Mr O Ajao v East London NHS Foundation Trust: 3200591/2024

EMPLOYMENT TRIBUNALS

Case No 3200591/2024

Between

Mr O AjaoClaimant

East London NHS Foundation TrustRespondent

Before

Employment Judge Isabel Manley

In person for claimant

Ms J Blackburn (instructed by solicitor) for respondent

Date 18 March 2025

JUDGMENT

The claim for constructive unfair dismissal is struck out as it has no reasonable prospects of success as the claimant did not have two years’ service with the respondent at the effective date of termination of employment.

REASONS

[1]The claimant was employed as a mental health nurse at City and Hackney Mental Health unit, Homerton (‘the unit’) with the Respondent NHS Trust from 1 November 2022. He resigned on 6 January 2024 with effect from 1 March 2024. He presented complaints to the Tribunal on 8 March 2024 after a period of ACAS EC from 19 February 2024 to 23 February 2024.

[2]The Claimant withdrew his direct race discrimination claims and his breach of contract claims.

[3]The issues were finalised on the second day of the hearing. We allowed the one amendment which was not agreed, because it was reflected in the Claimant’s Further Information. The issues are set out in the Appendix to these reasons.

Findings of Fact

[4]Having heard the evidence of the Claimant, and (with their job titles at the time of the relevant events): 4.1. Miss White, Band 6 Nurse on Ruth Seifert Ward; 4.2. Miss Agrwal, Life Skills Recovery Worker 4.3. Mrs Goodey, Modern Matron of Ruth Seifert Ward; 4.4. Miss Lingard, Borough Lead Nurse 4.5. Mrs Shahzad, cover Modern Matron for Connolly and Brett wards ; and having read the documents referred to us, we make the following findings of fact.

[5]We find the facts by deciding what was more likely to have occurred. We weigh what people have told us from their memories and what the documents say. Where witnesses have very different memories of an event, this is sometimes a difficult task. We do our best, impartially and at this distance of time, to decide what probably happened. A finding in favour of one party is not necessarily a finding that the other party has lied: our memories can be unreliable even when we are doing our best to be honest. We look at the evidence in relation to the disputed fact.

[6]Submissions on general demeanour of witnesses were made to us: we find such submissions problematic – a witness can be right about one fact and wrong about another. That someone is clear might simply mean they are articulate. That someone tends to give long answers might simply be an aspect of culture (we have had regard to the Equal Treatment Bench Book on this). We prefer to weigh the evidence on each disputed fact rather than in general by reference to those factors.

[7]Consistency is also a difficult evidential beast. A person might consistently remember the core of an event but not be very good at remembering reliably the hinterland of it. That they cannot remember the secondary matters should not necessarily undermine the central memory.

Background

[8]Everyone who was a witness works or worked in the difficult environment of a mental health ward. It is a job they have chosen and which doubtless comes with satisfactions, but equally it is work in very challenging circumstances. We arrive at the end of this much-disputed case with a great deal of respect for all involved and the work they do. Nothing we say in this judgment should be heard as undermining that respect.

[9]We recognise, too, that management of a culturally mixed group of people can be difficult. We consider this case calls out for greater training of managers in this area: Mrs Goodey may well have lacked confidence in it. This judgment acknowledges that talking at work in neutral terms about cultural diversity is lawful. But where such talk turns hostile and undermining of a person’s national or racial identity and professional worth, it may become unlawfully harassing. Perhaps there is no bright line, but what this case teaches us is that colleagues’ frustrations (here about other colleagues not speaking English) should not be allowed to fester. This risks the expression of those concerns inappropriately, even offensive and hostile remarks. This is essentially why we have decided that Miss White did make harassing comments but that Miss Agrwal did not.

[10]Sometimes when managing a group of people (particularly where the needs of the service are so important for patients) managers may have to assert their decisions to maintain reasonable instructions, even where the instruction is not initially accepted. The background to the events after the temporary redeployment decision: managers became firmer in their management of the Claimant when he refused to move.

[11]Finally, we recognise that we all have human frailties. We cannot be expected, in reality or legally, always to behave perfectly at work. On 22 November 2023, a difficult conversation turned into an argument. Both the Claimant and Mrs Goodey could have behaved better, but they each had good reason for their frustration. They argued because they had different points of view not fully understood by the other.

Findings of Fact

[12]The Claimant identifies as black African. He was born in Nigeria. He is a registered mental health nurse with 3 years’ study at City University. He had worked at the Respondent as a bank nurse (i.e. with no contract of employment doing casual shifts) since around April 2020, mostly on Ruth Seifert Ward (RSW) but also on others.

[13]Nurses at the unit work on 7 wards and 1 Place of Safety Unit. These wards are staffed according to need. 13.1. RSW is seen as relatively the calmest, ‘nicest’ ward to work on. It is an acute male ward of 14 beds with 2 nurses on shift at any one time. 13.2. Bevan ward was a 17-bed, male psychiatric intensive care unit. It was located very near to RSW but the patients were much more unwell, and therefore the potential for violence greater. This is illustrated by the fact that nurses on those wards had to have the MAPA training in restraint techniques and that there were more often Rapid Response calls from those wards. This intensity meant that a greater number of nurses worked there at any one time to support each other. 13.3. Connolly ward was the female equivalent of RSW.

[14]The Claimant applied in June 2022 and was initially offered work on Brett ward. He refused this work, stating his preference for RSW. He was then made an offer of work on RSW. He accepted in his oral evidence (contrary to his written statement) that he did not give reasons about his preference for RSW at interview. They were, in fact, that he was reminded of his family’s experience of violence in childhood. He did not wish to work on a ward where the risk of violence was higher. We find that neither Mrs Goody nor Miss Lingard knew about this during the events in question. The Claimant thinks they did but cannot be clear that he told them. This is understandable, given the reason was so strong in his mind. Nevertheless we find it likely, given how personal his experience was, that he chose not to share it. It may be the Claimant confided in Mr Francique who ultimately paused the proposed temporary move to Bevan ward but he did not share it before that.

[15]The Claimant started as a band 4 mental health nurse and became a band 5 in January 2023 on receiving his professional registration. Thus by November 2023 had around 10 months’ experience as a band 5 and with the experience of his prior bank working.

[16]The Claimant accepts that his contract could require him to work in other locations ‘as [was] required’, 238. He also agreed he would cover on other wards to help out another ward if a nurse was on a break or annual leave and that he would go to other wards as a rapid responder. The contract provided: ‘LOCATION As a term of your employment, you may be required according to service needs to vary your duties, workplace, shift patterns or hours of work, as far as is reasonable in relation to the initial conditions of the appointment. Any such change would be subject to consultation and notice.’

[17]We find that the Trust would formally consult with a member of staff happened where such a relocation was permanent. It was more informal where it was temporary. This accorded with the contractual interpretation as it is about a ‘variation’ which suggests a permanent change.

[18]The staff on RSW were predominantly but not all black African staff including from Nigeria and from different ethnic groups within it. Some were Ibo and some, like the Claimant, were Yoruba. When a member of staff worked with someone from their own ‘tribe’ (as the Claimant put it) they would sometimes but not always speak in their shared first language. This was human nature, but some nurses carried on speaking in their first shared language when colleagues who did not speak that language arrived or were present. Understandably those colleagues felt excluded when this happened. We find there had been no formal complaint about this by any of those staff: even Miss White, a very experienced senior nurse of long-standing, did not complain formally which could have resolved matters. Instead she let her feelings about it build, becoming very, very upset and paranoid (in her words) about it.

[19]Ms T Commodore was the line manager on RSW. Miss White Comment November 2022

[20]Miss White was a band 6 nurse with 33 years’ experience. She was an important figure on the ward – she coordinated work, was the senior nurse on duty, sometimes taking the duty support nurse role.

[21]Very soon after the Claimant arrived on RSW as a permanent member of staff, we find Miss White showed dissatisfaction saying to him ‘only black nurses from Africa are employed these days’.

[22]We find this because: 22.1. The claim form and the internal complaint consistently describe the comment. 22.2. The Claimant has always said he responded to Miss White by challenging her and saying had worked 3 years at university – his attempt to point out he was employed on merit. 22.3. While Miss White denies she said these words, what she is clear about is that she was very upset and frustrated by what she called the African staff speaking their own language on the ward. It made her feel excluded and paranoid which damaged her mental health. While she had asked some colleagues not to do so, she had not made any formal complaint about it. Despite her denial, we find it likely, given her feelings, that she did express her dissatisfaction on seeing another nurse from Nigeria hired. This dissatisfaction was based in the frustrations we have described, not an antipathy as such to black or African people. While her language frustrations were perfectly understandable, it was because those frustrations had got the better of her that she crossed the line in the way she expressed herself clumsily and offensively to the Claimant. What she said was offensive. She lumped a group together by reference to their origin – only black nurses from Africa. And her tone was of dissatisfaction, not curiosity or neutrality. She did not talk about language use and her own feelings of exclusion. The Claimant understandably felt she was suggesting he was not appointed on merit and that is why he responded in the way that he did. 22.4. While para 4 of the Claimant’s witness statement adds that she asked if he was recently hired form Africa, this does not undermine the reliability of the main allegation. As we identify above, the core allegation has not changed. Sometimes in remembering an event, we mistakenly add matters in the retelling. 22.5. Whether or not the Claimant complained at the time or to Mrs Goodey in August 2023 does not undermine, in our view, the likelihood of the comment being made. We find the Claimant is unlikely to have told his manager a few weeks later, as he suggested in evidence to us. We think it more likely that he did as he explained to the internal investigation – let the matter slide. This makes sense to us: he would not want to rock the boat on his arrival. We do not criticise him for that.

[23]We do not find it likely that the Claimant raised Miss White’s comment in his later complaint to Mrs Goodey, which she denies. He says he did because Miss Agrwal’s comment (which we come to below) reminded him of Miss White’s comment. The allegation is not included in his written complaint at 270. On balance we find it likely he would have included it, if he had wanted to bring it up at that stage.

[24]On balance we find Miss White did express her dissatisfaction and said to the Claimant that only black nurses from Africa were employed these days. This was in November 2022, on one of his first days at work.

[25]In reaching this conclusion we have not had regard to the documents in the bundle where Ms Commodore complained about Miss White making similar comments because we have not heard from Ms Commodore. Nor have we considered the email from Ms Lowe who considered Miss White had spoken in a racist way and alleged that she had boasted about having assisted in moving the Claimant who was divisive. All of that evidence is hearsay at best. We have simply weighed the Claimant’s account and that of Miss White and concluded what was most likely to have occurred.

[26]On balance, and only just, we find that Miss White’s purpose was not to be offensive. Her behaviour was borne out of frustration about being excluded by language on the ward.

[27]But it is clear that the effect of her remark and the way she said it had an effect on the Claimant. He heard hostility from a senior, experienced nurse on the ward. This was his early experience of an important colleague. He was shocked. He felt his professional qualifications had been undermined, given he had been identified merely by his nationality. We come to whether this violated dignity later in our analysis. Alleged comments by Miss Agrwal

[28]On 5 August 2023 the Claimant says he heard from Ms Azeez, a bank mental health social worker, that Ms Agrwal had said to Ms Azeez ‘that she would not allow any black nurse to tell her what to do on the shift, that there were too many black people working on the ward and that she would implicate them.

[29]The context according to the Claimant was that Miss Agrwal had sent a patient on leave who was on a section 17 without checking first with the claimant who was the only nurse on the ward that day. The Claimant had spoken to her as she had left the ward radio unattended and she walked away from him. By ‘implicate’, the Claimant thought she had meant that she would make black staff responsible for problems.

[30]Miss Agrwal denies having used such words. She says that, coming recently from India, where such an expression is not used, she would not use the word ‘black’ to describe someone. Although new to the ward, like Miss White, she felt excluded by the African staff when they spoke in their own languages that she did not understand. She can recall speaking to Ms Azeez about the predominance of African staff on the ward because of this language problem and criticising the ward’s lack of diversity.

[31]Mrs Goody asked her about the allegation in supervision: ‘Aarti had discussed not feeling favourably about the team about it being cliquey and not really feeling she is part of the team. I [Mrs Goodey] received an email stating that AA had mentioned to bank staff toward was not culturally diverse enough and that it was cliquey. AA had gone on to say staff here all of an older generation and not enough energy in the team but younger staff feel pushed aside and unheard. She agreed she had said something along those lines. She said she was feeling very frustrated she did not mean for it to sound as it did. I [Mrs Goodey] think the staff hearing this thought AA’s comments had racial implications and AA agreed it could’ve sounded this way but it was not what she had meant.’ She was tearful and apologetic.’ (our emphasis)

[32]Mrs Goody had first asked Ms Azeez about the allegation. Ms Azeez was surprised, said the remarks had been taken out of context and mistranslated and did not want to raise it as a complaint herself.

[33]Although we have some reservations about whether Mrs Goodey put the full allegations directly to Ms Agrwal, we find Miss Agrwal made no more than a criticism of cultural diversity, she did not use the term black, did not say there were ‘too many black nurses’. We make this finding because: 33.1. Miss Agrwal was there and the Claimant was not when she said the words. Her evidence is therefore weightier. This is the problem with hearsay evidence – what was actually said can be lost in the retelling. 33.2. Miss Agrwal was new. She was not so frustrated as Miss White and is likely to have spoken in more neutral terms. 33.3. We find the Claimant is not lying in his recollection of what Ms Azeez said to him but has misinterpreted the words used – this is a common problem with hearsay. He or Ms Azeez heard lack of diversity as meaning too many black or African nurses. In a literal way this is of course what it meant, (hence Miss Agrwal accepting it could have been taken in a racial way) but Mr Iossifidis accepted that a discussion about diversity on a ward was not offensive. Colleagues would be concerned about diversity for a number of non-objectionable reasons: language being but one; ensuring the staff reflected the community they served perhaps another.

[34]We find that Miss Agrwal did not say she would not take instruction from black staff. Her denial is weightier than the second hand evidence from the Claimant. Her behaviour on the ward that day is not so obviously supportive of such a comment: she may have left the radio but we find she did not walk away from him. She may have got the section 17 form incorrect but that was a mistake. If there were performance issues they were not so stark as to suggest she was refusing instruction. We consider that if that were really her attitude we would have seen more evidence of it.

[35]We find she did not say implicate because it is not a word she uses.

[36]Voicing views on diversity in neutral terms useful. Use of language on the ward needed to be managed: we recognise it is not an easy subject but there is no evidence of it being managed here so that staff do not feel excluded and do not end up saying offensive things based far more broadly on race. Ms Commodore and/or Mrs Goodey should have done more to resolve this difficult problem. Mrs Goodey’s investigation

[37]Mrs Goodey became Modern Matron of RSW (line manager of the ward manager) about the same time as the Claimant arrived. She had the same experience as Miss White and Miss Agrwal of feeling excluded by language from time to time. She did not seek to manage this as a problem. We find she likely lacked the confidence to do so.

[38]The Claimant raised his compliant about Miss Agrwal’s alleged comment in writing on 9 August 2023. She spoke to the Claimant; then Ms Azeez, then Miss Agrwal. She did not make any record of her meeting with Ms Azeez.

[39]We find this was probably an informal complaint in the sense that it was not brought through the grievance procedure but to the manager.

[40]We find Mrs Goodey likely did not put the full complaint to Miss Agrwal because of what Ms Azeez had said to her about it being misinterpreted. She likely asked Miss Agrwal a more open question.

[41]We find that on the next shift she went through verbally with Miss Agrwal the Claimant’s performance concerns about insubordination and was satisfied she had a good explanation. We are satisfied that this occurred because Miss Agrwal gave us a similar explanation.

[42]Mrs Goodey told the Claimant the matter had been resolved and would not be taken any further. She did not respond in writing. Nor did she tell him how to appeal/take it further if he was not satisfied. She did not contact HR.

[43]While she said decided on mediation – we do not think this is likely given that she took no steps to set this up and merely told the Claimant the matter was resolved.

[44]Mrs Goodey is alleged not to have been impartial because her sympathies lay with Miss Agrwal who had a similar experience of exclusion by language use on the ward. We have some sympathy with that allegation given that her approach was informal, but we find she was very much guided by Ms Azeez’s reaction (to whom the comments had been made) and the steps she took were not so surprising as to warrant an inference of lack of impartiality. October Away Day Boycott

[45]Every 6 weeks or so a staff away day was planned. The October away day had to be cancelled due to staff non-attendance. The Claimant says some staff told Ms Commodore they had chosen not to go because of the lack of action after his complaint. We do not infer on the evidence we have heard that she told Mrs Goodey who did not know this. Bevan Ward

[46]A preceptor is a newly qualified nurse who cannot do everything. Ideally they should be supervised by a band 5 nurse with a year’s experience.

[47]On 26 October 2023, Ms Shahzad asked for a swap between 2 experienced nurses (band 5) and preceptors from Bevan to other wards for up to 6 months. Mrs Goodey and Ms Shahzad looked at staffing levels and all other relevant factors and considered that RSW was in a good place to help. There were therefore operational reasons for the need for redeployment and the selection of RSW to help.

[48]We must then consider why the Claimant was selected by Mrs Goodey.

[49]By 30 October Mrs Shahzad was still asking for names, so there had been no selection by then. We find it likely that names were given to her on 31 October: we infer this from page 284 that it was to be discussed in a huddle on that day. And from page 286 an email on that day at 10.27am requesting to see the Claimant two days later. We find it likely that Mrs Goodey came to the huddle on 31 October proposing the Claimant for the move to Bevan, thus by 10.27am.

[50]Mrs Goodey said one of the reasons she put the Claimant forward was because she knew he had failed a promotion interview. Mr Iossifidis put some time into undermining this as a probable fact and did so successfully. Unsuccessful Band 6 Application

[51]The Claimant’s interview was on 31 October with Mrs Shahzad and Samson. They decided on that day he was not successful. Samson was going to tell him.

[52]Mrs Shahzad thinks she had two separate conversations with Mrs Goodey about the failed interview and the move but she cannot remember whether she told Mrs Goodey on the same day as the interview. The Claimant does not think he told Mrs Goodey at all. Mrs Goodey’s recollection of when and how she knew that he had not been successful varied.

[53]We consider it unlikely that, as early as 10.27am on the day of the interview, that someone had told Mrs Goodey that the Claimant had failed it. We find she put his name forward for the redeployment and has then given this as additional reason because, probably at the same huddle when she put his name forward, she heard from Mrs Shahzad that he had failed the interview. Again we do not find Mrs Goodey has deliberately misled us: this is how memories can work (in the same way that the Claimant added material to his recollection of the comments).

[54]We are left with the question, why did Mrs Goody choose the Claimant for Bevan: 54.1. First, and generally, that it would be good experience for him. It was a Band 5 development opportunity. He had been a band 5 for 10 months. Band 5s often try to move on fairly quickly to band 6 roles. 54.2. Second, we accept that those named in para 17 of the Claimant’s witness statement could not go to Bevan, either because they were exempt from MAPA training and/or had returned from retirement. The Claimant has not named anyone else except Dennis from RSW who could have gone, but he had just come back from another redeployment on Gartner and Mrs Goodey did not think fair to ask him move again so soon. 54.3. The Claimant had done his 5 days MAPA training. There was a query about whether had his 2 days refresher training but we accept that this did not stop him from working on Bevan. This refresher could have been renewed once he was on the ward. The comparators were exempt, which was very different.

[55]Thus, while Mrs Goodey has added to her reasons, her knowledge of the failed job interview, this fact is not so different from her reasons at the time for us to warrant an inference that she was trying to mislead us.

[56]We have asked whether there is any other fact that would lead to an inference that his prior complaint about Miss Agrwal was a material factor in Mrs Goodey’s decision: 56.1. The Claimant did not have a year’s experience at band 5 (which was the ideal) but he was her best option on RSW with 10 months. The difference is not so great as to warrant an inference. 56.2. Importantly for us Mrs Goodey did not know about the issue of childhood trauma. We would have been worried if she had known about it but moved him anyway. 56.3. The move was only for 3 months. 56.4. Mrs Goodey did not know about boycott away day reason 56.5. There was a pressing need on Bevan ward and it did not look as if anyone else was suitable. 56.6. On balance we find she is unlikely to have said in the meeting on 14 November that he had to move because he had complained about Miss Agrwal. While again this was in the Claimant’s written evidence, he did not confirm it in his verbal evidence. 56.7. What Miss White may have said to Ms Lowe about getting rid of/managing divisive people is not relevant to Mrs Goodey’s reasoning. We consider that this was Miss White boasting after the fact, if it happened at all. She was not involved in the decision. 56.8. We consider it is implausible to suggest that Mrs Goodey was discomfited by the allegation about Miss Agrwal which had happened some months before. There is an argument that Mrs Goodey’s own feelings of exclusion by language may have motivated to move the Claimant, but we find that not to have operated on her mind, given that she had to deal with a pressing operational need and had no other obvious option. 56.9. Mr Francique, the borough director, later (on 29 November) agreed to pause the move to Bevan. Then senior nurses required that the Claimant move anyway but to Connolly. Thus it was still the Claimant who had to be moved. We wondered whether that fact undermined the operational reasons Mrs Goodey put forward. We have concluded that it did not because, by this time, the Bevan staff member, KC, had moved to his spot on RSW, and, because there was no one else on RSW who could be moved, there then had to be a shuffle around – hence the Claimant went to Connolly. 56.10. The laughing emojis at 292 between Mrs Shahzad and Mrs Goodey suggest somehow that they had got the last laugh by moving the Claimant. From their point of view, he had refused a reasonable management instruction, had initially ‘got his way’ by having the move paused by the borough director but then been moved anyway. We think this a response to the Claimant’s refusal rather than any antipathy to him because of his far earlier complaint.

[57]We find the temporary redeployment of the Claimant to Bevan ward was for the needs of the service and because RSW was the best-placed ward to help and the Claimant was the best-placed nurse on RSW to help. We find that this decision was not materially influenced by the fact of his earlier complaint about racial remarks. Request to Move to Bevan

[58]Managers had three meetings with the Claimant about the proposed redeployment.

[59]First, on 2 November, 291. The Claimant stayed silent at this meeting. He says he was in shock but accepts that Mrs Goodey could have taken his silence as agreement, as she seems to have done by reference to the text at 291 dated 2 November: ‘Claimant is a go. Was ok with the news’

[60]Second, on 14 November. At this point the Claimant talked about his wish to find a job elsewhere. He felt he had made it clear he would not go to Bevan. At the end of this meeting Mrs Goodey said she was left feeling he was not in full agreement: we find the Claimant was clearer than this. Mrs Goodey knew he had not agreed. (We rely on our findings about what she wrote on 20 November to support this conclusion – which we will come to a little later.)

[61]At that point the start date on Bevan was going to be the week beginning 22 November. Refusal of a Break

[62]Later, on 14 November, the Claimant asked for a break at around 4pm after starting at 730am. Nurses always do 12 hour shifts. They are due a 1 hour unpaid break. He was the only nurse on RSW due to sickness of another nurse. He was due to finish at 7.30/8pm after handover.

[63]Mrs Goodey says he asked to go home for the last 4 hours of his shift. We do not accept this. When she first responded, in cross examination, she referred to him asking for ‘a break’ and we find this is the truth of it. Mrs Goodey also saw that he was distressed. They spoke for some time. She remembers that he could not go on the break. He remembers her explaining that they were busy (as he put it in his internal complaint). She cannot remember why but thinks the reason may have been operational. We note that this issue arose on same day as she understood the Claimant was refusing to move to Bevan. Mrs Goody was the DSN that day which meant she had an overview of other wards and could have looked for cover for the Claimant. She cannot remember whether or not she did so.

[64]The Claimant says that not being allowed a break was unusual. We accept this: breaks are important in such a long shift. We do find that on occasion they cannot be accommodated although of course the Claimant was entitled to one.

[65]On balance we find Mrs Goodey did not make an effort to find cover for the Claimant’s break. She cannot remember doing so. She was wrong in her suggestion that he wanted to go home. We find his recollection on this is clearer. We find it likely she probably had no good reason for refusing his break and did not go to the effort of looking for cover for him because she was annoyed (understandably) about him refusing to move to Bevan. She used the excuse of it being busy. Her thinking was likely – if he refuses to help me out, why should I go to the effort to help him out? Further meeting

[66]Third, by 20 November (Mon) Mrs Shahzad and Mrs Goodey talked about when the Claimant would start on Bevan. (The nurse swapped out, KC, was going to start on Wednesday 22 November.) Mrs Goodey replied ‘he is in tomorrow (Tue). I think we have to meet with him together and say he starts in Bevan Wednesday [22] …. Talking to him alone doesn’t work. I am trying to find the letter we have to write so we can give that to him also’. This reflected that Mrs Goodey understood the Claimant had refused. By this time she realised it had simply to be an instruction to move – talking to him about it had not worked.

[67]On 22 November KC came across from Bevan to RSW as originally planned. Mrs Shahzad wrote to Mrs Goodey asking her to send the Claimant over to cover Bevan that day and to agree the move. The Claimant was working on RSW: Mrs Goodey told him to handover to Miss White and he did not like that. The Claimant refused the instruction to go. A difficult meeting with Mrs Goodey ensued. Both parties see it differently.

[68]In evidence the Claimant said he felt forced to go to Bevan. He had always described Mrs Goodey’s behaviour as aggressive and bullying, giving detail about it in the internal investigation (350); however, what he did not include in that detail is the allegation in his witness statement that she told him to ‘fuck off the ward’. She denies those words. We find they are so striking that if they had been said they would have featured as more than merely a reference to ‘derogatory’ language in his earlier complaint. On balance we find that, in the argument, she did not use those words.

[69]The Claimant insisted that he be given a letter of instruction to move. Mrs Goodey said it was her decision and that was that: effectively, the time for talking was over and her decision was final. We think it is likely that, as the Claimant recalled, she did say words to the effect: ‘I need to do what I have to do. I have struck your name out of the rota and a replacement staff has taken over from you. I cannot tolerate you any more on this ward. I have met with you and told you. My decision is final, nothing can change it. Who are you to question me? You cannot challenge my decision.’ This sounds plausible to us: and makes sense in context: Mrs Goodey had tried in two earlier conversations to persuade the Claimant; she needed him to go that day; Bevan needed him; she was the manager and regarded it as a reasonable instruction and the time for talking was over. She probably did say at this stage that she did not I don’t owe him any explanation and to just leave. She had reached the end of the process and was giving an instruction.

[70]We also find that Mrs Goodey’s recollection is right that the Claimant is likely to have raised his voice and repeatedly shouted, ‘No, no, I won’t do it…’ ending up accusing her of treating him like a slave. We find that at no point in these 3 meetings did he open up to Mrs Goodey and tell her the real reason for his refusal to go to Bevan – his fear of being triggered in relation to childhood memories. He did not have the kind of relationship with her that would have allowed him to do that. From his point of view he had a good personal reason not to go. From her point of view he was denying a reasonable management instruction. Both, in a sense were right – hence the impasse and argument. Neither behaved well. 22 November Meeting with Miss Lingard

[71]Sensibly, Mrs Goodey involved Miss Lingard, a senior nurse. We found her to be a clear, confident, intelligent manager. We find that she adopted a calm approach to the problem. She did not know the Claimant and did not know that he had made the prior complaint.

[72]She took a different approach with Claimant: trying to identify with him the positives in such a move; emphasising the support he would be giving to Bevan. She gave him no choice in the move: seeing it as a reasonable management instruction given the operational need, but effectively managed him into a reluctant concession. She did not need to say I can force you to go sick. That was neither her aim nor her style.

[73]Thus, Mrs Goody was able to write the letter to the Claimant at 297-299 ‘thanks for your support’ 2 days after the argument, because she understood Claimant had agreed with Miss Lingard to go.’ The first day of work on Bevan was to be Thursday 30 November. She confirmed it was not a permanent move but for 3-6 months. Miss Lingard also wrote an email confirming their meeting, ‘we talked through the needs of the service and the reasonable management request to re-deploy staff to meet the needs of the service … I now understand you have made arrangements to commence on Bevan…’ Thus by end 22 November, the Claimant knew he was to go to Bevan. Annual Leave Request

[74]The annual leave policy says that annual leave should be sought with double the notice than the leave. The policy did not mean that annual leave could be granted on shorter notice – just that there was no right to such leave.

[75]In order to avoid going to Bevan, on Thursday 23 November 2023, 370, the Claimant asked Ms Commodore for 2 weeks’ leave for the following Monday start. She texted her agreement and told him to sort out the details with Chika, his supervisor. From his point of view therefore his manager had authorised leave. We note Ms Commodore had said yes, not left the decision to Chika. He had given very short notice, which meant he could have been refused, but that did not mean that somehow his allowed leave was invalid. Ms Commodore later denied to other managers that she had agreed this leave. Thus they had a different point of view to the Claimant.

[76]Once they discovered the Claimant was on leave, Mrs Goodey and Miss Lingard queried it. We find they did so because there was an operational need for the Claimant to work on Bevan and they had understood he would do so and they felt the ward manager on Bevan should have had a say over the leave.

[77]On 24 November Ms Commodore texted the Claimant that managers had queried the leave and she was going to call him. He denies that this call happened but Ms Commodore wrote to Mrs Goodey and Miss Lingard on the same day to say that she had ‘liaised with Claimant to inform him about the cancellation of his AL. He raised no objections.’ Whether she is right or wrong about that, that is what Mrs Goodey and Miss Lingard understood about the Claimant’s leave at that time. They genuinely thought, because Ms Commodore had told them, that it had been cancelled. 27 November 2023

[78]The Claimant raises his concerns with Mr Francique, borough director, who paused the move to Bevan ‘while the matters you have highlighted be looked into’. Mrs Shahzad was to meet with him and he said to the Claimant ‘…due to pressures there may be a need for redeployment to another ward but the options and circumstances will be fully discussed with you.’

[79]We do not find that Mr Francique allowed the annual leave. The Claimant suggests, somewhat unclearly, that he did but there is no mention of this in any of the documents as we find there would have been if Mr Francique had done so.

[80]After Mr Francique’s decision, Miss Lingard told Mrs Shahzad to tell Claimant he was going to Connolly (the female equivalent of RSW). On 29 November she let the Claimant know. He refused completely to go to Connolly. She asked him to come in to discuss and he said he was on annual leave. From his

[81]Again there are different points of view here. We find the reason why Miss Lingard told the Claimant to go to Connolly was that this was suggested by Mrs Shahzad. She needed someone to replace KC who had moved from Bevan to RSW. There was a shuffle around to accommodate the Claimant at Connolly. We find again this decision was organisational. It is unfortunate that Mr Francique suggested to the Claimant there would be consultation when Miss Lingard and Mrs Shahzad presented it as an instruction, but that is not enough for us to draw an inference that there was another non-organisational reason for this move.

[82]The Claimant was not forced into work and returned on 12 December (the end of the leave he thought had been allowed) and worked on the place of safety unit until he left his employment with the Respondent.

[83]The Claimant made a formal grievance on 4 December 2023, this included complaints about the comments made by Miss White as well as those alleged against Miss Agrwal. Resignation

[84]Meanwhile, the Claimant had applied for a job with an NHS Trust in Kent. It was agreed between the representatives that he was informed of his success subject to employment checks, on 21 December 2023, i.e. before his resignation on 6 January 2024. On 19 January 2024, he received written confirmation of his successful application as a Community Mental Health Nurse Band 6. This was a promotion and nearer to where he lived. The Claimant worked his notice until 1 March 2024.

[85]The Claimant worked bank shifts on RSW afterwards. His explanation for why this was that he could pick and choose his shifts and it was different to being managed as a permanent member of staff.

[86]We find that the Claimant’s sole reason for leaving was to gain promotion. Specifically we do not consider that he had in mind Miss White’s remarks or the refusal of a break at that point. This is because he continued to work and do bank work despite the likely presence of Miss White and other managers on those shifts; and that he wanted promotion to a band 6 position and it was this and this alone that led him to resign. Legal Principles Victimisation

Legal Principles

[87]Section 27 of the EA defines victimisation as follows: ‘(1) 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.’

[88]To find a ‘detriment’ (under section 39 and 27 of the EA) a Tribunal ‘must find that, by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work’ Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

(para 34). An unjustified sense of grievance cannot amount to ‘detriment’ but nor is it necessary to demonstrate some physical or economic consequence. Harassment

[89]Section 26 of the EA provides so far as is relevant to this case: ‘(1) A person(a) (A) harasses another

(b) (B) if— (a) A engages in unwanted conduct related to [race], 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. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;

[90]We must ask the questions posed by the statute in turn.

[91]To establish that the unwanted conduct is ‘related to’ disability the Claimant does not have to show that the unwanted conduct was directed to him ‘because’ of his race, but that there was a connection between the conduct and race, see para 7.9 of the Equality Act Code of Practice (ECHR), and Hartley v Foreign and Commonwealth Office Services 2016 (para 23-24). In that case the EAT held that whether the conduct is ‘related’ to the protected characteristic is a broad test, requiring an evaluation by the Tribunal of the evidence in the round. The alleged perpetrator’s and victim’s perceptions of whether it is related are not conclusive. The precise words and the context are important. It is also open to us to draw inferences if necessary.

[92]The question of whether an act is ‘sufficiently serious' (to quote from the Code at para 7.8) to support a harassment claim is essentially a question of fact and degree. The context is relevant. In Weeks v Newham College of Further Education EAT 0630/11 93. Langstaff P considered that ‘environment' means a state of affairs, which may be created by one incident where the effects are of longer duration (para 21). But at paragraph 17 he observed: ‘Thus, although we would entirely accept that a single act or a single passage of actions may be so significant that its effect is to create the proscribed environment, we also must recognise that it does not follow that in every case that a single act is in itself necessarily sufficient and requires such a finding.’

[94]Whether the conduct violates a person’s dignity is also a question of fact and degree. We note the observations of Underhill P (as he then was) in Richmond Pharmacology v Dhaliwal

[2009] ICR 724

(EAT) at paragraph 22): … We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase… Constructive Dismissal

[95]Section 39(7) of the EA provides that there is a dismissal where the employee terminates the contract (whether by notice or not) in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct. This is known as a ‘constructive dismissal’.

[96]An employee is entitled to terminate without notice (treat himself as constructively dismissed) when the employer has committed a repudiatory breach of contract, Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

, namely: ‘a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract’.

[97]Here the Claimant relies on the implied term existing in all employment contracts ‘the employer shall not without reasonable and 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’, see Malik v BCCC SA

[1998] AC 20

, 34H-35D (Lord Nicholls).

[98]A breach of this implied term is inevitably a repudiation of the contract, see Browne-Wilkinson P in Woods v WM Car Services (Peterborough) Ltd

[1982] ICR 666

, 672A. The test of whether there is a breach of it is objective, and not dependent on the employee’s subjective view.

[99]We also have regard to the principle that a course of conduct can amount to a breach of the implied term: individual actions may not in themselves be sufficient but taken together may have the cumulative effect of such a breach. The last incident relied on does not need to be serious (a breach in and of itself), see Lewis v Motorworld

[1986] ICR 157

, but it must contribute, however slightly, to the breach of the implied term, Omilaju v Waltham Forest LBC

[2005] ICR 481

. This is an objective test: even if the employee finds it hurtful, if the last act is entirely innocuous it is insufficient.

[100]If there is a repudiatory breach the employee must show that he resigned in response to the breach or, at least in part, in response to the breach: Nottinghamshire County Council v Meikle [2004] ILRR 703 CA. As it was put in Wright v North Ayrshire Council para 20: Where there is more than one reason why an employee leaves a job, the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.

[101]After any repudiatory breach the employee has a choice, either to affirm the contract and continue to work or to accept the breach and resign and treat himself as dismissed. Similarly after a last straw. Delay may be evidence from which we infer affirmation because, by working and receiving a salary, the employee can be said to be doing acts consistent with further performance of the contract and therefore affirmation of it. But he is not bound to elect within a reasonable or any other time, WE Cox Toner Ltd v Crook

[1981] ICR 823

EAT. Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation: Allen v Robles

[1969] 1 WLR 1193

. Affirmation of the contract can be implied. … However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation: Farnworth Finance Facilities Ltd v Attryde

[1970] 1 WLR 1053

.’ Thus where a party raises a prompt grievance it may be per Farnworth that there is no affirmation.

[102]Under the statute a breach be accepted by the giving of notice, see section 39(7)(b) and confirmed in Buckland v Bournemouth University

[2010] IRLR 445

CA.

[103]If the Claimant identifies a last straw but we decide it was not a problem, this is not the end of the matter. We must go on to look for the last act that we consider contributes to the conduct amounting to the breach. If there is no affirmation after it then the breach is established, see Williams v Governing Body of Alderman Davies Church in Wales Primary School

[2020] IRLR 589

EAT.

[104]To summarise: If there is a ‘last straw’ and no affirmation after it, the Claimant can refer back to earlier events, see Lewis, above. This was restated in Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

. At para 55 Underhill LJ set out a sequence of questions, which you may want to follow (I have adjusted it to deal with the Williams point above). Personally I think Lewis v Motorworld will do. 1. What was the most recent last act or omission which triggered the resignation and was not objectively trivial. 2. Has he affirmed the contract since then? 3. If not, was the last act a repudiatory breach on its own. 4. If not, was it nevertheless part of a course of conduct, which viewed cumulatively amounted to a breach of the implied term. The Tribunal does not need to consider possible previous affirmation if it has identified a later last straw. 5. Did the employee resign in response or partly in response to that breach?

[105]What of acts contributing to the fundamental breach that are discriminatory? Is, then, the dismissal discriminatory? The test is whether the discriminatory conduct ‘materially influenced the conduct that amounted to the breach’, see Auerbach HHJ in Williams (above) para 89 or was a ‘sufficient influence’ para 90, approved by Cavanagh J in De Lacey v Wechseln Limited t/a The Andrew Hill Salon

UKEAT/0038/20/VP

/V para 69. Application of Facts and Law to Issues

[106]We have found Miss White did make the remarks alleged, though he did not report them to Mrs Goodey.

[107]It follows from our findings of fact that issue 5.2 does not succeed because we have not found that Miss Agrwal made the remarks as alleged.

[108](Original harassment issues 5.3 and 5.4 are now alleged as victimisation).

[109]Miss White’s remarks and conduct in showing dissatisfaction were plainly unwanted conduct. The Claimant was shocked and upset by them.

[110]This unwanted conduct plainly related to race because her comments were about black African nurses.

[111]On the facts we have found, in our judgment it was probably not Miss White’s purpose to violate dignity or create the proscribed environment with her behaviour. She said what she said, in the way that she said it out of frustration that some of the African nurses on RSW were wont to speak in their first language to each other, leaving her feeling excluded and paranoid.

[112]Did her conduct nevertheless have the effect of violating dignity?

[113]First, we all agree these remarks are not so unfortunate or trivial that they fit with the Dhaliwal guidance. They were a statement of Miss White’s opinion. They were hostile. They were made openly to the Claimant when he was newly appointed on the ward to his first band 5 post. This was an important time in his professional career. While they were one-off they were not transitory in sense that they showed the hostility of the senior nurse on the ward. They were such that the Claimant felt he had to respond, defending his appointment on merit: this felt demeaning. He interpreted Miss White’s comments (along with her tone of dissatisfaction) as her questioning whether he was appointed on merit. He was shocked.

[114]We find it objectively reasonable for Mr Ajao to have experienced the conduct in that way: the effects we have described were not only his subjective experience but it was reasonable for the conduct to have had those effects. He was not being overly sensitive: he was interpreting the comments reasonably.

[115]What means that Miss White’s remarks and conduct meet the threshold of a violation of dignity is her hostility and reducing Mr Ajao to a category referenced by his race rather than an individual fellow professional. She did this through her dissatisfaction and the reference to race. Miss White treated him as ‘another black African nurse’ rather than a fellow professional; referring to his origin as a label and using it to show dissatisfaction. This amounted to significant disrespect.

[116]Her language frustrations do not, in our judgment, reduce the seriousness of the remark in this case. There is no evidence that, when Miss White made the remark, she knew whether Claimant shared language with others or had used it. While Miss White probably does not have ‘racist’ views, she expressed her frustrations in an offensive way relating to race. She treated a fellow professional in a hostile demeaning way a way that violated his dignity. If she imagines turning the remark around and being treated that way at the start of her career by a senior nurse, she would understand the violation of dignity the Claimant describes.

[117]Thus it follows that we have found the remarks made by Miss White were unlawful harassment relating to race.

[118]In relation to the remarks we have found that Miss Agrwal said (a neutral reference to the lack of cultural diversity on the ward), these were not such that they could be objectively seen to have the effect of violating dignity or creating the proscribed environment. Her observations were no more than stating facts: that there was a predominance of black African nurses. They were said neutrally and not directed at the Claimant. Victimisation

[119]The claimant did a protected act when he complained about Miss Agrwal to Mrs Goodey in August 2023. Plainly he was complaining of race discrimination and that comes within section 27 of the Equality Act 2010.

[120]We find Mrs Goodey satisfactorily investigated the claimant’s complaints by speaking to all those involved and reaching a view that it was open to her to reach. Specifically, she spoke to Miss Agrwal about both the comments and the performance concerns. It was appropriate to do this after speaking to Ms Azeez, as it was to Ms Azeez that the comments were alleged to have been made.

[121]While in an ideal investigation, Mrs Goodey would have documented the steps she took, involved HR, and given the Claimant a written conclusion, these procedural inadequacies did not undermine that she had in fact investigated the matter adequately.

[122]We conclude on our analysis of the facts, this issue does not succeed.

[123]We have struggled to decide whether the attempt to redeploy the Claimant temporarily to Bevan ward was a detriment.

[124]On the one hand: plainly the contract allowed managers to do so; some nurses would have seen it as a good development opportunity; temporary redeployments of this nature were part and parcel of working as a team; Bevan had greater staffing levels for support; and the move was only temporary.

[125]On the other hand: it was not as attractive to work on Bevan ward as RSW for some nurses because the patients there were very unwell and had a greater potential to express their trauma violently: the need for restraint training illustrates this. Plainly, for Claimant and his subjective experience of childhood violence, this would present as a detriment. But his subjective view is not the test.

[126]Concentrating on the Shamoon test, we have considered what a reasonable employee ‘might’ have considered to be to his disadvantage. This test is not a contractual test and we conclude a reasonable employee might have (albeit not necessarily would have) found a request to move to Bevan even temporarily for a few months to be a detriment because the ward was not as attractive to work on in the sense that it was not as calm and there was greater potential for the need to use restraint techniques.

[127]What we are clear about, however, in our findings of fact is that the protected act (the complaint in August) was not part of the reason for the move. As we have found, there were clear operational reasons for needing a nurse from another ward and selecting RSW and selecting the Claimant from RSW.

[128]We find therefore that the Claimant was not unlawfully victimised by the attempt to redeploy him to Bevan.

[129]It seems to us that it was to subject an employee to a detriment in not to afford them a break in a 12 hour shift. (While we understand that sometimes it is unavoidable, again that is not the test). It is plainly to a person’s disadvantage in the way in which they have to work not to be allowed a break, especially in such a long shift where the employee is responsible for patient safety.

[130]Nevertheless, we again find that this refusal of a break (or more accurately, Mrs Goodey’s failure to look for cover for the Claimant’s break) was because he had refused to be redeployed to Bevan. It was nothing to do, in her mind, with the protected act.

[131]We find therefore that the Claimant was not unlawfully victimised by the refusal of the break.

[132]The Claimant argues that the requirement he reallocate to Bevan just on 22 November 2023 was victimisation.

[133]On this point we consider it was not a detriment to have one shift reallocated for 1 day. The Claimant himself acknowledges that he could be asked to move between wards on a short basis for cover. It seems to us that this is where the Claimant’s subjective experience (his childhood trauma) and what a reasonable employee might think part company. A reasonable employee might not consider that reallocation for one day was a detriment: they would see it as part and parcel of working as a team for the needs of the service on that particular day. The balance therefore shifts in our analysis because of the much shorter period.

[134]In any event, we have found that this shift re-allocation was because Bevan needed a more senior nurse and his prior complaint was not part of the reason for it.

[135]We find therefore that the Claimant was not unlawfully victimised by the shift reallocation on 22 November 2023.

[136]On Mrs Goodey and Miss Lingard recalling the Claimant from leave, we have found that Claimant and his managers had different information about whether that leave had been authorised.

[137]The Claimant thought that Ms Commodore had authorised his leave by text. It was understandable therefore that he was reluctant to return.

[138]Nevertheless, we consider it reasonable that the managers queried leave because it was granted without proper notice and without the manager of Bevan ward being consulted. It was, after all, Bevan where the Claimant would have been working during the period of leave. This was the Claimant’s effort to avoid redeployment: a reasonable employee would have recognised that these factors meant leave might not have been properly authorised and could be queried and that he could be recalled. Thus the Claimant was not subject to a detriment by having the leave queried or recalling him from leave.

[139]If we are wrong about that. Our findings of fact are that plainly the leave was queried and the Claimant recalled from it for good operational reasons not materially influenced by the protected act. First that the wrong manager had authorised the leave. Second that Ms Commodore had told them she had contacted the Claimant, cancelled the leave and that he had agreed.

[140]We find therefore that the Claimant was not unlawfully victimised by the querying of leave or recall from it.

[141]On whether Mrs Goodey used derogatory language (telling the Claimant to ‘fuck off’). This element of the issue fails on our findings of fact.

[142]On issues 5.3.1 and 5.3.2, we have found she probably did say those words. The context was that she had reached the point where she had to instruct Claimant to move temporarily to Bevan, having failed twice before to persuade him to agree. She had good operational reasons for choosing him and he had not given her his personal reasons for refusing to go. She was understandably frustrated by his refusal. Further, these were words used in an argument in which both were raising their voices and the Claimant was saying no over and over.

[143]On balance we do not consider these words subject the Claimant to a detriment. We have concluded that a reasonable employee might not have seen disadvantage in the circumstances that they had to work in future if they had taken the context into account. A reasonable worker would have seen that they were being subject to a reasonable management instruction and had refused it twice before and that these were words used at that point at which the conversation had descended into an argument on both sides. (That the Claimant subjectively had good reasons for not going does not change our conclusion because he had not shared these with Mrs Goodey).

[144]Even if we are wrong about detriment, we would have found that the protected act did not influence Mrs Goodey to use these words. We find that she did not have in her mind the earlier complaint when she behaved like this – it was purely her frustration at the Claimant’s refusal that led to her losing her calm. They were her clumsy way of making it clear that she was now instructing him to go as his manager and that managers could give such instructions.

[145]We have found on the facts that Miss Lingard was not aggressive in the meeting on 22 November 2023 and therefore this issue fails on the facts. Nor did she say the words alleged. While she did not give the Claimant a choice about moving, she was entitled not to do so as it was a reasonable management instruction. Issue 14 – constructive discriminatory dismissal

[146]Miss White’s conduct means that there was breach of the Malik term. It was behaviour for which the Respondent was obviously vicariously liable: a comment made during working hours between colleagues. It was during work and about work and closely associated with her position as a senior nurse commenting on the Claimant’s position and his arrival on the ward as a new employee. It would in our judgment have seriously damaged the trust and confidence between employer and employee being a violation of dignity relating to race. It was done in November 2022.

[147]Equally plainly the Claimant by his subsequent actions affirmed the contract: he made no internal complaint at the time and continued to wor. He only eventually made an internal complaint about it on 4 December 2023.

[148]What of the other matters of complaint?

[149]First, it was not a breach of contract to make the temporary redeployment demand. It accorded with the express term as to location and there was sufficient consultation here for a temporary move. In any event, for the operational reasons we have already set out, the Respondent had reasonable and proper cause for making such a demand so there would have been no breach of the implied term in relation to it on its own.

[150]Second, the querying and recall from annual leave. We have found this not to have been a detriment. While a different test, for the same reasons we do not find that this would have seriously damaged trust and confidence for the same reasons as we have found it was not a detriment. In any event, if we are wrong about that first leg of the test, there was plainly reasonable and proper cause to query and recall: namely that the wrong manager had authorised it and insufficient notice had been given.

[151]As to the refusal of the break. There was plainly no reasonable and proper cause for Mrs Goodey’s failure to look for cover for the Claimant to take his break: it was just because he had not helped her that day. Such behaviour on 14 November was probably a breach of the implied term: breaks are an important health and safety feature; the shift is a long one; the context is responsibility for safety of patients on the ward. Though we acknowledge breaks are not always possible and the absence of the other nurse made it difficult, it was the failure even to look for cover that was the breach. We find this would have been likely to seriously damage trust and confidence, even as a one-off. But, even if not a breach in and of itself it would qualify as a last straw, being more than innocuous.

[152]The Claimant was off work and then returned. He put his internal complaint in on 4 December, including about the break refusal. He resigned on 6 January after discovering he had obtained a promotion. He continued to work bank shifts on RSW afterwards.

[153]We do not find that he had been working so long that this alone affirmed the contract after the last straw – given his being away from work and his early complaint about it on his return.

[154]Nevertheless we have considered the factors that led to the claimant resigning. We have found that the only reason for him leaving was his promotion. While we are satisfied that he had a genuine complaint we are also satisfied that he wanted to progress. He had already applied for one promotion at the Respondent after Miss White’s breach. We find, despite the refusal of the break, if he had not got the promotion he would not have left his employment with the Respondent. We are reinforced in this conclusion by the fact that the Claimant continued to work bank shifts with it after his resignation. While those bank shifts were not as employee, they showed it was not intolerable for the Claimant to work for it and that his trust in them (albeit as a casual worker) had not been destroyed. We are satisfied that the reason he left was promotion not the matters about which he had internally complained. We do not consider this is a case where he left partly for the new job and partly because of dissatisfaction: we are clear he resigned wholly to take up the new job.

[155]It follows from that conclusion that the Claimant’s constructive discriminatory dismissal claim fails. Issue 4: Time

[156]The only finding in the Claimant’s favour is on issue 5.1 that the claimant was unlawfully harassed in November 2022.

[157]On Issue 4.1, the claim about this act was presented outside the primary time limit of three months plus time for ACAS EC. At best the act was at the end of November 2022. Thus, ACAS EC should have commenced at the end of February 2023 and proceedings brought by the end of March 2023. In fact ACAS EC started on 19 February 2024 ending 23 February 2024 and the claim was presented on 8 March 2024 i.e. at least 11 months out of time.

[158]We must therefore address ourselves to the question at issue 4.4: were the claims made within a further period the Tribunal thinks is just and equitable. We consider the reason for the delay and other relevant factors.

[159]The Claimant let the matter slide at the outset. We understand why he did so: no employee wants to start their permanent role in their new profession with a race discrimination complaint. Putting one’s head above parapet is difficult. It exacerbates relationships, when, at the start, one wants to build relationships. The Claimant got on with work and only made his complaint about Miss White internally and to the Tribunal when other events occurred that he thought reasonably were discrimination. While we have found against him on those other events, we the Claimant had a good reason for the delay. It was arguable that those other matters may have been discriminatory and he raised prompt complaints about them.

[160]We look then at the factors for and against extending time.

[161]Plainly the main factor in favour is the merits: namely, that the Claimant was racially harassed in November 2022.

[162]There are however factors against extending time. First, the delay in complaining about this particular event: but this is not a case where memories really have faded. Miss White was clear in her denial. The Claimant was clear about what he recalled she had said. Second, the delay in the internal complaint until 4 December 2023. But, as we have said, the Claimant waited until other events occurred which was understandable.

[163]Balancing those factors we find that the strength of the merits outweighs the other factors. We conclude it is therefore just and equitable to extend time.

Remedy

[164]The remedy here is injury to feelings with any interest.

[165]We have considered the injury to feelings experienced by the Claimant in relation to Miss White’s behaviour only. He was shocked, humiliated, and demeaned. We have found his dignity to have been violated. The remark could be interpreted to doubt whether he had been appointed on merit as opposed to identity. The dissatisfaction in Miss White’s approach suggested hostility. Nevertheless he was able to challenge the remark at the time and continue to work with Miss White for over a year. They likely did not have a good working relationship but it functioned. The Claimant let the matter slide and got on with the job. He made no complaint about it until over a year later after the other events. Undoubtedly, it made his experience of arriving on the ward and gaining the Band 5 grading on his professional registration worse. He did not take time off or seek medical advice. His blood pressure only went up in November 2023. His description of his hurt feelings in November 2023 was based more on the matters we have not found to have been discriminatory. It did not feature at all in his reasons for leaving work.

[166]His experience was that after leaving he went to Nigeria, he spoke to a Pastor in a form of counselling and experienced relatively short-lived depression. We find this experience was about the later events not this early remark.

[167]Overall injury to feelings is a difficult assessment to make. While all harassment is serious, we consider the injury to feelings experienced here are relatively minor in gravity. We therefore start in the lower Vento band and near its lower end. This was one comment which, while it violated dignity, was hostile and impacted on the Claimant’s feelings about the start of his professional career, nevertheless left the Claimant able to continue to work. We award £3,000 in injury to feelings.

[168]It is open to us to increase or decrease any aware where there has been a relevant, unreasonable failure to comply with a relevant ACAS Code by either party.

[169]Here we have not decided to award any increase or decrease.

[170]First while we have identified some failures by Mrs Goody of procedure (documentation; referring to HR) we find if they did breach the ACAS Code on Grievance, event we find they were not in relation Miss White’s comment and we do not therefore consider it would not be just and equitable to increase the award.

[171]Second, the Claimant did fail to make a prompt internal grievance about Miss White’s conduct, but we have found that failure was not unreasonable, for reasons already given, so we do not decrease the award.

[172]After giving oral judgment, the parties helpfully agreed interest on the award at £561.53. Approved by Employment Judge Moor Dated: 28 April 2025 Final Agreed List of Issues INTRODUCTION By way of an ET1 lodged on 8 March 2024, the Claimant brings claims of:a. Direct race discrimination, under section 13 of the Equality Act 2010 (‘EqA 2010’);

b. Breach of contract. By way of an ET3 and Grounds of Resistance lodged on 14 June 2024, the Respondent resists these claims. The breach of contract claim was withdrawn on 10 October 2024. By way of an amendment to claim submitted by the Claimant on 16 October 2024, the claim of Harassment, under section 26 of the EqA 2010 and victimisation, under section 27 of EqA 2010; and were added. The Respondent does not object to the Claimant’s amendment application to the extent the amendments are set out in this list of issues. JURISDICTION Time Limits 3. Given the date the claim for was presented and the dates of early conciliation, any complaint about something that happened before 20 November 2023 may not have been brought in time. 4. Was the discrimination complaint made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 4.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 4.2. If not, was there conduct extending over a period? 4.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 4.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable. The Tribunal will decide: 4.4.1. Why were the complaints not made to the Tribunal in time? 4.4.2. In any event, is it just and equitable in all the circumstances to extend time? CLAIMS Harassment related to race – s26 EqA The Claimant pursues these claims in the alternative 5. Has the Claimant established that the following conduct occurred as alleged? 5.1. Melanie White making remarks about Black African nurses to the Claimant in November 2022 (as reported by the Claimant to his line manager, Tina Commodore and Lucy Goodey); 5.2. Aarti Agrwal making remarks about there being too many black nurses on the ward and not wanting to take any instructions from Black nurses and stating she would implicate them (as reported by the Claimant by email to Tina Commodore and Lucy Goodey); 5.3. [now V] Lucy Goodey being aggressive and using derogatory language towards the Claimant in a meeting on 22.11.2023; Specifically, Lucy Goodey said to the Claimant: 5.3.1. “I need to do what I have to do. I don’t owe you any explanation just leave, you cannot challenge my decision. I have struck your name out of the rota and a replacement staff has taken over from you.” 5.3.2. “I cannot tolerate you anymore on this ward. I have met with you and told you my decision is final, nothing can change it. Who are you to question me?” 5.4. [now V] Rebecca Lingard being aggressive towards the Claimant in a meeting on 22.11.2023; specifically, Rebecca Lingard said to the Claimant “I will force you to go off sick if you don’t report on Bevan”. 6. If so, was that unwanted conduct? 7. Did it relate to race? 8. 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? 9. 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. Victimisation – s27 EqA 2010 10. Did the claimant do a protected act as follows: 10.1. Reporting racial comments made by Aarti Agrwal and Melanie White to Lucy Goodey in August 2023; 11. Did the respondent do the following things: 11.1. Lucy Goodey’s failure satisfactorily to investigate the Claimant’s complaints; 11.2. Lucy Goodey’s attempt to redeploy the Claimant; 11.3. Lucy Goodey refusing the Claimant his break during his shift on 14.11.2023; 11.4. Lucy Goodey re-allocating the Claimant’s shift on 22.11.2023; 11.5. Lucy Goodey and Rebecca Lingard, between 24.11.2023 and 04.12.2023, asking Tina Commodore and Maham Shazhad to recall the Claimant from his annual leave. 12. By doing so, did it subject the Claimant to detriment? 13. If so, was it because the Claimant did a protected act or the Respondent believed the Claimant had done, or may do, a protected act? Constructive Discriminatory Dismissal – s39(2)(c) EqA 2010 as harassment relating to race and/or victimisation. 14. Do the above acts at paragraph 11 amount to repudiatory breaches of contract by the Respondent on the basis that the Respondent has breached the implied term of trust and confidence, such breach constituting a further discriminatory act? 15. By his resignation on 6 January 2024 and his employment ended on 1 March 2024, did the Claimant accept the breach and accordingly the termination of his employment amounts to a discriminatory dismissal within the meaning of section 39(2)(c) and (7)(b) of the EqA 2010? 16. Did the Claimant waive any breach and affirm the contract? REMEDY 17. If the Tribunal finds that Claimant's claims under the Equality Act 2010 are well founded, how much should the Claimant be awarded?: 17.1. What financial losses has the discrimination caused the claimant? 17.2. Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 17.3. If not, for what period of loss should the Claimant be compensated? 17.4. Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 17.5. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 17.6. Should interest be awarded? If so, how much? 17 February 2025

REMEDY

[1]The claim for harassment in relation to the comments made in November 2022 succeeds, but not otherwise. The victimisation claims do not succeed.

[3]The constructive dismissal harassment and victimisation claims do not succeed.

[4]The direct race discrimination claims are dismissed upon withdrawal.

[5]The breach of contract claim is dismissed upon withdrawal.

[6]The Respondent must pay to the Claimant the sum of £3,561.53 comprising, £3,000 for his injured feelings and £561.53 interest with no ACAS Code increase or decrease. Case No: 3200591/2024 Approved by: