” test; therefore dispensing with the first stage of the burden of proof test. Recognising the instruction to be cautious in adopting the approach, we also note our conclusions when applying the 2-stage burden of proof test.

[50]Dealing with the three remaining allegations:(1) The respondent failing to investigate before banning the claimant from further work. The reason why the respondent failed to investigate the claimant was because the claimant was a contract worker. Their concerns were reported to his agency (DA Languages) and race was not a reason for that treatment. That is a typical approach from an organisation engaging agency or contract workers. The clamant has not discharged the first stage of the 2-stage burden of proof test.

(2) The respondent banning the claimant from further work for them: The reason why the respondent banned the claimant from further work, is the events of 15 June and the respondent’s interpretation of those events, as well as the fact that the claimant was a contract worker. Again, race was not a reason for this treatment. As with our conclusions under (1) above, we find this to be a typical approach from an organisation engaging a contract or agency worker with whom they have concerns about their conduct. Legitimate concerns were raised, even though there was some unfairness when those concerns were ultimately reported to the agency. In those circumstances, the claimant has not discharged the first stage of the 2- stage burden of proof test. If we are wrong on this (for example if the unfairness in the ultimate reporting of those concerns is enough to discharge the first stage of the burden of proof test) then – as noted above – we are satisfied that the respondent has provided an explanation for its action of banning the claimant from further work.

(3) The respondent failing to respond to the claimant's grievance of 23 August 2022 before presentation of the claim: The reason for this failure is that the claimant’s email was not picked up by a member of staff working on the relevant inbox at the time. That person was concerned with bookings for interpreters. The claimant's race was not a reason for that treatment. In so far as the claimant has discharged the first stage of the burden of proof test, by demonstrating that his grievance was not deal with until he presented his Employment Tribunal claim, then we have considered and accept the respondent’s explanation about understaffing and the nature of the inbox that the claimant’s email was received in to.

[51]We also note for completeness that the nature of the claimant's grievance, being a complaint of race discrimination, was not a reason for the treatment either.

[52]That concludes our judgment.