Ms A Z Kweyama v Central and North West London NHS Foundation Trust: 3319570/2019

EMPLOYMENT TRIBUNALS

Case No 3319570/2019

Between

Ms A Z KweyamaClaimant

Central and North West London NHS Foundation TrustRespondent

Before

Employment Judge George: Mr T Poil; Mr A Kapur

Ms N Motraghi (instructed by counsel) for respondent

Date 21 February 2023

JUDGMENT

[1]The claim of unauthorised deduction from wages is dismissed upon withdrawal by the claimant.

[2]The respondent subjected the claimant to race-related harassment by the following unwanted conduct:a. On 9 February 2019 by a nurse saying to the claimant. "You need to get a pool of bleach and bleach your skin so that you come back tomorrow white and the patients will be nice to you";

b. On 10 February 2019 by the same nurse who was overheard saying "I do not care let her go into bleach her skin, I am sick and tired of people coming to work and said they are not well”;

c. On 22 February 2019 by the deputy lead nurse for offender care saying that she was concerned about the claimant's mental health because some of the words used in her statement to complain of the above race related harassment were worrying.

[3]The complaint of direct race discrimination is not well founded and is dismissed.

[4]The respondent victimised the claimant by subjecting her to the following detriments:a. the comments of the nurse in charge, as set out in paragraph 2.a. and

b. of the judgement, above; b. by the comment of the deputy lead nurse for offender care set out in paragraph 2.c. of the judgment, above;

c. by the deputy lead nurse for offender care telling the claimant on 21 February 2019 that her agency role was being terminated.

REASONS

[1]Following a period of conciliation that started on 7 May 2019 and ended on 6 May 2019, the claimant presented a complaint on 21 June 2019 of unlawful treatment contrary to s.41 of the Equality Act 2010 (hereafter referred to as the EQA) on the part of the respondent Trust where she had worked as an agency nurse between 15 November 2017 and 21 February 2019. The respondent accepted that the claimant was a contract worker within the meaning of s.41 but denied that the events had taken place in the way alleged by her and denied liability for race discrimination, race-related harassment and victimisation in their response dated 13 August 2019. Initially the claim included a complaint of unauthorised deduction from wages based on the claimant’s allegation that she was paid as a Band 5 nurse when it had been agreed that she should be paid as a Band 6 nurse because of supervisory responsibilities. This complaint was withdrawn and we dismiss it by this judgement.

[2]The claim was case managed at a preliminary hearing in private on 26 July 2021 by Employment Judge Milner Moore. The record of that hearing does not include a list of issues but it was agreed by the representatives that the issues to be determined by the tribunal at the final hearing before us were clear from the pleadings. In particular, it was agreed that paragraphs within the amended particulars of claim (pages 62 to 65 of the document bundle), set out the specific allegations which are said to be unlawful acts contrary to ss.13, 26 and 27 of the EQA. It was agreed that the tribunal would deal with issues relating to liability in the first instance only and see whether there was time for matters concerning remedy to be addressed thereafter.

[3]We had the benefit of an agreed bundle of documents which ran to 288 pages. There were a few inserts in the bundle and those were inserted in chronological order so that the numbering actually runs from pages 1 to 279. These reasons use the page numbers that appear on the pages themselves. These reasons do not use the page numbers from the PDF/electronic bundle.

[4]Ms Motraghi prepared a written skeleton argument on behalf of the respondent which was a helpful summary of the respondent's arguments although we had said that it was not necessary for skeleton argument or written submissions to be exchanged. There is, therefore, no criticism of Mr Onibokun that he made purely oral submissions. Ms Motraghi supplemented her written skeleton with oral submissions.

[5]The hearing was listed to take place as a hybrid hearing because some of the witnesses were not available to attend at the hearing centre. On Day one the tribunal converted the hearing to take place solely by CVP. There was a nationwide rail strike taking place during the week of this hearing and the Tribunal and other participants were concerned about transport arrangements.

[6]There was an application by the respondent for one of their witnesses Marta Pitarch to give evidence remotely from Spain. This application was refused. Our reading of the Upper Tribunal case of Agbabiaka (Evidence from Abroad) UKTU 286 and the Presidential Guidance on taking evidence by video of telephone from persons located abroad is that the Foreign, Commonwealth and Development Office (the FCDO) considers there to be a risk of an impact on diplomatic relations if evidence is given from another state without permission of that state. On Day two, the respondent forwarded to us an email that they had received confirming that the FCDO had not yet received a response to their enquiry as to whether the Government of Spain would consent to such evidence been given. Absence of an objection was not permission, in our view, and we considered that it was necessary for us to refuse the application for MP to give evidence remotely from Spain. She travelled to the jurisdiction and gave evidence remotely within it.

[7]The availability of judicial resources meant that the case was allocated to this Tribunal although the Tribunal was unable to sit on the morning of Day two because of a part heard commitment. This was regrettable but necessary to enable the claim to be heard. As a consequence, there needed to be some adjustment of the provisional timetable that had been outlined by Judge Milner Moore. Broadly speaking, the timings were otherwise adhered to, but one or two technical difficulties meant that in the end it was necessary to reserve our decision and list a provisional remedy hearing. In the light of our judgement this hearing will be confirmed and the parties will be asked whether the a provisional time allocation of one day is necessary or whether the time estimate can be reduced.

[8]All of the witnesses had approved written witness statements which they adopted in evidence with some alterations. In addition to the claimant giving evidence on her own account, she relied on the supporting evidence of Amanda Gillett – then Head of Healthcare at the Heathrow Immigration Removal Centre (hereafter referred to as Heathrow IRC) who was not present during the 2019 incidents because she was absent on sick leave but gave evidence about the 2018 incident; and Patricia Walter - employed by the respondent as the Band 6 clinical nurse manager at Heathrow IRC until March 2019. Mrs Walter retired in March 2019, but her last day of work was in fact the end of February. The respondent called five witnesses: Kerry Martin - the deputy lead nurse for offender care; Loretta Suboniene - then a Band 5 nurse who was nurse in charge on Saturday, 9 February 2019; Diane Williams - a healthcare assistant; Marta Pitarch - then interim regional operations manager; and Angela Knee, HR business partner for Diggory division within which Heathrow IRC sits. In general, we refer to relevant individuals by their initials for ease of reference and no disrespect is meant thereby.

[9]It is a feature of the conduct of this hearing that several of the witnesses were doing their public duty to give relevant evidence to this tribunal, despite their challenging personal circumstances. We pay tribute to that unsurprising sense of duty. We say unsurprising, since all of those concerned were healthcare workers or formally healthcare workers and, regardless of the conclusions we set out below, we thank them for helping us to determine the issues in the case despite the personal inconvenience and difficulty that that may have caused them. This underlines the importance of the matters in dispute to all concerned.

The Issues

[10]As set out above, it was common ground that the legal and factual issues were well defined in the professionally pleaded amended particulars of claim; in particular paragraphs 38 to 49 set out the allegations of direct race discrimination, race related harassment, victimization and unauthorized deduction from wages. The unauthorized deduction from wages claim was withdrawn and the remaining issues, those which it was necessary for us to decide, are found in paragraphs 39 to 43. We set them out below, retaining the original paragraph numbering for ease of reference. “Direct Race Discrimination 38. The Claimant relies on her race as a black person. 39. The Claimant was subjected to the following less favourable treatmenta. On 9 February 2019, [LS’s] comments to the Claimant regarding skin bleaching. The comparator is a hypothetical non-black (or white person) in the same role.

b. On 10 February 2019, [LS’s] comments to [DW] regarding skin bleaching, overheard by the Claimant. The comparator is a hypothetical non-black or white person in the same role

c. on 22 February 2019, [KM] criticising the Claimant’s response to her racial abuse. In addition to being victimisation, this shows a contempt for black people when they experience racism. The comparator is a hypothetical non-black or white person in the same role. 40. It is submitted that the comments are of a self-evidently race-based nature. The Claimant also relies on the background information [in her amended particulars of claim] to demonstrate a causal link between the less favourable treatment and the claimant’s race. Harassment (Race) 41. It is submitted that the claimant has been subjected to the following conduct amounting to harassment, contrary to section 26 Equality Act 2010: a. On 9 February 2019, [LS’s] comments to the Claimant regarding skin bleaching. b. On 10 February 2019 [LS’s]’s comments to [DW] regarding skin bleaching, overheard by the Claimant. c. On 22 February 2019, [KM] criticising the Claimant’s response to her racial abuse. In addition to being victimisation, this shows a contempt for black people when they experience racism. 42. The Claimant made the following protected acts: a. Datix in respect of racist abuse from patients on 19 January 2019; b. verbally to [LS] on 9 February 2019 in respect of abuse from the patient; c. Verbally to [JJ] on nine February in respect of [LS’s] remarks on 9 February 2019;

d. Verbally to [MM] on 9 February 2019 in respect of [LS’s] remarks on 9 February 2019;

e. Via a Datix on 9 February 2019 in respect of [LS’s] remarks on 9 February 2019;

f. [No longer relied on by the Claimant];

g. Verbally to [PW] on 13 February 2019 in respect of [LS’s] remarks on 9 and 10 February 2019;

h. In writing to [PW] on 13 February 2019 in respect of [LS’] remarks on 9 and 10 February 2019;

i. In an email to [KM] on 19 February 2019 where the Claimant cites her need for a break;

j. In an email to [ND] on 19 February 2019 where the Claimant cites her need for a break following racial abuse;

k. In a telephone call with [ND] on 20 February 2019, where the complaint of race discrimination was discussed;

l. Via a grievance on 7 March 2019; and

m. Via a grievance on 29 March 2019. 43. It is submitted that the Claimant has suffered the following detriments because of one or more of the protected acts; a. Having the 19 January 2019 complaint ignored; b. In addition to, or in the alternative to harassment and discrimination, [LS’s] remarks concerning skin bleaching on 9 February 2019; c. The Claimant suffering a panic attack on 10 February 2019, following [LS’s] remarks on 9 February 2019; d. In addition to, or in the alternative to harassment and discrimination, [LS’s] remarks concerning skin bleaching on 10 February 2019; e. The Claimant needing to take a break on 19-20 February 2019 due to how she was made to feel at work (resulting in a loss of income); f. On 21 February 2019, being told by [KM] that her reaction to being racially abused was excessive; g. On 21 February 2019, being told by [KM] that her role was being terminated; and h. The Respondent conducting no (or no adequate) investigation into the Claimant’s race discrimination complaints or grievances (in March 2019) following [LS’s] remarks on 9 February 2019.” The Law relevant to the issues

[11]The claimant complains of a number of breaches of the EQA. Section 136, which applies to all claims brought before the Employment Tribunal under the EQA, reads (so far as material): “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[12]By s.41(1) EQA a principal (which the respondent accepts it was in relation to the claimant) must not discriminate against a contract worker as to the terms on which the principal allows the worker to do the work, by not allowing them to do or to continue to do the work or by subjecting them to any other detriment. The prohibition on harassment is found in s.41(2) EQA and s.41(3) makes it unlawful for a principal a contract worker, including by not allowing them to continue to do the work or by subjecting them to any other detriment.

[13]Section 13 (1) of the EQA reads: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[14]The Claimant complains that she has suffered direct discrimination on grounds of the protected characteristic of race. In the alternative, the claimant complains of race related harassment. The definition of harassment is contained in section 26 of the Act and, so far as relevant, provides as follows: “(1) A person(a) (A) harasses another

(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) … (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;

[15]What is and what is not harassment is extremely fact sensitive. So, in Richmond Pharmacology Ltd v Dhaliwal

[2009] IRLR 336

EAT at paragraph 22, Underhill P said: “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 (…), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[16]The importance of giving full weight to the words of the section when deciding whether the claimant’s dignity was violated or whether a hostile, degrading, humiliating or offensive environment was created for him was reinforced in Grant v HM Land Registry

[2011] IRLR 748

CA. Elias LJ said, at paragraph 47: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[17]Furthermore, in Weeks v Newham College of Further Education [2012] EqLR 788 EAT, Langstaff P said: “17....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. ...

[21]However, it must be remembered that the word is ‘environment’. An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staffroom concerned.”18. In Pemberton v Inwood

[2018] EWCA Civ 564

;

[2018] ICR 1291

, Underhill LJ set out guidance on the relevant approach to a claim under section 26 of the EQA as follows [at para 88]: “In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.”

19. The EAT provided guidance on ways in which actions might be “related to” the protected characteristic relied on in Bakkali v Greater Manchester Buses (South) Ltd

[2018] ICR 1481

EAT paragraph 31 “Conduct can be “related to” a relevant characteristic even if it is not “because of” that characteristic. It is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant. However, “related to” such a characteristic includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader inquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour. As [counsel] submitted, “the mental processes” of the alleged harasser will be relevant to the question of whether the conduct complained of was related to a protected characteristic of the claimant. It was said that without such evidence the tribunal should have found the complaint of harassment established. However such evidence from the alleged perpetrator is not essential to the determination of the issue. A tribunal will determine the complaint on the material before it including evidence of the context in which the conduct complained of took place.”

20. Furthermore, although the law anticipates a two-stage test to discrimination, it is not necessary artificially to separate the evidence adduced by the two parties when making findings of fact (Madarassy v Nomura International plc

[2007] ICR 867

CA). We should consider the whole of the evidence when making our findings of fact and if the reason for the treatment is unclear following those findings then we will need to apply the provisions of s.136 in order to reach a conclusion on that issue. 21. Although the structure of the EQA invites us to consider whether there was less favourable treatment of the claimant compared with another employee in materially identical circumstances, and also whether that treatment was because of the protected characteristic concerned, those two issues are often factually and evidentially linked (Shamoon v Chief Constable of the RUC

[2003] IRLR 285

HL). This is particularly the case where the claimant relies upon a hypothetical comparator. If we find that the reason for the treatment complained of was not that of race, but some other reason, then that is likely to be a strong indicator as to whether or not that treatment was less favourable than an appropriate comparator would have been subjected to.

[22]Victimisation is defined in s.27 EQA to be where a person(a) (A) subjects

(b) (B) to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act. A protected act is defined in the section which reads, in full: “27 Victimisation (1) A person (A) victimises another person (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. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”

[23]The then applicable provision of the Race Relations Act 1976 was considered by the House of Lords in The Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

, HL. The wording of the applicable definition has changed somewhat between the RRA and the Equality Act. However Khan is still of relevance in considering what is meant by the requirement that the act complained of be done “because of” a prohibited act. Lord Nicholls said this, at paragraph 29 of the report, “The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact”

[24]The application of the burden of proof in direct discrimination claims has been explained in a number of cases, most notably in the guidelines annexed to the judgment of the CA in Igen Ltd v Wong

[2005] ICR 931

CA. In that case, the Court was considering the previously applicable provisions of s.63A of the Sex Discrimination Act 1975 but the guidance is still applicable to the equivalent provision of the EQA.

[25]When deciding whether or not the claimant has been the victim of direct race discrimination, the Employment Tribunal must consider whether she has satisfied us, on the balance of probabilities, of facts from which we could decide, in the absence of any other explanation, that the incidents occurred as alleged, that they amounted to less favourable treatment than an actual or hypothetical comparator did or would have received and that the reason for the treatment was race. If we are so satisfied, we must find that discrimination has occurred unless the respondent proves that the reason for their action was not that of race. Section 136 of the EQA applies to victimisation cases as well as to discrimination cases. If we find facts proved that are sufficient that the tribunal could decide, in the absence of any other explanation, that the respondents acted as alleged by the claimant and did so because he had done a protected act then we must hold that the contravention occurred.

[26]We bear in mind that there is rarely evidence of overt or deliberate discrimination or victimisation. We may need to look at the context to the events to see whether there are appropriate inferences that can be made from the primary facts. We also bear in mind that discrimination and victimization can be unconscious but that for us to be able to infer that the alleged wrongdoer’s actions were subconsciously motivated by race or by the protected act we must have a sound evidential basis for that inference.

[27]The provisions of s.136 have been considered by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

UKSC – and more recently in Efobi v Royal Mail Group Ltd

[2021] ICR 1263

UKSC. Where the Tribunal is in a position to make positive findings on the evidence one way or the other, the burden of proof provisions are unlikely to have a bearing upon the outcome. However, it is recognized that the task of identifying whether the reason for the treatment requires the Tribunal to look into the mind of the alleged perpetrator. This contrasts with the intention of the perpetrator, they may not have intended to discriminated but still may have been materially influenced by considerations of, in the present case, race or a protected act. The burden of proof provisions may be of assistance if there are considerations of subconscious wrongdoing but the Tribunal needs to take care that findings of subconscious wrongdoing are evidence based.

[28]The unlawful motivation, whether (in the case of discrimination) that of race or (in the case of victimisation) the protected act does not have to be the sole or even the principal cause of the act complained of, so long as it was a more than trivial part of the respondent’s reasons. However, dismissal (or any other detrimental act) in response to a complaint of discrimination does not constitute victimisation for the purposes of s.27 EQA if the reason for it was not the complaint as such but some feature of it which can properly be treated as separable: Martin v Devonshires Solicitors

[2011] ICR 352

, EAT; Page v Lord Chancellor

[2021] ICR 912

, CA.

[29]In order to find that an act complained of was to the detriment of an employee, the 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: De Souza v Automobile Association

[1986] IRLR 103

, CA. This was explained in Shamoon to mean that the test should be applied from the point of view of the victim: if their opinion that the treatment was to their detriment was a reasonable one to hold, that ought to suffice, but an unjustified sense of grievance was insufficient for the claimant to have suffered a detriment.

[30]The EHRC Code of Practice on Employment (2011) advises in para 9.8 that a detriment is “anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage.”

Findings of Fact

[31]We make our findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral, which was admitted at the hearing. We do not set out in this judgement all of the evidence which we heard but only our principle findings of fact, those necessary to enable us to reach conclusions on the remaining issues. Where it was necessary to resolve conflicting factual accounts we have done so by making a judgment about the credibility or otherwise of the witnesses we have heard based upon their overall consistency and the consistency of accounts given on different occasions when set against contemporaneous documents where they exist.

[32]Ms Knee gave some helpful background information about the respondent trust, which we accept. It has three divisions: Diggory, Jamieson and Goodall. The trust employs approximately 7000 people. Although Ms Knee did not feel able to commit to specific evidence about the numbers of agency staff engaged at any one time in addition to directly employed staff, it seems uncontroversial to say that at the relevant time there were a sizeable number. Diggory division operates some specialist services: Health & Justice, Sexual Health and Addictions. Health & Justice was described as being the biggest part of Diggory division. We got a very vivid impression from Ms Knee’s evidence that the Trust not only covers a wide geographical area, but a very diverse variety of healthcare settings.

[33]At the time of the relevant events the claimant had been regularly carrying out shifts as an agency nurse at Band 5 at Heathrow IRC. There are two facilities at the Heathrow IRC: Harmondsworth and Colnbrook. These house immigration detainees from a wide range of countries pending their removal from the UK. We can well imagine that these are challenging places to work. LS explained in her paragraph 4 that they have approximately 600 male detainees who receive medical treatment from the Trust staff prior to being deported. The facilities are not run by the Trust but by Mitie. MP, in her paragraph 4, also describes receiving verbal abuse from male detainees. She is a lead pharmacist of the trust and, at the relevant period, she was interim regional operations manager.

[34]It is also part of the relevant background that the IRC had had a Care Quality Commission (hereafter CQC) inspection in early December 2018 and had been issued with an improvement notice on 2 January 2019. Ms Knee explained that the Turs had six weeks in which to improve and address the CQC’s concerns. Further, during that period of significant change, 3 of the most senior professionals (the regional operational manager, the head of healthcare and primary care lead) were not on site due to sickness absence. KM had only joined the trust in November 2018 and she was asked to support MP as part of the senior leadership team to implement the changes to address the failings identified in the security report. We take full account of the pressures that must have been on the IRC at the relevant time, and on those two individuals in particular, when judging the actions of which they are accused.

[35]Before focusing on the events of January and February 2019 that are the subject of the claimant's complaints to the tribunal, we need to record something about an incident which happened in June 2018. It is not necessary in order to understand our decision in this matter for us to record any details about the 2018 incident which is described by the claimant in her paragraphs 9 to 13 and also in AG’s evidence. The only findings that it is necessary for us to make about it are that the claimant’s then line management did investigate the reports at the time and decided to take no action. They decided that the incident did not cause concerns about the claimant's nursing practice and that was a matter of their judgement and did not result from a lack of investigation. There is documentation that supports their conclusion in the bundle. Although it was for the Trust and the Trust alone to decide whether the 2018 incident caused any concerns about the claimant’s nursing practice, it appears that Mitie were of the view that the incident had not been properly managed.

[36]We move forward to 19 January 2019. There was an incident on that date when the claimant was racially abused by a group of detainees who were waiting for their medication to be administered. The claimant is black and originally from South Africa. In her report of the incident, she said that she told the detainees to come one by one for their medication and to close the door, but that they "started calling me nigger, monkey, and started making monkey noises and dog noises, demanding to come in at the same time."

[37]The officer on duty, who was employed by or engaged by Mitie, managed to send the detainees out. It does not now seem to seriously be suggested that this incident did not happen. PW, in her statement evidence, supports - in general terms - that such a an incident occurred which involved loud racist chanting directed towards the claimant (PW paragraph 8).

[38]PW asked the claimant to complete incident forms and that the claimant declined, saying that it was what staff put up with all the time.

[39]Despite this, the claimant raised a Datix. It is at page 108 and reports that the action taken at the time was that the detainees were removed from the area.

[40]A Datix report is an electronic method used within the NHS for recording clinical incidents but which can also be used for inter-personnel reports. They are sent automatically to a number of relevant specialists across the Trust and include a description of the incident as given by the reporter. They also include what action has been taken, the impact on the reporter or anyone else involved, and the potential impact on the service.

[41]Notifications that a Datix has been made happen automatically, depending upon the area of responsibility of each individual recipient. It is not the case that merely by being a recipient there is an expectation that that individual should act upon it. We were signposted to reviewers who are tasked with ensuring that the report is acted upon.

[42]It initially looks as though ED was the person tasked with reviewing this particular Datix (page 114). However, we have heard that ED was on sick leave at the time of this report. According to page 112, the action taken upon the investigation was "member of staff to meet with primary care lead to review how so many detainees were in the same area at the same time, so that we can review systems and processes." In addition, lessons learned are recorded to be "discussions to be had at local delivery board to request Mitie supervise the area more robustly. Posters regarding not tolerating this behaviour to be refreshed and displayed prominently." It is difficult to tell when that entry was put on the living record.

[43]We have heard that KJ is the quality manager for the Trust who has overall responsibility for Datix reports. She sent an email on 21 January 2019 (page 114) the contents of which are included in the Datix. It was sent to ED and asked her to review the 19 January 2019 incident, confirm if moderate was a true reflection of the incident and asked for more information from the reporter.

[44]We accept the claimant's evidence that ED did not approach her for more information. As we say, it appears that ED was on sick leave at this point. A follow-up email was sent by KJ on 29 January, which was copied not only to ED but also to others describing the Datix as an overdue incident. We have not heard any evidence from the respondent to explain how it was concluded. The claimant says that she received no feedback and the respondent told us that the reporter would only be informed of the action taken if they had requested it through clicking on a tick box at the time of making the Datix request. This is consistent with the statement under the heading investigation on page 112 "staff who had requested feedback on the incident report will be sent the information from this field, when the incident is finally closed."

[45]There was considerable and inconclusive evidence presented to the Tribunal about the suitability of the Datix reporting system as a method for agency staff to report matters of concern to them. It was suggested to the claimant in cross-examination that typically the Datix was for patient-related and clinical concerns but she said that they were also about staff. It is common ground that the grievance policy does not apply to agency staff (see page 238 where its scope is that it applies to all trust employees). It is equally absolutely clear that the Dignity at Work policy does apply to agency workers since they would fall within the category "employees of other organisations who are on site" within the scope definition on page 250.

[46]We accept AKn’s evidence that the Dignity at Work policy applies to those who are currently in a relationship that puts them within scope of the policy and does not apply, for example, to people who had formerly been agency staff or formally employees. AKn’s evidence was that if a complaint was raised during the course of employment or engagement and then the employment or engagement stopped, then it would not automatically mean that the complaint was closed, that would depend on the circumstances of each complaint. Ms Knee seemed to suggest that the claimant had a choice about whether to make a complaint through the Dignity at Work policy.

[47]While considering the Dignity at Work policy, we note the responsibilities assigned to various individuals under section 2. Among other things, the managers are tasked with:a. "… an obligation to prevent bullying and/or harassment and to take prompt action once it has been suggested."

b. "to notify HR whenever an incident arises."

c. "to resolve, as appropriate, any problems which may arise in line with this policy by taking an active interest and effort to help employees with personal issues affecting their work."

[48]MP, who investigated the later Datix about the 9 and 10 February 2019 incidents, gave evidence about the level of investigation required under a Datix. If, as appeared to be the case, she was suggesting that it was normal in a Datix enquiry that the reviewer or investigator should take at face value denials (even by multiple witnesses) in the face of a serious allegation without any analysis of the weight to be given to competing claims then we find that surprising. Her evidence directly concerned her own investigation but it seemed that MP was saying that the investigation that she led on was consistent with what is required for a Datix. She said on more than one occasion that she was carrying out a fact find which was not a grievance or disciplinary investigation.

[49]As we have already noted, a Datix report can be used to report clinical matters. We would think it surprising if a Datix report of a clinical matter involving accusation and counter-accusation were to be investigated without even the most cursory challenge to the veracity of competing information. Were a Datix used to report a personal concern, as in the present case, why should it not receive the same level of serious consideration? Further, we do not see that the quality of investigation should be determined by the way the concerns raised. Either the Trust takes a complaint seriously or it does not. If the Dignity at Work Policy is to be meaningful in its application to those who are not in employment relationship with the Trust - and it is clear from its terms that it does apply to them - then were it the case that it was inappropriate or potentially ineffective to raise a racism complaint through the Datix system, the first step of the reviewer or the investigator should have been to point this out. Furthermore, MP sent an initial email response to the 10 February 2019 Datix (page 136) which is copied to a large number of people including KM and PW and also JAB and ND who were responsible for allocation of shifts at Heathrow IRC. In it, MP told the senior management team that she was going to the IRC to deal with the investigation and would "take the lead on this serious allegations (sic).". This suggests that the Datix system was an effective route for the claimant to raise her complaint. We find that Datix is a system which is intended to lead to a sufficiently thorough investigation, proportionate in the particular circumstances and we reject any evidence to the contrary.

[50]That evidence about the way in which the trust initially responded to the 10 February 2019 Datix informs our findings that the Datix reporting system was an appropriate method for the claimant to use to report the racist abuse by the detainees. The claimant in her paragraph 17 said that, contrary to what was recorded as the action taken, there was no follow-up with her. She argued that Mitie could have handled it in the same way as they would have handled any other disciplinary matter among the detainees, such as by removal of privileges. Of course, the respondent did not have authority over Mitie. PW was one of the claimant's managers at this time. She stated that she raised the issue with ZN, who said that she would raise it with Mitie. The Datix records that the member of staff was to meet the primary care lead, that there was to be a review of how so many detainees are in the same area at the same time and discussions would be had with Mitie to supervise the area more robustly. There is no direct or documentary evidence from the respondent that this was ever done.

[51]We consider that it was an absolute abdication of the positive responsibility on managers for there apparently to have been no follow-up with the claimant to tell her what was happening with her complaint, or what steps, if any, would or could be taken to minimise the chance of such an event happening again. We consider that it is clear in the Dignity at Work policy that there is a positive obligation on managers which means that, even if the complaint has not been made directly under the policy, they have an obligation to take positive action. In particular, the failure to follow this up with the claimant seems to be a failure to take "an active interest in effort to help employees with personal issues affecting their work". Although the word employees is used in that statement of responsibility, the policy applies more broadly as we have said.

[52]However, we have not found any evidence from which we can infer that the failure to follow up on the claimant's report is because the report itself was about racist abuse. It seems to us that from the evidence we have heard the reasons included that the claimant was an agency worker and had made a Datix report with an rather than one directly under the dignity at work complaint, possibly because she had not ticked the box saying that she wanted to be notified of the outcome, and because the facility was managed by Mitie and it was too hard for the Trust to influence their actions (see PW paragraph 9). Further, it is possible that the absence of key personnel at the relevant time also had an influence on the failure to action matters in a reasonable time.

[53]The central incident in the case involves events of 9 and 10 February 2019. The claimant alleges, in particular in her para.21 onwards (as amended in oral evidence) that on 9 February 2019 she was on the 07.00 to 19.30 shift when, just before 16.00, she was triaging a detainee who was racially abusive to her and pretended that he could not speak or understand English. She decided to call the nurse in charge who was LS. In her Datix reporting the event the next day (page 120) she entered the time as shortly before 16.00. The entry in the Datix continues. "I had to stop the triage […]. I went to nurse L and asked how the patient was, she was in admin with two staff members. Nurse L said ‘the patient was fine. He wanted sleeping tablets only and he can speak English’. I said ‘if the patient was fine with you. Maybe he was amongst the group of Albanians who racially abused me two weeks ago, maybe he was not happy to be triage by a black nurse’. Nurse L said ‘You need to get a pool of bleach to bleach your skin so that you come back tomorrow white and the patient will be nice to you’.”

[54]It is implicit in the wording and sentence structure, that the occasion when she went to LS and asked how the patient was must have been subsequent to the time she called LS to intervene and in the absence of the patient. This is made clear by the statement provided when her RCN officer wrote a grievance to the Trust on 7 March 2019 (page 172 at 176) where she says that she later went to LS.

[55]In that revised statement with the 7 March 2019 grievance the claimant went on to say that, after the comment made in the admin room, she went to the staffroom and JJ, who was standing there, told her that he was very proud of the way that she had stood up to LS's comments. She also said that, on her way out from the end of the shift, she told registered nurse MM about LS's comments.

[56]After describing the 9 February 2019 incident in the Datix, the claimant then says, that the following day, she had arrived at work and swapped with a nurse from Colnbrook, as authorised by the manager on duty. She had returned to Harmondsworth to get her cups and overheard LS talking to another colleague and saying "I do not care, let her go and bleach her skin, I am sick and tired of people coming to work and said they are not well". In her grievance of 7 March 2019 she stated that the person that LS was talking to was DW. That 7 March 2019 grievance was retracted, by the RCN on 12 March 2019 apparently on the claimant's instructions (page 179).

[57]A further statement of the events is at page 184 and is connected with later grievance presented on the claimant's behalf by the Independent Democratic Union (page 182). The account in that grievance is essentially the same as in the first.

[58]Ms Motraghi, on behalf of the respondent, has drawn our attention to differences in the account given at different times by the claimant but more specifically with her oral evidence. Her overall submission was that in certain respects the claimant's account of this incident and of that on 21 February have become significantly more detailed.a. One detail was said to be that the claimant said there was something wrong with the door to the staff corridor which meant that her approach on 10 February had not been observed and that was how she was able to overhear the comment said to have been made on that date.

b. She claimed to remember looking at a clock in order to time the meeting that took place between her and KM, but had not previously having mentioned that.

c. The claimant referred to 2 individuals having been present with her on 21 February 2019 when KM came to get her and they had not previously been mentioned.

d. Her oral evidence was that she had spoken to nurse MM regarding the incident while they were having tea whereas when she first mentioned it, she said the conversation had happened at the end of the shift.

e. When asked why DW and JJ would not have told the truth, the claimant had added in a description of hearing DW and LS coming through the corridor, giggling, on 9 February 2019, carrying condoms and placing them in the bag of JJ.

f. She said that MM had said that it was a hate crime.

g. On two occasions the claimant referred to individuals as being best friends to seek to explain consistency between their statements that contradicted her statement in some relevant way: she said this of JJ, DW and another and also of DS and KM.

[59]Overall, the argument of the respondent was that these details are belated additions seeking to add to make credible account which has the central difficulty, say the respondent, that it is contradicted by all the other witnesses.

[60]It should be noted however that one of the later additions, about LS and DW putting a condom in JJ's bag, was accepted by the respondent to be factually accurate. A condom had been put in his bag.

[61]Our assessment is that the claimant’s additional evidence was very much in the nature of additional detail and not necessarily something that you would put in the statement as key to the allegation in the first place, particularly in a Datix. We do not consider that the question of whether her conversation with MM was at the end of the shift or during a tea break was a sufficiently stark contradiction to undermine the evidence. The claimant may be presenting as fact conclusions that she has reached after the event that certain individuals are best friends which are based on very little evidence. If that relationship had been important to her argument and based on more than supposition, surely she would have mentioned it sooner. Nevertheless, the core of the allegation made by the claimant has remained the stay the same throughout and if she has jumped to conclusions about relationships between individuals since the relevant time that does not mean that her original report was a falsehood. We consider that such additional matters were not necessarily something that one would expect to have been mentioned at the time and in general the inconsistencies were about peripheral elements of the story.

[62]That said, it is the case that, when investigated by the respondent, not only were the objectionable comments denied to have been made by LS but those named by the claimant as witnesses to it appeared not to support her allegation. That has remained the case in the oral evidence before us of DW.

[63]PW was tasked with obtaining written statements from DW and LS. PW said that she had had initial conversations with the two witnesses and spoke to them informally: see her paragraph 11. Although in that paragraph. PW stated that she was surprised to read the written statements that DW and LS had denied any conversation to take place in the admin office, she did not give the full account that she gave in oral testimony namely that, in those informal conversations before the written statements were made, both DW and LS had said that there had been a conversation in the admin office. This is a potentially important detail that one would have expected PW to have included in her statement at the outset.

[64]DW's original written statement of 12 February 2019 is at page 140. In it she describes the claimant calling LS for help on 9 February 2019. "Loretta did go, she then came into the admin office and said she didn't know what her problem was the detainee was fine, he didn't know what he had done wrong, the Loretta tree are Tim and as far as I know he went back to his wing."

[65]DW then reports LS repeating this several times until she herself said that, as they haven't been in the room and didn't know what had been said to the claimant, they didn't know what the situation had been for the claimant. She then said that as far as she was aware the rest of the day was okay.

[66]DW's account in February 2019 about 10 February 2019, was that the claimant had come in and said she wasn't well and wanted to go home; that she had slept badly and had a lot of her mind because her sister was unwell. DW suggested speaking to the manager at Colnbrook to see if someone could swap shifts with her so that she could go there and she did. DW then added that, "Loretta was in the admin office and I told that she did go over the top the previous day, then she then said she wasn't going to work with Adelaide any more and if Adelaide was on shift with her she was going to go home."

[67]It appears from page 140 that LS was also under some strain at the time because of her husband's illness, which we have been told had covered this whole period. He had undergone surgery in 2018 and 2019.

[68]In her witness statement, DW said that she was sitting in the admin room with LS when the claimant called for help by telephone. Where DW was sitting and the method of calling for help was not information that appeared in the 2019 email. Ms Williams's statement was signed on the 26 March 2021. Again, it is striking that in DW's account of the day the only conversation that took place about the incident between the claimant and the detainee was between herself and LS with no one else present. This contrasts not only with the claimant’s account but with JJ’s account and with one of the accounts given by LS (that in the 2020 statement). The gist of paragraphs 9 and 10 of DW’s witness statement of 2021 is that the incident happened before lunch and that, at lunch, everybody had been together having a normal conversation with no friction or negative atmosphere. DW's account in her 2021 statement of what happened on 10 February 2019 is in more detail to that 2019 email but does not contradict it in any significant respect.

[69]LS provided her written statement to the investigation on 13 February 2019 (page 144 to 145). Key points are that she was in the phlebotomy room when the claimant had called to her and she had come straight away to find the claimant with the detainee whom the claimant said was abusing her. She, LS, had taken the detainee to another room and continued his triage. So far as any other interaction was concerned, she said. "I don't have any more conversation with nurse Adelaide the rest of the day, I didn't talk to her, don't know where she been the rest of the day the next I spoke to her was later in the evening when I asked her to do paracetamol"

[70]The first account received by the respondent from JJ was not directly from him. It was an account relayed through his management. MP was told indirectly that he denied that any racist comment had been made but was not, apparently, provided with any detail about what relevant interactions there had been. Eventually, after the Datix had been closed on 4 March 2019, he provided an email (page 167). We have not heard from JJ and he has not been cross-examined on this account. As to 9 February 2019, he said, "During the lunch break, Loretta asked Adelaide why she kept calling her to the nurses clinic. Adelaide replied that the Albanians tend to be racist and always give her a hard time. Loretta said in reply that they seem okay with her. Adelaide replied that is because you are white, and they will be okay with you."

[71]He did give an account of having a conversation with the claimant about experiencing racism but it differs from hers in that he said that on 10 February 2019 in the morning rather than at the end of 9 February 2019. He states that he saw the claimant and asked where she was going and she said that she had had enough was going home. The essence being that she was unable to put up with the racism at work.

[72]Finally, there is the account given in LS’s witness statement for these proceedings dated 16 December 2020. It is found in paragraph 5 to 7 and then in paragraph 8 LS deals with the 10 February 2019 account. It is noteworthy that, in paragraph 5, LS states that, when she was called by the claimant, she herself was in the admin room (whereas in the 2019 statement she said she was in the phlebotomy room). These rooms are not near each other; the admin room is in an area to which the detainees have no access – the phlemotomy room and treatment room are near each other in the area to which detainees do have access. LS states in the 2020 statement that, after treating the patient, she went back to the admin room and told DW that the patient had been fine with her and that the claimant had not been in the room at that point. She then describes (paragraph 6) going to the staffroom to eat her lunch and there being about seven people in the room, including DW and the claimant. "Adelaide and I spoke about the incident with the detainee that morning. I said to Adelaide that I have not experienced a problem with the detainee. Adelaide said something about us having different skin. I did not comment. Nothing else in particular happened during the lunch break." She concludes that she saw claimant later in the afternoon asked to do the medication and all seemed fine with the staff having their dinner together at about 17.00.

[73]In her oral evidence, the claimant denied contacting LS by phone and said that the patient had grabbed the phone. She said that LS had been in the phlebotomy room doing blood and fluids, as LS had originally stated, and that she had just stood up and called out because she couldn't leave the patient in the treatment room on his own. LS had come to her immediately. The claimant was adamant that the incident happened after lunch when she was triaging her last patient. She described entering the admin room and seeing LS and DW there, as well as JJ.

[74]LS plausibly said that JJ would not have been in the admin room because it contained confidential information. The claimant accepted that she had never previously heard LS say anything racist. Indeed, it seems to be common ground that the claimant and LS had a good working relationship prior to this incident.

[75]LS was in the position when giving oral evidence that her 2019 statement was starkly different in some respects to her 2020 statement. She said orally that she thought now that the evidence she had provided closer in time to the events (i.e. in the 2019 statement) was likely to be more accurate because events would have been more recent and fresh in her mind. In particular, in her oral evidence, she concurred with the claimant's account that she was on her own in the phlebotomy room when the claimant called out to her. There is particularly stark difference between the two statements between 2019 - where LS said that she had no more conversation with the claimant for the rest of the day after the incident - and paragraph 6 of the 2020 statement - where she describes in some detail a conversation about the incident concerning the detainee, which she says happened at lunchtime.

[76]LS gave oral evidence to the tribunal only two months after she has been widowed. She has suffered particularly challenging personal circumstances throughout the relevant period and throughout the period of preparation for the case of a kind which can affect detailed recollection of events. English is not her first language, although she is clearly fluent in English and there was no request for an interpreter. She confirmed that when she signed the 2020 statement she knew that it was going to be used in a Tribunal hearing. She therefore knew it was important that it accurately reflected her recollection.

[77]We take full account of the fact that the 2020 statement was not presented to LS in her first language although the respondent or their representatives could be expected to be alert to any risk that it did not represent her instructions. It resulted from the telephone interview with the respondent's solicitors. Although this case may well have been a source of anxiety for LS and we do not suggest that she failed to take it seriously, she has had particularly trying personal circumstances to contend with.

[78]That might explain to some extent a witness’s failure to identify inaccuracies in their witness statement put to them for their approval or a failure to identify that a particular matter is important at the time that you are asked about events in general. However, we consider that there is a significant difference between including detail that you have subsequently remembered and including a paragraph in your statement to explain a conversation that, within days of the relevant events, you previously said did not happen at all.

[79]LS’s oral evidence only made her true position more confusing because she sought in blanket terms to prefer the 2019 statement but then was unable to explain how she had signed the 2020 statement which included paragraph 6. In cross-examination she said that "maybe it was discussed at lunchtime". She was at pains to stress the relationship she had had with the claimant and said she had had a good relationship that they had shared lunch together. The claimant had loved Lithuanian food and she didn't understand why the claimant had made the allegation that she had. She was adamant that she had never said the claimant that she should go and bleach her skin and that the claimant had never been in the admin room at all; it had just been herself and DW.

[80]When she was asked in examination-in-chief why, in 2020, she had not corrected and made changes to her witness statement to remove paragraph 6 she said the following, "because I just tell [you] it's been two years ago. And when start talking you can change minds - you talking to staff, and every staff talking it happen like this and start thinking it happened like this or like that. I want to tell truth and the claimant can be a witness that I’m not lying.”

[81]This was the closest the LS came to an explanation and it made it sound as though, over time, there had been conversations with staff working at the IRC, presumably between her and DW or her and JJ that caused her to start thinking that the event had happened in a particular way. While there is some frankness in that it makes it difficult to rely upon her evidence.

[82]In making our findings on this, we give weight to the fact that the claimant has been broadly consistent about the essentials of the events that she described. The claimant, JJ and LS (in her 2020 statement) say that a conversation of some kind about the incident concerning the detainee and the claimant calling for help took place when those three and DW were present. DW's evidence was that no conversation took place at which the claimant was present; no conversation at all, let alone a conversation at which the offensive comment was made. DW says that she and LS alone had a conversation about the incident which was focused upon the reasonableness or otherwise of LS expressing the view that the claimant was complaining without good cause.

[83]It seems to us LS has been willing, consciously or unconsciously, to try to fit her evidence to the accounts of which she is aware or may be aware that others are giving. We are mindful that some of the details given by the claimant to not make sense - such as the allegation that the conversation took place in the admin room with JJ present. In some respects the claimant and LS accounts concur. In particular, their accounts of the precursor where the claimant sought help are essentially the same as each other's and different to DW’s.

[84]We are of the view that something must have occurred to cause the claimant to make a complaint against someone with whom she had a previously good working relationship. The claimant complained about this alleged comment so quickly in terms that have remained essentially consistent throughout. We do not think that this is a case where it is possible to explain the alleged comment as the complainant being mistaken.

[85]Although we consider all of the above factors in making our finding about the central incidents, we give particular weight to the claimant's essential consistency about the core elements of her complaint. We contrast that with the stark inconsistency between the two accounts given by LS about whether she had any further conversation with the claimant about this incident on 9 February 2019 and her inability to explain why she had signed to certify as true that a conversation took place that she didn't mention at all in 2019. On balance, we think it is probable that the claimant's account represents what happened and that it is probable that LS did say what she is alleged to have said. It is possible, based upon DW's evidence, that LS had a level of frustration with the claimant's requests for help and did not herself see either the behaviour which caused the claimant to be so upset or the seriousness with which the claimant viewed the detainees’ behaviour. Maybe the comment was made in the evening break. Maybe it was in the staff room rather than the admin room. We think it probable that it did not come just out of the blue, but was a continuation of a conversation about skin colour arising out of the claimant's struggles with detainees earlier in the shift. It is possible that LS was not deliberately intending to be hurtful but objectively what she said most certainly was.

[86]We also accept the claimant's allegations that the alleged comments by LS were made at the end of the shift and on the balance of probabilities accept that that comment was made on 10 February 2019 as well. Exasperation expressed at the claimant's reaction of being "sick" chimes with DW's evidence. In making our findings, we have in mind that DW's evidence that no such comment was made. This is not a case in which it is going to be possible to resolve all of the conflicting evidence. For reasons we have given above, we prefer the claimant’s account of the incidents of 9 and 10 February 2019. We are satisfied that the claimant’s account of the “skin bleaching” comments on those dates is made out.

[87]The claimant’s written statement to the investigation is dated 12 February 2019 (page 142) and is identical to the Datix. LS provided an email response to a request for a statement about the events of 9 February 2019 on 13 February (page 144) as we have already said. PW did not provide the claimant with feedback from this second Datix and did not tell the claimant that the alleged witnesses had not supported her allegations. She was tasked with obtaining statements from the relevant employees and MP was the investigator.

[88]On 21 February 2019, the claimant reported a conversation she said she had had on 17 February with an HCA whom she said had pressed her to discuss the incident between herself and LS and had then commented that it could not be serious because LS was still working and had not been suspended. However, we accept that steps had been taken to ensure that the claimant and LS worked separately while the investigation was being carried out.

[89]Two days after that conversation with the HCA, the claimant wrote to her agency, Athona in an email (page 150) which has the subject heading “shift cancellation”. In it she stated “I am unable to work at Heathrow IRC” an expression which covers both Harmondsworth and Colnbrook detention centres. The explanation given includes that the claimant had become very depressed after doing the last shifts the previous week and needed time to recover psychologically and emotionally.

[90]On the same day, the claimant also wrote to the manager, ND, asking for the link for bank work and said that she wanted to apply for RMN bank work. This led to a conversation between them and the claimant concluded that she felt able to work at Colnbrook where there were shifts available. On 20 February 2019 she wrote to ND and said “thank you very much for talking to me this morning. May I please work in Colnbrook only till my bank application is through then I will join MHT substance misuse with your permission.” She provided dates of her availability.

[91]KM had written shortly before 07.00 on 20 February 2019 to a number of people, including the claimant, asking for a copy of their ILS certificate so that it could be kept locally in their agency file. The claimant responded at 23.15 the same day to say that she would be going for ILS training on 25 February 2019 and would submit her certificate after that. In the meantime, at 08.50, PW had forwarded the claimant’s email headed “shift cancellation” to KM.

[92]The claimant’s email to ND asking to work in Colnbrook is timed after the email to her agency saying she wishes to cancel her shifts was forwarded to KM. There is no reason to think that KM was aware of the communication between the claimant and ND. The claimant signed up for shifts on 21 and 22 February 2019.

[93]Also on 21 February 2019 MP informed a number of managers including Ms Knee that the Datix investigation into the claimant’s complaint against LS was closed because the initial investigation was inconclusive and all parties denied the comments report. MP recorded that the claimant had decided that she did not wish to work at “this establishment any more” (page 157). When asked about the comment that all parties denied the comments reported, MP said she had read the written statements as providing no corroboration of the central allegation. There was no written statement from JJ at that point.

[94]We remind ourselves that both MP and KM were recent arrivals on the senior management team who had been tasked with dealing with serious problems identified in a C2C report.

[95]There are clear failings in the investigation and the decision to close it so quickly. We recognize that these probably had to do with the fact that it was made by an agency worker rather than employee. We do not consider this to be a good reason and it appears to be a limitation of the Trust’s policies which the respondent may wish to address. It probably also has to do with the claimant having been believed by KM and MP to have definitively stated that she no longer wanted to work there. However, if MP was of the view that she did not need to investigate further, given that the claimant appeared to have left, this is contrary to AKn’s evidence which was that an investigation into such a complaint would be concluded even if the agency worker had left.

[96]Our view is that MP took a very superficial approach to the task of investigation. She seemed to think denials were sufficient without consider whether inconsistencies between the accounts meant that employees’ accounts were unreliable. The fact that she closed the investigation without having obtained JJ’s written statement is at odds with her evidence that it was important to have the statements in writing. At the time she closed the investigation, she had not had any direct communication with JJ and simply had a second hand statement from the Mitie manager that JJ did not support what the claimant said.

[97]We also note that that Mitie manager had provided pejorative information about the 2018 incident. MP did not look into the circumstances of that incident and, if she had, she would have found that, contrary to what she says in her statement at para.12, it had been dealt with by the manager at the time who had accepted the claimant’s explanation.

[98]MP denied that the 2018 incident had any influence on her investigation. However, we found MP’s explanation of her reasons for putting a reference to the 2018 incident in her statement to be unconvincing. There is nothing known to MP about that which had anything to do with race or a racial complaint but it does adversely affect MP’s credibility in general that in oral evidence she appeared to ascribe to the Mitie manager the opinion which she was willing to state in her statement was her own namely “I did not think this was acceptable standard of behaviour but it had not been dealt with appropriately by the manager at the time and I was not going to undertake any action about it at this late stage.”

[99]As we say, MP was willing to state that despite having taken no steps to find out what action was taken by the manager at the time. That was PW, who gave evidence in support of the claimant about 2018 incident and to explain her own judgement that no action was necessary. If MP did not take this incident into account then it is difficult to know why she thought it necessary to raise it in her witness statement.

[100]Our view is that MP closed the investigation into the claimant’s complaint against LS summarily because the claimant, an agency nurse, appeared to have left and she was probably influenced by information provided to her by Mitie about the 2018 incident. She was wrong not to have waited until she had all of the written statements; wrong to have been influenced by an historic matter which she did check against the claimant’s version of events and which was irrelevant to her investigation; she was wrong to have been influenced by her belief that the claimant had left. However this does not appear to us to be something from which we could infer that MP failed in her duty to investigate the claimant’s complaint because it was a complaint of race discrimination. Indeed, her initial email suggests that she regarded that aspect as needing serious investigation.

[101]The claimant attended for her first evening shift at Colnbrook on 21 February 2019 and met KM. The latter’s description of the circumstances of that encounter is in her paragraph 4 & 5 where she said that she went to speak to the claimant in Colnbrook to check on her welfare and see if there was anything she could do to help. Her recollection was that it was a short conversation of less than five minutes in the coffee room where the claimant said she was fine that she had the support of her church, hugged KM and thanked her for her own support.

[102]However just before 17.00 KM had emailed ND to check whether he had booked the claimant to work the next two days expressing confusion because she had understood that the claimant did not want to work “here” again. She accepted in oral evidence that she had gone to Colnbrook after sending this email. For KM to carry out a welfare visit on an agency nurse is inconsistent with the way that agency nurses otherwise appear to be treated, for example by not been covered by the grievance policy. It is also at odds with the failure thoroughly to investigate the claimant’s to Datix’s that KM, given all that she had on her plate at the time, would make time to go to Colnbrook for a welfare meeting with an agency nurse. Although she expressed confusion in that email, she claimed in oral evidence that she wasn’t confused “per se” because the claimant had said that she didn’t want to work there (implying that the confusion referred to was about ND’s actions). However she also said that she wanted to clarify that the person who was booked would turn up and yet did not, on her own account, ask the claimant whether she was willing to work shifts at Colnbrook and would be reliable claiming that, in hindsight, she could have asked this but that her training was not to mix welfare and management together. We found this explanation to be confused and confusing.

[103]The claimant’s account is in her paragraph 29 where she says she was invited to a meeting with KM and her recollection is set out in the email she sent to ND the following day (page 160). According to that, the claimant was told by KM not to talk to anyone other than her because she was the manager and that she had terminated the contract and was concerned about the claimant’s mental health because some words used in her statement were worrying. She continued “she told me not to continue with my bank application and today to be my last day.”

[104]We think that this is more plausible. We think that KM went to see the claimant to make sure that she did not work at the IRC again. We reject her evidence that she was carrying out a welfare visit and her denials that she told ND not to book the claimant in the future.

[105]It is argued by the respondent that since KM’s husband is West Indian she is more likely than most to be well acquainted with the effect of racial abuse in the workplace and in wider society. However this was not the evidence she gave about the relevance she attaches to her family circumstances. She did not say that she went to see the claimant because she had an understanding about what the claimant had gone through. In KM’s paragraph 9 she said that she found accusations of racism to be very distasteful “as well as belittling of legitimate racism claims” in the context of her own circumstances. We can understand that KM has been distressed to be accused of treating the claimant unfavourably because she made a race discrimination complaint and of subjecting her to less favourable treatment on grounds of race. However we do not think that KM’s own race or that of her husband or children are relevant.

[106]We also consider that the fact that the claimant did not turn up for the shift she had volunteered for on 22 February 2019 support her evidence that she had been told not to. This was denied by KM who said “I don’t accept that. She made very clear that she was very distressed by incident she had raised. She said didn’t want to be there. I never told her not to come. I would never tell her she’s terminated. I couldn’t do that. I can’t terminate agency member. If [there is] an issue [it is] raised with the agency and [it is] for them to decide whether work there again. We can put our concerns in. You cant just terminate somebody.”

[107]Not only did the claimant send the near contemporaneous email (09.27 on 22 February 2019) to ND to which we have already referred (page 165) but JAB, a senior primary care nurse who was another of the managers, told the claimant that he had been instructed that morning that she was not allowed back for now in an email timed at 10.23 on 22 February 2019 (page 159.1).

[108]The failure of the claimant to attend for the shift on 22 February, her own email, that of JAB and our rejection of KM’s explanation for her visit to Colnbrook to see the claimant’s lead us to conclude that it is more likely than not that KM did tell the claimant that she was terminating the claimant’s contract, that she should not speak to anyone other than her, KM, and that she should not continue with her bank application. All of those matters fit with the picture we have of KM taking steps to make sure that the claimant did not work at Heathrow IRC in the future.

[109]The claimant also alleges that KM said that she was concerned about the claimant’s mental health. We remind ourselves of the evidence of PW and her allegation that she had been told by KM that she did not want the claimant on site because she had serious mental health problems. It came across in EW’s evidence very clearly that she disliked KM and we are bound to take that into account when deciding whether her evidence about something that KM said is reliable. PW was someone who had been part of the management team criticised in the CQC report and KM was part of the management team brought in to make transformative changes in response. It is understandable if PW found her to be abrasive and we consider whether that made PW an unreliable witness about statements she attributes to KM.

[110]The comments (paragraph 16 of PW’s statement) were denied by KM. PW was blunt in her evidence that KM had backed up her stated opinion with reference to the 2018 incident recognizing that she, PW, did not have evidence to prove that what had been said. However, she stood by her account. We do not think that this was something which was invented because of PW’s personal dislike of KM. We accept that, broadly speaking, PW’s account of this conversation with KM is true.

[111]That supports the claimant’s evidence that KM also made a comment about her mental health in their conversation on 21 February 2019; it increases the probability that that comment to the claimant was made. In general we found the claimant to be a credible witness. On balance we accept that KM said that she was concerned about the claimant’s mental health because some of the words used in the statement had been worrying and thereby linked her concerns to the words used by the claimant in her statements.

[112]When the claimant sent her email account to ND he advised her to speak with KM again because he believed there to have been a misunderstanding. However, he also said that it had been communicated to him that, until he was told otherwise, he should not book the claimant in for shifts at Heathrow IRC.

[113]The fact that both ND at page 165 and JAB (page 159.1) both say that they have been told not the claimant in full shifts and both refer to an instruction is inconsistent with the respondent not having influence over which agency staff are booked. It appears from ND’s email that he had a conversation with KM and she must have said something which led him to say that it had been communicated that he was not to book the claimant into work shifts and we reject her denials. So far as we have been told, other than one incident on 10 February 2019 when the claimant attended for work and asked to swap shifts to work at Colnbrook, there was no history of unreliability on her part. The justification put forward by KM in her paragraph 6 that there was a risk that the claimant would not turn up appears to us to be something she seeks to rely on in hindsight.

[114]It is argued on behalf of the respondent that the claimant should have sought to clarify the position with KM as suggested by ND. We do not think the claimant was unreasonable not to do so. It is understandable that she considered that nothing was likely to change. She had found KM unapproachable and ND had confirmed that he had been told not to offer her shifts.

[115]The claimant reported KM to the NMC and she submitted the statement to their investigation (page 211). In that KM said “I had a brief chat with Kweyema on the 21st February with regards to a welfare check after she completed Datix report with regard to racism. I wanted to check she was okay, and during the five minutes chat she assured me that she was getting support from her church and she needed nothing further from myself. I then left the room. We did not discuss anything further.”

[116]She did not mention in that account that she knew at the time of her visit that the claimant was leaving the Trust or that she thought that the claimant should not be booked in for shifts because there was a risk she would be unreliable. She accepted that she set out to visit the claimant after hearing that she did not wish to work at Heathrow IRC any more but also had been booked in for shifts. Our conclusion that KM set out to dissuade the claimant from working at the Trust fits the sequence of events as appears from the emails. Furthermore, KM’s account does not include any attempt on her part to understand whether the claimant wished to work there or not. Had she been genuinely confused, surely that would have been something she would have raised.

[117]We have already referred to the written statement by JJ about the events of 9 February 2019 was provided on 4 March 2019 (page 167).

[118]On 14 March 2019 KJ, in her role having oversight of Datix’s, messaged a number of recipients about the claimant’s Datix of 21 February 2019 concerning the comment alleged to have been made by the HCA (page 130). KJ asked DS, to review the incident and asked questions.

[119]The claimant presented a grievance through the RCN on 7 March 2019 (page 172) which was withdrawn on her behalf and another through the Independent Democratic Union on 29 March 2019 (page 182) by which she complained in broad terms that she had suffered racial abuse, that the Trust had done nothing to support her and that she had suffered a withdrawal of employment as a result. We have found that the Grievance Policy does not apply to former agency workers. Neither does the Dignity at Work policy applying to former, rather than existing, agency workers. We accept that it is not Trust practice to formally investigate such grievances and that is a complete answer to the complaint about the failure to investigate the grievance at page 182.

[120]It appears that no response to the second grievance was ever sent by the Trust to the claimant and that the Service Director sought advice on how to respond left the Trust on 13 June 2020. We accept that that and probable work pressures explain why the complaint was not responded to.

[121]In April and May 2019 respectively the claimant complained to the NMC about LS and KM. The cases were closed in 2020. Conclusions on the issues

[122]We now set out our conclusions on the issues, applying the law as set out above to the facts which we have found. We do not repeat all of the facts here since that would add unnecessarily to the length of the judgment, but we have them all in mind in reaching those conclusions. Race -related harassment and direct race discrimination

[123]We consider first whether any of the aspects which the claimant has shown to have taken place were race related harassment contrary to s.26 EQA. If we conclude that any matters alleged to have been both race related harassment and direct race discrimination in the alternative meet the test of harassment set out in s.26 then that conduct is not included in the definition of detriment for the purposes of s.41(1)(d): see section 212 (1) of the EQA.

[124]The first alleged act of unwanted conduct is that of LS’s comments to the claimant on 9 February 2019 regarding skin bleaching. The second is that of comments by LS to DW the following day which were overheard by the claimant. See LOI paragraph 41.a and b. We have found that those comments were made. They were clearly unwanted conduct.

[125]The comments made by LS to the claimant and overheard by the claimant were obviously likely to cause distress and hurt. The comment made to DW which were overheard by the claimant were not intended to be overheard by her and we do not think that LS’s purpose was to intimidate the claimant onto creates a hostile degrading humiliating or offensive environment for her. We think that LS did not understand that the claimant was suffering the abuse and intimidation from the detainees because she herself did not experience the same difficulties. However any reasonable person would be offended and humiliated by these comments by LS. We accept that in all the circumstances including the perception of the claimant these comments meet the statutory test for harassment.

[126]They are overtly connected with skin colour because the implication of what was said was that in order not to receive abuse from the detainees the claimant should lighten the colour of her skin and colour is an aspect of race.

[127]The allegations of race related harassment are made out in relation to LOI.41.a and b.

[128]It is next alleged (LOI.41.c) that KM’s comments to the claimant on 22 February 2019 were race related harassment in that she criticised the claimant’s response to suffering racial abuse. We have found (see paras.109 to 111) that KM said words to the effect that she was concerned about the claimant’s mental health because of some of the words used in statement, this referring to the claimant’s Datix by which she complained about racial abuse and/or the statement for MP’s investigation. These words were unwanted.

[129]There is no overt connection between race and the comments made by KM but there is a connection in that KM expressed concerns about the claimant’s mental health because of the phrasing of her complaint about race related harassment. Although a more indirect connection it is, we consider, sufficient to mean that this unwanted comment was related to race as alleged.

[130]We accept that for a manager to say that the way that someone has complained about race racial abuse causes that manager not merely to be concerned about a nurse’s mental well-being but to have concerns that she is mentally unwell could reasonably be regarded by that individual as violating their dignity or creating a humiliating atmosphere for them. It is absolutely clear from her oral evidence that the claimant considered the suggestion that she had mental health problems to offend her professionalism.

[131]That being the case, not only has the claimant shown that the incident took place as alleged but we are satisfied that it was unwanted conduct related to race that had the prescribed effect of harassment, taking into account all of the circumstances including the claimant’s perception and whether it was reasonable for the conduct to have that effect. The allegation of race related harassment is made out in relation to LOI.41.c.

[132]In the light of our findings on LOI.41.a to c, the race discrimination complaint is dismissed because the acts of unwanted conduct are excluded from the definition of detriment by reason of section 212 (2) of the EQA.

[133]Had we not found allegationsa. and

b. to be acts of race related harassment we would have found them to be less favourable treatment on grounds of race. However in relation to allegation c., the appropriate comparator would be a white person who had made an identically worded Datix. We do not think that there is evidence from which it could be inferred that KM treated the claimant less favourably than she would have treated such a comparator on grounds of race. However, as we say, the allegations of race related harassment made out. Victimisation

[134]We accept that the communication set out at LOI.42.a was a protected act. So far as the alleged comments to LS on 9 February 2019 are concerned (LOI.42.b) the claimant did tell LS that the patient she was treating was abusive towards her and that is accepted by LS. The claimant’s evidence suggests that she said it was possibly because he was Albanian and this seems to us to be sufficient to amount to a complaint that the detainee was acting in a way towards the claimant that was race discrimination. This would amount to an allegation that someone other than the respondent had been racist. The detainee is not in a position to contravene the Equality Act 2010 but the allegation is capable of being an allegation that the Trust was responsible for third party racism, even though that is not a claim the claimant has pursued..

[135]The comments and conversation with JJ on 9 February 2019 about LS’s remarks (LOI.42.c.) did, we find, involve some kind of discussion about racism on her part and an allegation that an employee for whom the respondent was responsible had contravene the EQA. It therefore falls within section 27(2)(d) EQA and was a protected act

[136]As far as LOI.42.d. is concerned, although the claimant provided some information about her conversation with MM on 9 February 2019 there is nothing to suggest that MM told anyone about that herself and it seems improbable that that conversation had any impact on any decision with which we have been concerned or any act of the respondent with which we have been concerned. Whether or not technically this conversation amounted to a protected act, therefore, we do not think it played any part in causing the act complained of.

[137]It is agreed by the respondent that the Datix on 9 February 2019 was a protected act (LOI.42.e.). The claimant no longer relies on the alleged remarks to DW and JAB on 10 February 2019 and we do not need to make a decision about them (LOI.42.f).

[138]The claimant has shown that her oral communication PW on 11 February 2019 took place (LOI.42.g) but there is no evidence that PW told anyone about it and therefore although it was a protected act it has no relevance to the claim. There is no evidence from which it could be inferred that any of the respondent’s managers were influenced by.

[139]The communication in writing by the claimant to PW on 13 February 2019 (LOI.42.h – page 142) setting out her recollection of for the purposes of PW’s initial investigation was a protected act since she made allegations of race related harassment against LS within it.

[140]The email referred to in LOI 42.i dated 19 February 2019 was not sent to KM. It is at page 115 and was to the agency. It does not refer to any racial incidents. This was not a protected act.

[141]Although the email from the claimant to ND on 19 February 2019 and telephone conversation the same day may well have involved the claimant discussing the racially motivated comments, there is no evidence that this information was passed onto any of those responsible for the acts complained of. That was not the case put forward by the claimant. Even if they were protected acts, we see no evidence from which it is right to infer that the acts complained of were done because of these communications with ND (those set out in LOI para.42.j and k.).

[142]The grievance of 7 March 2019 presented by the RCN on the claimant behalf (page 172) was a protected act as was the grievance of 29 March 2019 presented by the IDU (page 182).

[143]The first alleged act of victimization (LOI para.43.a), that of ignoring her complaint we have concluded is not made out. There was a clear failure of management in the failure to give the claimant feedback from the report or, apparently, to follow up the recommendations with Mitie (see paragraph – but not unlawful under the EQA. See our conclusions at paras.51 & 52 above.

[144]We have accepted that LS did make the comments about skin bleaching (LOI.43.b). She did so in response to the claimant’s verbal complaint that she may have been treated differently by the Albanian detainee she had seen that morning than LS had been because she is black or because LS is white. We conclude that this comment by the claimant, that she was suffering race discrimination from a third party at work, was part of the reason why LS made the skin bleaching comment. This allegation of victimization is made out.

[145]By the same reasoning, we conclude that when, on 10 February 2019, LS repeated the skin bleaching comments to DW (comments which were overheard by the claimant) this was a detrimental act the reasons for which included the claimant’s complaint the previous day of less favourable treatment. This allegation of victimization contrary to s.27 EQA is made out.

[146]The matters referred to in LOI para.43.c and e. are not detrimental acts of the respondent in themselves but alleged consequences of them and are therefore issues which should be decided at the remedy stage.

[147]In LOI para.43.f and g. the claimant complains that KM’s comment that she was concerned about the claimant’s mental health was made, in part, because of the claimant’s Datix and the statement to the investigation of that Datix (which are protected acts – LOI.42.e and h). We have found that the comment was made (paras.109 to 111 above). The comment in full includes that KM’s concerns were due to some of the wording of those statements. That wording causes us to conclude that the reasons why the comment was made included the claimant’s written complaints about the actions of LS. The allegation of victimization is made out in respect of KM’s comments.

[148]As part of the same conversation, KM told the claimant that she had terminated the contract with her agency. We do not think it possible to separate out KM’s motives for doing so or for taking steps to ensure that the claimant did not work in the IRC in the immediate future from her motives for saying she was concerned about the claimant’s mental health. What the claimant had reported in the Datix probably was at least part of the reason why KM took these steps because it was part of the reasons why KM was concerned about the claimant working at the IRC. The allegation that this was an act of victimization is made out.

[149]In respect of LOI para.43.h. we have found that the investigation into the claimant’s Datix report about LS’s comments by MP was not adequate and set out our specific criticisms in paras.95 to 100. However, as we explain in those paragraphs, despite the unsatisfactory nature of the respondent’s investigation, we are persuaded by the evidence as a whole that the reasons for that did not include that it was a complaint of race discrimination (see, in particular, para.100). This allegation of victimization is not made out.

[1]Following the liability hearing which took place on 20 to 24 June 2022, by a reserved judgment sent to the parties sent on 13 October 2022, we found that the Respondent had subjected the Claimant to race-related harassment and victimisation as a result of full factual matters;1.1 The comment by LS on 09 February 2019 to the Claimant “you need to get a pool of bleach and bleach your skin so that you come back tomorrow white and the patients will be nice to you.”

1.2 On 10 February 2019, by LS saying “I do not care let her go and bleach her skin I am sick and tired of people coming to work and saying they are not well.”

1.3 On 22 February 2019, by the Deputy Lead Nurse for Offender Care, saying that she was concerned about the Claimant’s mental health because some of the words used in her statement to complain about race-related harassment were worrying.

1.4 By the same Deputy Lead Nurse for Offender Care, telling the Claimant on the same date that her agency role was being terminated.

[2]At the remedy hearing, we had the benefit of a remedy bundle running to 105 pages but were also taken to some pages in the original hearing bundle. The remedy hearing bundle is referred as RHB in these reasons and the liability hearing bundle is referred to as LHB in these reasons. The Claimant did not produce a specific remedy statement and we were referred to a number of paragraphs in her original liability statement dated 24 May 2022. The Respondent relied on the witness statement evidence of James Smith dated 28 October 2022. Both Mr Smith and the Claimant were crossexamined and gave oral evidence with reference to their statements.

[3]The Representatives made oral submissions and Mr Onibokun had also produced written submissions of 22 pages which were forwarded to the Tribunal and the Respondent on the morning of the hearing.

[4]In paragraph 5 of the CSA Mr Onibokun stated that the issues that the Tribunal were invited to determine at the remedy hearing were as follows:4.1 What is the amount of lost earnings payable to the Claimant in light of the ET’s findings on liability?

4.2 Did the Claimant sufficiently mitigate her losses, given the circumstances? If not, should any award for loss of earnings be reduced to take cognisance of that failure? And if the answer to this question is in the affirmative, by what percentage?

4.3 What is the percentage of uplift that the Claimant ought to be rewarded pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (hereafter TULR(C)A) for the Respondent’s failure to comply with the ACAS code of practice pertaining to the grievances lodged by her dated 07 March 2019 and 29 March 2019 respectively?

4.4 Did the Claimant suffer injury to her feelings arising from the Respondent’s conduct? If the answer is in the affirmative, what Vento band does the injury fall into? How much ought the Claimant be awarded?

4.5 Are there any particular features of the proceedings together with the manner in which it was defended by the Respondent that merits an award of aggravated damages to the Claimant: if so, what ought to be the level of any such award for aggravated damages?

4.6 Did the conduct of the Respondent being a public body found culpable of such serious acts of race discrimination require the Employment Tribunal to exercise its powers to make recommendations pursuant to section 124(2)(c) Equality Act 2010 (hereafter the EQA)?

4.7 Should the Employment Tribunal also to exercise its discretion against the Respondent pursuant to section 12A Employment Tribunals Act 1996 (hereafter ETA).

[5]Ms Motraghi had not seen the Claimant’s skeleton argument until very shortly before the hearing and we gave her time to read the relevant documentation. After she had had the opportunity to assimilate the skeleton argument and particularly the issues that Mr Onibokun said the Tribunal needed to address, we invited the parties, and in particular Ms Motraghi, to address us on what issues fell to be decided at the remedy hearing.

[6]Although Ms Motraghi made clear that the Respondent did not apply to postpone the hearing and did not consider that we were unable to proceed despite the short notice of those arguments, she expressed concern in particular about the notification that the Claimant was seeking an award for compensation for aggravated damages, the argument that there should be a recommendation and the argument that there should be a penalty awarded under s.12A ETA 1996. She argued that the Respondent’s primary position was that the Claimant ought not to be able to advance a claim for aggravated damages or for a recommendation and the Respondent was not in a position to deal with them and they were not properly before us. She also argued that in a number of instances an award of compensation for aggravated damages could be double counting.

[7]The Tribunal pointed out to the Claimant and her representative that a recommendation is only available in circumstances where the Tribunal is satisfied that the action could reduce the impact on the Claimant of the unlawful behaviour and there was no evidence in the bundle or witness statements before us to lead to such a finding. Furthermore, it was clearly something on which the Respondent would need to have the opportunity to call evidence so, were the Claimant to pursue her arguments that there should be one or more recommendations, then, potentially the Tribunal would consider that an adjournment of the remedy hearing was needed in the interests of justice.

[8]In order to make proportionate use of time and so that Mr Smith’s participation in the remedy hearing could be concluded, it was agreed that he should give his evidence and be cross-examined on it. Mr Smith was released and then Mr Onibokun took instructions from the Claimant.

[9]The Claimant confirmed through Mr Onibokun that she was no longer pursuing an argument that there should be a recommendation. She also relayed through Mr Onibokun that she had taken on board a point made by Ms Motraghi that the Respondent had proffered a written apology since the liability judgment. That apology is at RHB page 50. In it Jane Hannon, the Managing Director of Diggory Division, has said a number of things including: “We are working with our BAME staff network on a “Show Racism the Red Card” campaign which is being rolled out across our organisation. This will go further in making colleagues aware of how they can raise instances of racism and that we can address them and eradicate them by bringing them to light.”

[10]The Tribunal decided that it was permissible for the Claimant to argue that there were aggravating features which had caused identifiable injury in addition to the acts which we had found to be unlawful. We directed that those arguments had to be made on the basis of our findings in the liability judgment, evidence before us at this remedy hearing and evidence (both statement and oral) before us at the liability hearing. Aggravated damages are compensatory not punitive and it is for the Claimant to evidence that allegedly aggravating features had caused or increased the level of hurt or insult which she experienced. We made clear that this could be done with reference to all evidence heard so far but that the Claimant should not at the remedy hearing give additional evidence of which the respondent did not have prior notice.

[11]Ms Motraghi identified a further problem in the evidence that had been prepared by the Claimant which was a lack of reliable information about what wages she had actually received when working as an agency worker for the Respondent. The Claimant was permitted to give evidence in chief about that, in particular about RHB pages 31 to 33. These were spreadsheets setting out sums said to have been paid by the Respondent Trust to Athona, the agency through whom the Claimant was engaged.

[12]The Claimant had provided an email dated 12 February 2019 which had originally had payslips attached (RHB page 33) and another dated 14 June 2022 which appeared to include links to timesheets (RHB pages 35 & 36) . However, the Claimant said that the passwords for those payslips had expired and she was no longer able to open them. The spreadsheets at RHB pages 31 to 32 were said by Mr Onibokun to be an analysis of invoices generated by Athona and submitted to the Respondent and therefore evidenced the sums paid to Athona in respect of the Claimant’s services. The Trust was then charged VAT on the value of the Claimant’s services by Athona.

[13]The Claimant gave oral evidence that the money paid by the Trust to Athona would go through an umbrella company and they would make any necessary deductions and what was left would be paid to her. She confirmed that the umbrella company would deduct tax and national insurance. The Claimant had not provided a copy of her bank statements for the relevant period to show the sums that had been paid into her bank account. Apparently, disclosure of documents which showed that payments had been made through an umbrella company had only been made very shortly before the remedy hearing which meant that the Respondent had only just been alerted to the difficulty that the Claimant’s losses could not in any meaningful way be extrapolated from the sums they had paid to Athona.

[14]Calculations done on behalf of the Claimant that are at RHB pages 38 to 39 which totalled some £32,841.75 for the 30 weeks the Claimant’s services from 25 July 2018 to 21 February 2019. However, it became apparent that these could not be traced through to the schedule of invoices. It was not clear how much of the sums Athona invoiced for the Claimant’s services was, in fact, transferred to her. It would be these sums that would be the measure of her loss and not the amount paid by the Respondent. In particular it was not clear how much would be the net sum she received.

[15]The Respondent’s primary position was that a loss of earning claim was unsustainable for reasons that we will come to in due course. However, it seemed to be common ground that if the Tribunal decided that there was a loss of earnings made out an actual calculation would require further disclosure. In particular if the Claimant no longer had access to the payslips as she claimed there was a need for a third-party disclosure order against Athona and a relevant umbrella company. Although disclosure by the Claimant of her bank statements might have been of assistance and, therefore, it might be said that she had not put herself in the best position to prove the amount of any loss of earnings, we were of the view that there was some evidence that she had encountered difficulties in obtaining the relevant evidence and that it would not be just for her to be deprived of compensation for loss of earnings to which she would otherwise be entitled if what was needed was information from third parties.

[16]The Tribunal ultimately reserved its decision on remedy and given the period of time that elapsed between the date of the remedy hearing and the first date in which the Tribunal could reconvene for a discussion we decided to make an order for third party disclosure against Athona without delay.

[17]On 12 December 2022 an extension of time was granted to Athona for provision of the relevant documents and therefore alongside this reserved judgment we make directions for further submissions from the parties as to the appropriate calculation of the average weekly earning of the Claimant with the Respondent that will form the building of the calculation for loss of earnings. It may be that a precise calculation cannot be done from the documents made available by Athona if they do not include payslips direct to the Claimant showing the sums that were actually paid to her by the umbrella company. We urge the parties to take a proportioned approach to whether it is necessary to seek further third-party disclosure orders or whether having seen the remedy judgment and the parameters for calculating loss of earning that we had already decided upon it is possible for the parties to agree an average weekly earnings figure in order avoid a further hearing and to save cost. Applicable law

[18]The law in relation to injury to feelings is well established. We remind ourselves of the case Armitage, Marsden and HM Prison Service v Johnson

[1997] ICR 275

EAT where it was said, among other things, that the awards for injury to feeling should be compensatory rather than punitive and that, on the one hand, they should not be so low as would diminish respect for the anti-discrimination legislation but on the other they should not be excessive. We should also remind ourselves of the purchasing power of the value of the award of everyday life and balance that with the need that awards for discrimination should command public respect.

[19]The injury must be proved, our findings must be evidentially based and the injury for which compensation is claimed must result from the discrimination which has been proved: MOD v Cannock

[1994] IRLR 509

and Alexander v The Home Office

[1988] ICR 604

[20]The well-known case of Vento v. Chief Constable of West Yorkshire Police (No. 2)

[2003] ICR 318

CA (followed by Da’Bell v. NSPCC

[2010] IRLR 19

EAT) set out three bands or brackets into which it was said that awards of this kind could fall. Following the judgment in Da’Bell, which increased the levels of the bands to take into account inflation since the Vento decision, the lowest band was increased to £6,000, the middle band from £6,000 to £18,000 and the highest band, reserved for the most serious cases, £18,000 and above. In De Souza v Vinci Construction (UK) Ltd [2017] I.R.L.R. 844 CA, it was held that the 2012 Court of Appeal case which applied a general uplift to damages for pain, suffering, loss of amenity, physical inconvenience and discomfort of 10% should apply to awards of compensation for injury to feelings by the employment tribunal.

[21]Previously decided cases should, in any event, not be regarded as particularly helpful as a guide to an award of damages because every case is fact specific. However, the ruling in the De Souza case means that that is particularly so in relation to reports of judgments which predate 1 April 2013 (because they predate the general uplift). Following the judgment in De Souza, the Presidents of the Employment Tribunals in England & Wales and Scotland have published Presidential Guidance by which the Vento bands are updated annually. The present claim was presented on 21 June 2019 and therefore the applicable bands are21.1 £26,300.00 and upwards for the most serious cases;

21.2 Between £8,800.00 to £26,300.00 for serious cases not meriting an award in the highest band;

21.3 Between £900.00 to £8,800.00 for less serious cases, such as an isolated or one-off act or discrimination.

[22]The claimant argues that this is a suitable case for an award of aggravated damages. They are, in principle, available for an act of discrimination: HM Prison Service v Johnson. They are compensatory rather than punitive and are available when the respondent has behaved in a high-handed, malicious, insulting or oppressive manner when discriminating against the claimant. In Metropolitan Police Commissioner v Shaw [2012] I.C.R. 291 EAT, Underhill P, as he then was, cautioned against the risk that a separate award of aggravated damages can lead a tribunal, unconsciously to punish a respondent rather than compensate the victim. There is also a risk of duplication of compensation and the tribunal must be satisfied that there is a causal connection between the exceptional or contumelious conduct and the aggravation of the injury. In many cases it will be appropriate rather to include in compensation for injury to feelings an element which reflects the way in which the victim was treated.

[23]When there is a substantial issue as to whether the claimant has failed to mitigate, the questions that we need to ask ourselves are23.1 what steps were reasonable for the claimant to have to take in order to mitigate his or her loss;

23.2 whether the claimant did take reasonable steps to mitigate loss; and

23.3 to what extent, if any, the claimant would have actually mitigated his or her loss if he or she had taken those steps. Whether an employee has done enough to fulfil the duty to mitigate depends on the circumstances of each case and is to be judged subjectively. (Gardiner-Hill v Roland Berger Technics Ltd

[1982] IRLR 498

, EAT) Remedy issues

[24]Following the discussion referred to above the issues for the Tribunal to discuss to decide at the remedy hearing were the following:24.1 Has the Claimant shown that she has suffered loss of earnings as a result of the unlawful acts of the Respondent?

24.2 If so, what is the period of any such loss?

24.3 Has the Claimant failed to mitigate her loss? This requires the Tribunal to consider what steps, had the Claimant been acting reasonably, she would have taken to obtain alternative work and had she taken those steps, when would she have obtained work?

24.4 What was the amount of the Claimant’s average net weekly earnings with the Respondent?

24.5 What award of compensation for injury to feelings resulting from the acts found to be unlawful should be made?

24.6 What interest should be awarded on that sum? What interest should be awarded on any loss of earnings?

24.7 Should there be an award of compensation in respect of aggravated damages? Should any award for interest be made on that?

24.8 Does the ACAS code of conduct apply to those who like the Claimant are not employees? Was there an unreasonable failure to comply with the relevant ACAS code of conduct and if so, is it just unequitable to increase the compensation and by how much?

24.9 Should a penalty be ordered to be paid by the Respondent under s.12A ETA 1996?

Findings of Fact

[25]We start with the findings of fact in relation to loss of earnings.

[26]In the Claimant’s skeleton argument, Mr Onibokun argued that the unlawful acts led to the Claimant “suffering low moods and depression attributable to the direct conduct of the Respondent see her GP’s letter at RBH page 30.” (CSA paragraph 9).

[27]In CSA paragraph 10 it was argued that, as a result of her low mood and depression, the Claimant was unable to apply for work for a period of about 14 weeks. She then is said to have obtained work at HMP Highdown in a facility also operated by the Respondent but it was alleged in CSA paragraph 10 that “that had been terminated by the Respondent’s Kerry Martin and others” and “the same individual senior managers of the Respondent ensured that she lost that employment because of the alleged issues with the Claimant’s practice”.

[28]We were referred to LHB page 207 which is an email from the Interim Head of Healthcare to a Surrey Prisons Performance & Information Analyst of the Respondent dated 19 June 2019 which included the paragraph “we will probably be contacting Brenda about this member of staff as we had some concerns regarding her conduct / practice which I can’t remember the details of but I know someone who can.”

[29]We were also directed to LHB page 204. This is an email from the Primary Care Clinical Lead at HMP Highdown to the Claimant saying that he wished to confirm that certain hours had been worked with the agency and would be in touch if any shifts needed covering but at present their in-patient unit was fully staffed.

[30]The Claimant’s allegation is that this communication caused a further period of low mood and depression postponing a final return to work from 15 July 2019 at HMP Bullingdon. (See RHB page 40 to 49 which are payslips in which the Claimant is described as the contractor and the payment by Healthcare Solutions Services Limited is apparently made to a company called George Christine Limited.)

[31]During the course of the hearing, it emerged that the Claimant had relatively recently sent additional documentation to Mr Onibokun that had not been disclosed to the Respondent’s Representatives. Four email chains were then sent to the Respondent’s Representative and to the Tribunal. We take them into account in full but there are two exchanges in particular that stand out. There is an exchange via emails between two individuals working for Epsom and St Helier University Hospital Trust on 28 May 2019 where the Lead Nurse for Safer Staffing reports meeting the Claimant on that date, that the Claimant just having joined the bank, that the Claimant is dual trained (in other words she is both a registered nurse and a registered mental health nurse) and she may well be looking for a substantive post with the Trust in the future. This was responded to enthusiastically the same day and there was a suggestion that dates for shadow shifts would be available in short order. On 08 July 2019 the Claimant then emailed to say that she was available to start shadow shifts imminently.

[32]The other email chain starts with an email from someone with the Respondent Trust dated 01 May 2019 attaching forms that would need to be completed to enable the Claimant to work from the bank at HMP Highdown. This was chased up by that individual by 15 May 2019 and the same day the Claimant replied to say that she would be available for work as from 20 May 2019 to work between 5 and 6 days a week.

[33]In the absence of a specific remedy statement, the Claimant had started her evidence by confirming the truth of her original statement and also of her schedule of loss at RHB page 03. This schedule of loss included the statement “the Claimant was unable to work between 22 February 2019 and 06 June 2019 because of depression and anxiety caused by the Respondent’s actions.” That statement was plainly inconsistent with the emails that were disclosed during the course of the remedy hearing. We consider that this failure to be open and transparent in her disclosure of documents does damage the Claimant’s credibility about precisely when she was well enough to seek alternative work.

[34]The GP letter at page 30 dated 09 February 2021 reads as follows: “This letter is to confirm that during the calendar year of 2019, the above patient consulted one of my colleagues while she was employed at London Heathrow. On review of the case notes, the above-named patent (sic) stated that she was experiencing low mood and stress, which the patient attributes to stressful circumstances regarding her employment at the time. No medication was issued on this occasion.”

[35]The letter does not go so far as to say the Claimant was unable to work at the time when she consulted her GP or that inability to work was as a result of stress and low mood. There is also the curiosity that it appears to suggest that she had the consultation whilst she was employed at London Heathrow and therefore it is difficult to see that it supports the Claimant’s account that she suffered stress and low mood after 22 February 2019.

[36]The contemporaneous documentary evidence suggests that by 01 May 2019 she was making enquiries about working at HMP Highdown and stated on 15 May 2019 that she would be available to work from 20 May 2019. It is also clear that she must have approached Epsom at some point prior to 28 May 2019.

[37]Nevertheless, as Ms Motraghi realistically accepted, there probably was a period when she was not well enough to work – the question is how long. We then need to consider how long it would take to find work had she been acting reasonably from that point onwards. We make detailed findings about the impact on the Claimant of the events of 10 to 22 February 2019 below. However, we accept that the level of distress that she experienced in that period caused a short period during which she was unable to work. It was suggested to her in cross examination that she was not working because she was looking after her sister but we accept that she had been staying with her sister throughout the period covered by the unlawful incidents and not just after them. We do not think that any care she provided for her sister was the reason why she was not looking for work in that particular period.

[38]Had there been useful medical records with the Claimant’s GP then no doubt the claimant would have obtained them. The Claimant said she could not now remember whether she went to the GP prior to 21 February 2019 although that is the implication of the GP’s letter.

[39]The Claimant emphasised that as a mental health nurse herself, she was in the position to treat herself and to know what to do to lift her own mood. Her evidence was that: “If you have low mood and depression and anxiety you cannot say I don’t have it. It comes and goes. I told the GP I was dipping in and out. That doesn’t mean that I didn’t have depression. I was trying hard to be strong for myself.”

[40]She continued “I’m unlike someone who has not learnt therapy I know how to lift myself up again. That doesn’t mean that I didn’t start any depression it was myself with coping mechanisms that lifted myself up… those are the things that come and go. I am better still now it’s depressing to go back on this case I wish I’m not going to be depressed I have not come out completely.”

[41]The Claimant then said that she was not sure whether we were aware that after she had been told to bleach her skin she was depressed but when Kerry Martin told her she was worried about the language she had used in her emails, that had finished her off and then the Claimant said for the first time in these proceedings “I was suicidal”. The evidence she gave to us suggested that she was explaining not simply that she had suicidal thoughts but that she had made some plans to put those thoughts into action. This was not a claim the Claimant had made in any of her previous evidence, and she said that she had not visited a doctor.

[42]Our view on this is that if the Claimant had had serious intent to do herself harm then as a mental health professional, she surely would have sought professional assistance. Her low mood and depression cannot have objectively been so bad because she was able to have a sense of detachment and objectivity of her condition that enable her to treat herself. We accept that the Claimant felt depressed in the sense that that word is used in common parlance and was tearful and reasonably felt unable to work for a comparatively short period of time while she recovered. The gist of what she said about the comments by KM were that they caused her to doubt herself and to doubt her ability to do the job. Given that the evidence about suicidal ideation and some planning to put that into effect came unforeshadowed in cross-examination we think, on this occasion, that the Claimant was exaggerating somewhat. Thankfully partly due to her family, her friends, her faith, her strength and character and training, she was able to recover from the lowest point of her mood to the point where she was able to offer herself for work again.

[43]Based on the late disclosed documentary evidence, we think that that happened shortly before the 01 May 2019.

[44]Mr Smith’s evidence shows that there was ample work available for nurses with her skills, training and experience within a reasonable travelling distance of the Claimant’s home. The Claimant was dual qualified and had shown herself willing to work in the most challenging environments. We accept that from the point that the Claimant acting reasonably started to look for work with reasonable diligence she would have been able to find work that completely mitigated her loss within a matter of weeks. The exchange prior to the arrangement for her to work at HMP Highdown shows that the Claimant would have been available from 20 May 2019. Since we accept that she was fit ready and willing to work from no later 01 May we think that that is good evidence that she could have found work to fully extinguish her loss by 20 May.

[45]The Claimant has argued that the period of her loss of earnings should in fact continue into July because of she alleges is a further period of low mood caused by the loss of work at HMP Highdown.

[46]If the Claimant concluded that the explanation given to her at LHB page 204 that the in-patient unit was fully staffed was both inaccurate and due to false information about her fitness to practice being passed to the management at HMP Highdown then that may have caused her to be upset. However, it is not an action that has formed any part of these proceedings. It is quite possible that the Claimant did not included it an allegation against the Respondent within these proceedings for good reason. We have not made and have not been asked to make findings that the email at LHB page 204 was not a valid explanation as to why the work she had at HMP Highdown ceased to be available. We are of the view that any ill-health that the Claimant suffered immediately after being told that no further shifts were available at HMP Highdown is not something that can be laid at the door of the Respondent. Our view is that any periods without work after 20 May have not been shown to have been caused by the acts that we have found to be unlawful and should not be compensated for.

[47]For the reasons set out above we have concluded that the period of loss of earnings during which the Claimant had no income but would have been earning with the Respondent had the events of 22 February not taken place is the 23 February 2019 to the 19 May 2019 inclusive. The Claimant was fit for work by the end of April and, acting reasonably, would have found work that would have completely extinguished her losses no later than 20 May. We are satisfied based on the evidence of Mr Smith and the Claimant’s later experience that she would have been able to find sufficient hours work in a week at Band 5 that would have extinguished her losses despite the fact that we are unable presently to precisely assess what these are. The reason we can be confident of that is that the work she was seeking would have been compensated at least Band 5.

[48]That will give the parties the number of weeks over which the loss should be calculated. The average weekly loss should be calculated by taking an average of the income received by the Claimant net of tax and national insurance taken over the last 12 weeks of the work that she did for the Respondent.

[49]Interest will be awarded on any loss of earnings under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 at the rate of 8% per annum on any award for loss of earnings from the midpoint between the 23 February 2019 and 19 May 2019 on the one hand and the decision day which is the decision day which is 14 December 2022 on the other. It is the failure of the Claimant to ensure that reliable evidence about the extent of her losses was available which means that the amount of the award for loss of earnings cannot be finalised with this remedy judgment.

[50]We turn to the question of what the Claimant has shown by way of injury to feelings. In the absence of detailed statement evidence about the impact of the Claimant of the incidents we think it is right, in order to do justice to the case, that we consider not only such evidence as such is in the Claimant’s original witness statement but evidence she gave at the liability hearing as well as at the remedy hearing.

[51]The Respondent conceded that paragraphs 21 and 24 of her witness statement set out some relevant matters. In paragraph 21, she replicated the exact words from the Datix by which she reported the first of the unlawful acts of harassment. That description includes the following information about how she felt about it: “The whole incident was handled atrociously by the nurse in charge L not taking into consideration the impact on me as a person. I was expecting support and reassurance from my nurse in charge whilst I was verbally abused by a patient, but I was appalled to get second abuse from her as my colleague telling me something that I cannot change. I was born black I will live black and I will die black, what is wrong by being black. I felt very insulted, discriminated, bullied, harassed, and abused. I was dehumanised in front of my colleagues, I am now going through a lot of stress and has impacted on my health, it is unbearable, it is emotional and psychological, and I did not seek equality and diversity in the workplace as stated in the Equality Act 2010. On the 10 February 2019 I swapped with the nurse from CLNB and the manager on duty authorised that”

[52]She goes on to describe the second incident in paragraph 24 of the statement. The Claimant repeats her feelings about the two incidents in largely the same terms as she used in Datix. There is also relevant information in paragraph 27 when she says that due to the psychological impact on her of the incidents she had written to her agency on 19 February 2019 to notify them that she wanted her shifts cancelled because she did not want to have allocated shifts where she would have to work with LS and may come into contact with the detainees who had been racially abusive towards her. She refers to an email at LHB page 150 where the reason she gave for wishing to cancel the shifts is that she had become very depressed after doing the last shifts last week: “though I am trying hard to be strong but I need to recover fully psychologically and emotionally, I’m vulnerable but I know I will recover because I am a fighter. I am not going to let this incident to drown me. I will fight to keep my head above the water.”

[53]Although the Claimant does refer to the detainees in paragraph 27 she had remained at Harmondsworth for a number of shifts after the original incident involving the detainees and it was the incident involving LS or rather the two incidents involving LS that caused her to write to cancel the shifts in the future. It seems to us that for the Claimant, when her colleagues started to tell her that her race was the problem and that the solution to the abuse that she was experiencing from the detainees was for her to change something about her appearance that had a particularly detrimental and damaging effect on her. The gravamen of what was done is that it sends a message that it was the Claimant that needed to change and that her reaction to the abusive she was experiencing was wrong.

[54]We think it right also to remind ourselves that the Claimant had never experienced anything of that nature from LS before. On the occasion of the first incident on 10 February 2022 the Claimant had been tearful about it and had needed comforting by MM later in the day. When she was crossexamined about the detail about the day in question and it was suggested to her that she spent the evening meal break with LS and DW she said: “there was no way that I could spend my tea break with LS I couldn’t even look at her. When she came to tell me to do the evening medication I didn’t even look at her after that racial abuse.”

[55]She talked about her motivation for bringing the Tribunal claim in her oral evidence and said that it was not about the money it was about justice she hadn’t wanted to come this far: “If the Trust had sent me to be down the road for LS I would have had an apology. It is not about the money it’s about the apology. I was reminded about something that I know I’m black.”

[56]She went on to talk about how people frequently deny such cases happening but that the truth was the incident happened. She described herself as being horrified to learn that the guard had not back her up.

[57]Her description of her reaction the following day was that, when she had seen LS in the corridor, she had had a panic attack and become very anxious. She had gone into the office and picked up the phone and called the manager on the phone and said she was unwell, and she was going home. However, she explained that the manager had been kind and arranged for the Claimant to swap with someone at Colnbrook. So, the presence of LS had provoked a visceral reaction from the Claimant who had needed to change her working environment as a result.

[58]The Respondent argued that there is no evidence that the Claimant suffered injury to feeling as a result of the incident involving KM. However, our note of the oral evidence of this incident explained in some detail about the events and what happened which are the subject of the findings that we have set out in our liability judgment. She went on to say that: “I was in shock and disbelief I thought she was a nice person she stood up when I was leaving and she tried to hug my shoulders and said I must agree with her that I have mental issues and I said I don’t.”

[59]She described there being other managers outside the room where this happened and said “none of them had come in and stop [KM] saying that I had mental illness which I don’t have”. All members of the Tribunal have a clear note that at this point in giving evidence the Claimant broke down in tears and needed time to recover. Following the restarting of evidence she said that she had processed the incident with LS but “this one”, that is to say the incident with KM – “I’m still trying to work it out. I work in a team in a prison. Where I work I got a psychologist to process this one for mental health. I told the consultant I never thought … that we tell prisoners that we diagnose with mental health … I never … it can impact on their life so much. I am very careful with what I say. I don’t know what caused KM to associate with mental health other than the incident with the bladder problems. Perhaps she doesn’t know my background. I was raped since then I have never had a good bladder. I am a mother. I cannot just pee.”

[60]Based on this oral evidence we find that at the time of the hearing before us, the Claimant was more affected by the KM incident than by the LS incident and, as she said, was still processing how and why it had happened.

[61]So in respect of the incidents that caused injury to feelings there are three dates: 10 and 11 February 2019 and then 22 February 2019. On the last of these the comments were made by KM and the Claimant was told that she was no longer to work at Harmondsworth. In between these times the Claimant had originally cancelled her shifts and then rebooked shifts. After the incident with KM she no longer worked at this facility for the Respondent. She was unwell and unable to start looking for work until the end of April 2019 so this must be period of time when she was psychologically most affected by what had happened.

[62]She felt sufficiently confident of this Respondent as operator of a workplace environment to apply for shifts with them sometime in May 2019, albeit at a different facility. Nevertheless, it is clear to us that even more than two years after the events in question, the recollection in particular of the incident of 22 February 2012 still powerfully affected the Claimant. We also remind ourselves of the letter at LHB page 160. This is an email from the Claimant to ND on 22 February 2019 to inform him about the instruction by KM not to continue with her bank application she concludes, “My friend you won’t see me again there but I will remember your kindness. Please keep in touch. God is in control.” These words seemed to us to speak of great sadness at what had happened.

[63]When asked about the KM incident in oral evidence at the remedy hearing, the Claimant gave this evidence: “Either you go to the GP – I said not going to do it but this is how I feel that I feel useful. Without my mental health - I can’t work if I cannot be myself. I don’t know what KM saw in me to make her say I have mental health issues. I feel useless. I understand how people feel when they are suicidal I managed myself and with the support of friends I was looking after someone else with physical health problems I had to be strong in front of her.”

[64]Prior to the events in questions the Claimant had enjoyed her work. She must have found the work of providing care to the detainees very challenging, but she seemed to have had good working relations with her colleagues. We accept that the KM incident caused the Claimant to doubt herself and, to some extent, to doubt her fitness to work.

[65]Having set out our findings on the period of time over which the Claimant was affected by the incident and the depths at which she suffered at the various points in time we come to assess the award of compensation under the principles set out in the case of Vento.

[66]We have concluded that this award falls squarely in the middle band. There were two separate but interconnected sets of incidents involving two different individuals. The first pair of incidents led the Claimant being very offended, tearful and to experience a panic attack the next day when confronted with the wrongdoer. She felt it necessary to seek shifts to avoid the wrongdoer. She was still in a state of expectation that the investigation by the Trust would happen and would deal with the matter when she was told by KM, in an act of victimisation, that her contract would be terminated, and she should not work for the Trust in the future. She had worked there for some 15 months prior to this and had as we said largely enjoyed her work. On the other hand, as an agency nurse she was able to find work elsewhere quite easily and probably had worked in large number of facilities in the course of her career. So the loss of this particular employment is not the same as a loss of a long convivial employment and the impact on the Claimant will ultimately be more transitory as a result. She still experienced some feelings of anguish as a result, in particular of the KM incident, at the time of the hearing some 3 years later. On the other hand, because of her training and her resilience she was able to largely recover from the worst of the psychological effects within a few months. We consider the appropriate level of award to be £17,000.00.

[67]To that should be added interest under reg.6(1)(a) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. 16 February 2019 is the mid-point between the two sets of incidents. Interest will be calculated from that date to the date of assessment which is 14 December 2022. This amounts to approximately 3 years and 10 months at 8% per annum at £113.33 per calendar month. Over 46 months that comes to £5,213.33.

[68]In her submissions, Ms Motraghi also referred to the case of Alexander v The Home Office and the guidance that there must be some special element that takes the case beyond discrimination case in general. She also referred to the guidance that cases of this kind often fall into three categories: one concerns the manner in which the offence is committed; the second the motive; and the third where the subsequent conduct of the employer was unnecessarily offensive.

[69]In discrimination cases the risk of overlap is particularly acute when considering an argument that there should be award of aggravated damages for the manner in which the offence was committed since a compensatory award for injury to feeling will frequently take into account feelings of upset and there is a risk that a finding of upset caused by the alleged aggravating factor will cover the same ground. We also accept that we have already made a finding that LS did not deliberately intend to offend and that is relevant to the question of the Respondent’s motive.

[70]The Claimant argues that there are 5 matters that should lead to an award for aggravated damages. The specific matters that the Claimant argues should be reflected in the award for aggravated damage are70.1 promoting LS to Band 6;

70.2 allegedly relying upon inaccurate evidence;

70.3 the 2018 incident;

70.4 the reference by KM to the Claimant’s mental health; and

70.5 the email at LHB page 207 saying that there were concerns about the Claimant’s practice.

[71]It is clear that the fourth of those is an incident of unlawful victimisation and race-related harassment in itself. That has been compensated for in the award for injury to feelings and should not be the subject of an award for aggravated damages.

[72]Although there is reference to the promotion of LS in the CSA there is no evidence from the Claimant in her statement or in her oral evidence that we have found that evidence that she has been particularly offended by this. We do not have evidence of when she heard about or what the effect on her was. We also remind ourselves that at the time the Respondent had carried out an internal investigation. Although we were critical of this investigation, the fact remains that, at the time, it did not reveal any supporting evidence to corroborate what the Claimant was saying against LS. Professional fitness for practice proceedings had cleared her. In those circumstances, we do not think that the Respondent can be said to have acted in a highhanded way by promoting LS. However, primarily we reject this argument because there is no evidence of the impact on the Claimant.

[73]In CSA paragraphs 40 to 42, the Claimant’s Representative criticises the evidence of the Respondent and describes the manner in which the proceedings were defended “particularly harrowing for the Claimant”. The obvious problem with this submission is that, in the absence of a recent witness statement, the Claimant has not provided evidence that the proceedings were particularly harrowing for her. The consequence of the inconsistencies in evidence given by or on behalf of the Respondent was that the Claimant’s evidence was preferred, and she succeeded. We think there is a risk here that the Claimant is asking us to make an award that would in effect penalise the Respondent for losing. That is not the purpose of an award of aggravated damages.

[74]The next matter relied on is the 2018 incident. We refer to this incident in paragraph 35 of the reserved judgment, but it was not necessary then to record any details about it. It is therefore necessary to explain a little more detail about this incident now.

[75]The first mention of the 2018 incident within the proceedings comes in the Grounds of Response, paragraphs 8 to 9, which say as follows, “8. There were some agency workers whose conduct were of a concern to the Management Team. One issue which was brought to the Respondent’s attention was the behaviour of the Claimant. Of significant concern was CCTV recording which had been reported on Datix (the incident management recording system) on 05 June 2018 which clearly showed the Claimant in one of the nurses’ rooms which was used to treat patients. The CCTV footage showed the Claimant removing her trousers and urinating into a wastepaper bin, notwithstanding a toilet being next door and just a few steps away. She then emptied the content of the bin down the sink. 9. When the Claimant was initially asked about this, she had confirmed that she had not been unwell that day but she did not think she had time to reach the toilet and in any event did not like using the toilets, as patients may have also used them. Unfortunately, due the Claimant’s manager being on sick leave followed by numerous other absences in the Management Team, this matter was not actioned by the Respondent at the relevant time.”

[76]The 2018 incident was also referred to in MP’s statement and it was clear that she had been provided with scant details of the incident by Mitie. There is no explanation in the grounds of response as to why this factual allegation is in there. It is not drawn on as the basis of any defence, for example, that had the actions alleged against the Respondent not happened, they would have terminated their relationship with the Claimant in any event once the 2018 incident was “properly” actioned.

[77]The fact that this had been raised led to the Claimant calling two witnesses to deal with the allegation in oral evidence. PW provided evidence of this matter but also of the allegations of racism, but AG was called only to give evidence about the 2018 incident. In particular in AG’s paragraph 13 she explained the way in which the matter was investigated and gave evidence that, so far as she was concerned, the Claimant had been cleared as fit for as fit to practice on substantial grounds by an investigator who knew the full situation that the Claimant had been in. This is something that the Respondent could have found relatively easily by searching for emails from the relevant period of time. At LHB pages 94 to 96 we can see that the Claimant herself reported the incident and gave full details. She said that the toilet facility was not available in reception in Harmondsworth, that she had tried to get to the toilet in time, but the door had not opened, that she had acted in desperation and was mortified by what had happened. It is clear from the end of this report that she knew that she had been caught on camera and had been told that she had to write a statement.

[78]We have set out in paragraph 57 above that the Claimant has a deeply personal history which means that she has continence problems.

[79]In the end this matter was not referred to in cross-examination or submissions.

[80]We conclude that the 2018 incident was referred to by the Respondent in the Grounds of Response probably because they wished to portray the Claimant in a particular way. No explanation has been given to us as to why the incident was referred to. There are two possible explanations. Initially it may have been thought potentially relevant to remedy at a time when the Respondent had not done enough investigation to realise that the matter had been resolved by management at the time – but that is not followed through in the Grounds of Response. We are driven to the conclusion that it was referred to because the Respondent tended to suggest in some way that a person who had behaved in this way was not credible and it was intended to be used as an attack on the credibility of the Claimant. It certainly appears that this was the view of the Mitie manager who provided the pejorative account of this incident to MP (see our paragraph 97 and 98 of the reserved judgment). We found in paragraph 100 that MP was probably influenced by the information in the way in which she handled the Claimant’s complaint. Given that we rejected the allegation that this was unlawful treatment this is not something for which the Claimant has been compensated in our award of injury to feelings.

[81]However, the fact that the incident was raised as it was within litigation meant that a hugely embarrassing incident had to be covered by the Claimant in a public hearing. This was totally unnecessary. Had the Respondent done relatively easy investigation they would have realised that the incident had been dealt with on its merits at the time. So far as we can see, it should never had been brought up within the litigation and we find this was raised in an attempt to throw doubt on the Claimant’s credibility.

[82]We refer to AG’s statement evidence and PW paragraph 13. Both gave evidence that the then Primary Care Lead, PW’s line manager investigated the matter thoroughly and cleared the Claimant to return to work. The evidence we had on the last occasion was that this same line manager was responsible for Datix handling. The raising of this incident led to the Claimant calling upon her colleagues at no small inconvenience to them to support her in rebutting the insinuations about her practice which were never in the end relied on by the Respondent. We go so far as to say it was reckless of them to raise this allegation without any real thought about its forensic use. We consider that this conduct falls within the description of high handed or oppressive behaviour which is separate to the incident itself and which merits an award of aggravated damages. It caused the Claimant to feel obliged to refer back to incidents in her past that are deeply personal, and she should not otherwise had been required to reveal in a public hearing. We could tell from her demeanour when discussing it how distressed she felt about it.

[83]We are alert to the risk that, to a limited extent, the injury to feelings experienced by the Claimant as a result of the comment by KM about mental health treads the same ground as the indignity suffered by the Claimant in having to deal with this particular incident within the litigation. That is because of the Claimant’s suspicion that KM somehow knew about the 2018 incident and that was the reason why she cast aspersions about the Claimant’s mental health.

[84]However, we think this is quite distinct from the indignation the Claimant has suffered at having to deal with that incident within these proceedings. Her description of how she felt on 22 February and how she has felt since when trying to rationalise what KM said to her is separate to the indignity, she has felt in having to respond to the allegations in paragraphs 8 and 9 of the grounds of response. Any overlap of the injury here is extremely marginal.

[85]Interest would be available on this part of the award as well as on the award for injury to feeling. However, we have found it difficult to identity the precise date of the injury for which aggravated damages are being awarded in this instance. The Grounds of Response were sent to the Claimant on 30 August 2019 and so that was when those paragraphs first came to the Claimant’s attention. Ms Pittarch’s witness statement is signed on 30 July 2021 but we are unaware of the date on which witness statements were exchanged. The Claimant has had to deal with the allegation in the way she had prepared the case and in the detail in the statements prepared in support of her case, in particular that of AG. It was not until the liability hearing that it would become clear that the Claimant was not going to be asking questions about the 2018 incident. This means that the acts of the Respondent that suggested reliance on it have continued to have over a period of time.

[86]We are also of the view that the main part of the injury suffered by the Claimant is in respect of the unlawful acts of discrimination and victimisation themselves. Because of the difficulty of identifying the exact date on which particular elements occurred and the fact that our assessment of compensation for aggravated damages would include the Claimant’s feelings about those steps taken within the litigation over the course of a period of time we think that it could potentially lead to a injustice to the Respondent to award interest on a whole sum from some notional mid-point within the period from presentation of the grounds of response to the date of the hearing. Instead, we have decided to take account of the fact that interest would be awarded in coming to the figure we assess the injury to feelings at. We have decided to make a separate award of aggravated damages of £3,500.00 to include any interest payable in respect of that.

[87]There is a short answer to the allegation that the claimant should benefit from an uplift on damages for an unreasonable failure to comply with the ACAS Code of Conduct relating to grievances. That is that the Claimant was not an employee of the Respondent and therefore the ACAS Code did not apply to this situation. We do not make an award under s.207A TULR(C)A 1992.

[88]We turn then to the suggestion that we should order a penalty under section 12A ETA 1996. It is at this point that we consider the apology at RHB page 50 is of particular relevance. We note that the Respondent has put in place training and accept that this shows they are trying to rectify the limitations that the Claimant was working under, namely that a member of agency staff it was not clear what route she should take to get an effective investigation of a complaint of so a serious matter as race-related harassment. Although in the CSA Mr Onibokun refers to the case of First Great Western Limited v Waiyego (UKEAT/00564/18) he did not set out in the CSA the basis on which it was argued a penalty should be ordered in the present case.

[89]The Claimant added some oral submissions to CSA paragraph 63 and 64. There were that the wrongdoers were senior staff and that an apology could have been offered sooner. Mr Onibokun countered the Respondent’s argument that there had been an NMC investigation that exonerated LS and KM and that the Trust was bound by that with an argument that the NMC’s outcome was reached after considering flawed evidence.

[90]Nevertheless, we do not think that this is the sort of case where there has been a deliberate avoidance of responsibility rather than a somewhat cursory investigation that was too quick to dismiss what the Claimant has said. This is not, in our view, the sort of matter that merits a penalty. There was a casualness and a complacency about what staff, and in particular agency staff, had to deal when treating detainees at Harmondsworth IRC and we sincerely hope that the review referred to in the apology addresses that, but we do not see a basis for a specific penalty under s.12A ETA 1996. REMEDY JUDGMENT

Findings of Fact

[1]By a reserved remedy judgment sent to the parties on 23 February 2023, the respondent was ordered to pay to the claimant general damages in compensation for race related harassment and victimisation of £25,713.33, including interest

[2]The respondent shall pay to the claimant compensation in respect of loss of earnings caused by race related harassment and victimisation in the sum of £13,375.51 including interest.1

[3]Since the total compensation payable is £39,088.84, in order that the claimant’s award should not be unfairly reduced by reason of the incidence of tax, the award will be grossed up as follows: Amount by which the award exceeds £30,000 £9,088.84 1 This is an agreed calculation based upon paragraphs 5 to 7 of the judgment sent to the parties on [DATE]. Case Number: 3319570/2019 Grossing up at an assumed marginal rate of tax £2,272.21 in y/e 05.04.23 of 20% (£9,088.84 X 100/80) - £9,088.84 Total compensation (£39,088.84 + £2,272.21) £41,361.05 LESS damages paid on account (£25,713.33) Balance remaining to be paid £15,647.72

[4]This judgment shall take effect 14 days after the date on which it is sent to the parties.