Dr R Akintayo v Dumfries and Galloway Health Board and Others: 8000792/2024 and 8000001/2025
EMPLOYMENT TRIBUNALS
Case No 8000792/2024, 8000001/2025Venue GlasgowHearing 28, 29, 30 and 31 July and 1, 4, 5, 6, 7, 8, 11, 12, 13 and 15 August 2025 with members’ meetings on 18 August, 12 September and 24 October 2025
Between
Dr R AkintayoClaimantDumfries and Galloway Health Board and OthersRespondent
Before
Employment Judge M RobisonMs A Stobart (instructed by Counsel) for respondentDate 10 November 2025
JUDGMENT
[1]The claim of direct discrimination because of race under section 13 of the Equality Act 2010 succeeds in regard to the claim against the first respondent in respect of the failure or refusal to put the claimant’s name in the consultant field of biologic prescriptions.[2]The claim of direct discrimination because of race under section 13 of the Equality Act 2010 succeeds in regard to the claim against the first and third respondents in respect of the outcome of the grievance hearing to the extent that it sustained the above discriminatory practice.[3]The claim of harassment related to race under section 26 of the Equality Act 2010 succeeds in regard to the treatment of the claimant on 11 February 2021.[4]The claim of constructive unfair dismissal under section 95 the Employment Rights Act 1996 against the first respondent succeeds.[5]All other claims against all three respondents are dismissed.[6]A further final hearing on remedy will now be listed.
REASONS
[1]The claimant, a consultant rheumatologist, lodged a claim (8000792/2024) with the Employment Tribunal on 6 June 2024 against the first respondent claiming race discrimination.[2]At a preliminary hearing which took place on 13 November 2024, the claimant’s applications to amend his claim dated 10 and 20 September 2024 and 16 October 2024 were allowed (subject to time bar). The claimant’s application to amend to include six additional respondents dated 7 October 2024 was refused.[3]The claimant resigned on 15 November 2024.[4]On 1 January 2025, the claimant lodged a further claim (8000001/2025) against the first respondent as well as the second and third respondents. He claimed unfair constructive dismissal, race discrimination, notice pay (wrongful dismissal), arrears of pay and failure to provide a written statement of employment terms.[5]By case management order dated 27 January 2025, the two claims were combined. At a preliminary hearing on 20 March 2025, this final hearing was listed to consider liability only.[6]Parties liaised in an effort to agree a list of issues. A list of issues was considered at the outset of this final hearing, to which some adjustment required to be made.[7]After explaining that this Tribunal does not have jurisdiction to hear a complaint regarding a breach of the public sector equality duty, the claimant accepted that and it was deleted from the list of issues.[8]The claimant also advised that he was only relying on two “examples” to support his claim that the respondent failed to address selective and less favourable treatment in regard to what became known as the “outpatient issues”, which he had plead as an act of direct race discrimination.[9]Further the claimant confirmed that he was no longer relying on the “unlawful deduction from wages issue.”[10]Broadly, the remaining claims, summarised from the list of issues considered in detail in this judgment, are: 1 Direct discrimination against the first respondent in regard to what became known as “the prescription issue”; failure to inform the claimant about the appointment of Dr Anne Drever as the specialty team lead; and failure to deal with the outpatient issue. 2 Direct discrimination against the first, second and third respondents in regard to sustaining a discriminatory practice of writing “department of rheumatology” on biologic prescriptions. 3 Harassment because of race in regard to the conduct of Nurse Petra Cannon; the conduct of Dr Nadeeka Rathnamalala; and putting the name of the secretary in the consultant section of the prescriptions. 4 Victimisation following protected acts, in regard to the detriments of: withdrawal of support by the education centre for a lecture series organised by the claimant called “the grand round” and a failure of the first respondent to reverse that decision; building a case against him and isolating him; dismissing his complaint of racism; and deliberately misusing the grievance policy to make recommendations about the claimant’s alleged behaviour. 5 Indirect race discrimination regarding the retention in post of two colleagues with roles in medical education; and the operation of the bullying and harassment and grievance policies and the workforce policies investigation process. 6 Constructive dismissal. 7 Wrongful dismissal (failure to pay notice pay). 8 Failure to provide written statement of terms.[11]At the hearing, the Tribunal heard from the claimant, and from Dr Paul Ames, consultant haematologist who also works with the respondent, and (remotely by video) from Dr Mubarak Mustapha, sometime junior (resident) doctor with the respondent. For the respondent, the Tribunal heard from Ms Pamela Jamieson, head of HR (the second respondent) and Mr Mark Kelly, executive director of nursing, who heard the claimant’s grievance (the third respondent). Thereafter the following witnesses gave evidence: Ms Suzanne White, clinical nurse manager; Ms Linda Shaw, charge nurse; Mr Peter Girvan, deputy general manager; Dr Nadeeka Rathnamalala, consultant nephrologist; Ms Nicole Hamlet, chief operating officer; Dr Heather Currie, locum consultant gynaecologist; Dr Ken Donaldson, medical director; Dr Andew Russell, consultant in general medicine and rheumatology; Ms Petra Cannon, rheumatologist nurse specialist; Ms Anne-Marie Coxon, education centre and library services manager; Dr Peter Armstrong, consultant in emergency medicine; Dr Louise Cumbley, consultant psychiatrist; Dr Anne Drever and Dr Lucy Moran, both associate specialists in rheumatology.[12]The Tribunal was referred by the parties to a large number of productions from a joint “bundle” of productions (containing almost 2,500 pages), which are referred to by page number. A supplementary “bundle” (SB) was lodged by the respondent at the outset of the hearing, and additional documents were lodged during the course of the hearing, including a so-called “prescriptions bundle” (PB). These documents are referred to by volume and page number. Findings in Fact[13]On the basis of the evidence heard and the productions lodged, the Tribunal finds the following facts, relevant to the issues for determination only, admitted or proved.
Background
[14]The claimant is a black Nigerian national. He is a qualified doctor who obtained his primary medical qualification from Ladoke Akintola University of Technology in Nigeria in 2008. He is registered with a licence to practise with the GMC from 24 April 2018 and he has been on the specialist register for rheumatology from 7 February 2022. He is consultant rheumatologist (189).[15]The claimant commenced employment with the respondent as a full time locum consultant in rheumatology on a fixed term contract from 16 December 2019 to 29 November 2021. He was issued with a consultant contract on 13 November 2020 setting out his terms and conditions (190).[16]When the claimant commenced employment he was a member of the rheumatology division located within the acute and diagnostics directorate. He worked alongside another consultant Dr Andew Russell who had joined the team as a consultant in general medicine and rheumatology in April 2018.[17]Andrew Russell’s colleague when he joined the team, Dr Micheal McMahon, subsequently retired in February 2019. Prior to the arrival of Andrew Russell, Micheal McMahon had been the only consultant in the department, thus de facto the clinical lead. On his retirement, Andrew Russell became the clinical lead, a position which subsequently became known as the specialty team lead (STL), which was effectively “head of department”, which is an administrative role. Between February 2019 and December 2019 he was the only consultant in the department.[18]There were two other associate specialist doctors with specialism in rheumatology on the team, namely Dr Anne Drever and Dr Lucy Moran, who have both worked in that department for over 20 years.[19]There were also three nurse specialists on the team, at the relevant time Petra Cannon, Ishbel Crane and Jane Murray. Ishbel Crane retired in or around early 2021, and although there was an overlap, she was replaced by Andrew Wilson.[20]Petra Cannon is the lead nurse in the department. She is a nurse prescriber, while the others were not. This meant that she could sign prescriptions. The practice was that the doctors would sign prescriptions for new patients or where a patient had transferred, and Petra Cannon would sign repeat or so-called maintenance prescriptions.[21]In September 2019, Andrew Russell was appointed the clinical director of medicine, at which time he dropped some of his clinical activity, working one day each week in that leadership role.[22]The claimant’s colleagues were aware of his particular concerns following the Dr Bawa-Garba case, a doctor who was removed from the medical register before being restored following a decision of the Court of Appeal in 2018 (1764). Dr BawaGarba was also a black Nigerian national. The claimant was aware, and made his colleagues aware, that a disproportionate number of complaints from employers relate to ethnic minority doctors. The claimant therefore had a heightened concern of the necessity to follow best practice due to his ethnicity. His clinical colleagues were aware of this. Senior leadership team issue[23]At the start of the pandemic, in early March 2020, Andrew Russell was deployed full-time to a medical leadership role. At that time the organisation operated under a “command and control” model, so formal recruitment procedures were suspended. Andrew Russell approached Anne Drever to request that she take over the role of specialty team lead.[24]Although no formal announcement was made, other colleagues became aware that Anne Drever had taken on that role, but the claimant was unaware. While the role of STL primarily involved chairing the weekly medical department team meetings, Andrew Russell continued to attend those meetings. Otherwise there was very little visibility that Anne Drever had been appointed STL, not least because during the pandemic many meetings were on teams.[25]After March 2020, the claimant continued to submit requests for leave to Andrew Russell which Andrew Russell signed (189). Although these would normally be passed to the STL, Andrew Russell did not make the claimant aware that these should have been passed to Anne Drever.[26]In or around October 2020, Anne Drever advised the claimant that she had been appointed STL and had been in that role for “a couple of months”. The claimant found out that she had commenced the role in March 2020 after lodging these proceedings.[27]The first time Anne Drever arranged a full departmental meeting after being appointed was in November 2020. At that time she changed her e-mail designation to make it clear to all attending that she was arranging the meeting in her role as STL (196). Prescriptions issue[28]Biologic prescriptions were prepared by nurses. Blank templates, which were word documents, were completed. They were not necessarily pre-populated, and in any event were easy to change.[29]Given that Micheal McMahon was the only consultant in the rheumatology department until April 2018, his name was entered in the field marked consultant on these biologic prescriptions. When Andrew Russell commenced employment in the department in April 2018, usually the consultant field included the name of Micheal McMahon, as clinical lead. Such prescriptions were on occasion signed by Andrew Russell as prescriber. However, on a good number of occasions, the name Dr A Russell would appear in the consultant field, as illustrated by example prescriptions dated 10 October 2018 (PB62) and 14 December 2018 (PB 64). Such prescriptions may have been signed by Andrew Russell, Lucy Moran or Anne Drever (see PB8, 9) or Petra Cannon as the prescriber.[30]Petra Cannon said that Andrew Russell’s name was put in the consultant field because it was assumed that he would take over the clinical lead role when Micheal McMahon retired. Andrew Russell did not know when he commenced that Micheal McMahon was intending to retire soon. After Micheal McMahon retired, his name would occasionally still be inserted into the consultant field, in error.[31]The person whose name was entered in the consultant field did not require to be a consultant. This is illustrated by the fact that the name of Anne Drever who was also osteoporosis clinical lead for the hospital would be entered in the consultant field in biologic prescriptions for that service. The name of a locum consultant could be entered into the consultant field where the prescribing doctor was not a consultant (188 and PB7).[32]During 2020, the claimant raised concerns about the fact that in biologic prescriptions his name was not put in the consultant field when he was asked to sign prescriptions as the prescriber. The name Dr A Russell continued to appear there for prescriptions he was asked to sign for his own patients. The claimant was of the view that since he was the consultant who was issuing the prescription, his name should be put there.[33]He raised these concerns on a number of occasions with Petra Cannon in particular. Despite his requests, nurses continued to prepare prescriptions for the claimant to sign with the name Dr A Russell in the consultant box. Rather than delay issuing prescriptions, he would sign them and put yellow sticky notes on them asking the nurses preparing them to put his name in the consultant field (226). The claimant did not receive any replies to his requests and the practice of putting the name Dr A Russell on his prescriptions for his patients continued, without any explanation being given.[34]On 11 February 2021, Petra Cannon brought a prescription to the claimant which had the name Dr Andrew Russell as the consultant. The claimant called her attention to that fact again. She responded in very close vicinity to him, “when you become the head of the rheumatology service, we will start putting your name there”, putting emphasis on “you” and “we”. The claimant advised that he would discuss the matter further with Andew Russell (who was in the room) and Anne Drever.[35]The claimant raised the matter with Andew Russell immediately after Petra Cannon left. Andrew Russell suggested that Petra Cannon would be putting his name there because there used to be a single consultant in the department. He suggested that since that position was now different, they could look to changing practice. The claimant also raised his concerns with Anne Drever.[36]Despite his request, Petra Cannon continued to send prescriptions to the claimant with the name Dr A Russell in the consultant field. The claimant sought the advice of his defence union and he was advised not to sign such prescriptions. When he received prescriptions with the name Dr A Russell in the consultant field, he would draw the attention of the nurses to that fact, and frequently the prescription would be returned to him with a blank space instead. The claimant would then put his name in handwriting. This rarely happened in respect of other prescriptions to be signed by any of the other doctors.[37]On 16 February 2021, the claimant sent an email to Andrew Russell and Anne Drever in the following terms (203): “Hi Andrew, Further to our discussion on the issue of nurses preparing biologic prescriptions for me to sign with another consultant name, usually yours, in the consultant section of the paperwork, I have sought the advice of my defence union and they have recommended that I stop signing such paperwork and if I am being requested to continue to do the same, I should get an explanation as to why this should be so. As I have explained, I am not comfortable signing prescriptions for patients under my care with your name in the consultant section especially as you have not seen these patients or made the therapeutic decision. I believe this is not ideal and I worry that gradually chipping off standard practice is a recipe for the breakdown of the Swiss-cheese model of service delivery which should protect patient safety. I have pointed that out to the nurses on several occasions but it has not changed. The last time I called the attention of Petra Cannon to it, she told me, “when you become the head of the Rheumatology service, we will start putting your name there”. I would be grateful if we can change this practice but if we have to continue, I would appreciate being given some explanation behind it. I have copied in Anne in her capacity as the team lead.”[38]The claimant received no response to this e-mail, either from Andrew Russell or Anne Drever. Andrew Russell by this time was working in the medical leadership role and assumed that it was a matter to be dealt with by Anne Drever. Anne Drever did not respond to the e-mail because it was not addressed to her. The claimant went to speak to her about it but she became tongue tied because she did not know what to say.[39]Anne Drever did not consider the e-mail to be confidential because it addressed team clinical procedures. She considered that it was necessary and appropriate, as STL, to raise this matter at a team meeting because in her view all of the team required to be involved in finding a workable solution. She also understood that the claimant was raising this as a legal issue. Accordingly, Anne Drever spoke to her own medical defence union, who advised that the section with the consultant field was contact details, and it did not require to be a specific name in that field.[40]The first opportunity for Anne Drever to address this issue was two days later on 18 February 2021 at the next weekly medical team meeting (MDT) and at which decisions were made regarding prescriptions for patients. At that time all such meetings took place by video on teams.[41]At that meeting Anne Drever understood that an agreement had been reached that the matter should be further clarified by seeking formal legal advice from the pharmacy advisers at local and national level as the prescription template is supplied nationally. Accordingly this matter was raised by the lead pharmacist Nicola Cameron at the meeting of the National Homecare Group which took place on 3 March 2021.[42]The minutes of that meeting (1385) record that “NHS D&G asked about validity of prescriptions signed by a different prescriber to that named in the ‘hospital contact details box’. The group agreed that if a prescriber is signing and printing their name, the prescription is legally valid”.[43]Nicola Cameron reported back by e-mail that same day, 3 March 2021, as follows (205): “all present agreed that the details at the top – are contact details – the person signing at the bottom takes clinical responsibility for the prescription. It does not therefore matter if they do not match. My thoughts are – we either continue as we are with the clinical lead name or going forward all new patients could have the name of the initiating consultant/ specialist there. I don’t think we need to change it each time however.”[44]At the next MDT meeting which took place on 4 March 2021 it was proposed by Petra Cannon that the name of the secretaries should be put in the consultant field (230). Members of the team, including Anne Drever, supported this. The claimant opposed it. That suggestion was not acted upon, although the alternative proposal that “department of rheumatology” should be put on all prescriptions was accepted. The claimant did not voice any objections at that meeting. At this point he believed that Petra Cannon was dictating to the team how he as a consultant should do his job, and that she had managed to convince others to support her, and not to follow his request.[45]On 5 March 2021, Anne Drever sent an e-mail to all members of the team stating “further to our team discussion yesterday, we would be grateful if the contact address could read ‘department of rheumatology’ removing the need for any named person” (204).[46]On 10 March 2021 Nicola Cameron replied, “Yes, that's fine for "dept of rheumatology". That will need changed however on the Rx as and when they are written from the team for each repeat” (204).[47]In the period between 18 February 2021 and 10 June 2021, although many prescriptions had “department of rheumatology” or an abbreviated version of that in the consultant field, the claimant continued to receive some prescriptions with Dr A Russell in the consultant field. Initially he refused to sign them but there were so many that he decided that he should revert to signing them. He continued to receive some prescriptions with the consultant field left blank.[48]On 10 June 2021, the claimant raised the matter again at an MDT meeting, which took place by teams. The claimant felt he had no choice because he was becoming frustrated. The discussion became heated because the claimant suggested that Petra Cannon was purposefully not putting his name in the consultant section, despite the direction to put “department of rheumatology”. The claimant became angry and voiced his frustrations. He said to Petra Cannon, “Is it just me or is it people like me?”.[49]Although the meeting was on video, other participants were aware that the claimant had become angry with Petra Cannon in particular. Petra Cannon was very upset. Other attendees stated that they were shocked at his behaviour. After that meeting Anne Drever apologised to the claimant saying that she did not believe that she had handled his concerns well.[50]Following this meeting the claimant met with his operational line manager, Peter Girvan, when the events at the meeting of 10 June 2021 were discussed.[51]The claimant set out a summary of the discussion in an e-mail dated 16 June 2021 (210). The claimant raised concerns about the way that he was treated by Petra Cannon giving examples as requested, including his concerns about the prescription issue. He said that although he had found the ‘department of rheumatology’ option acceptable because another consultant’s name was not on his prescriptions, he did not consider it ideal and believed it was because no-one “would say anything to Petra who is pushing this” (212).[52]An agreement was reached that there would be a mediated meeting on 18 June 2021 between the claimant and Petra Cannon (210). On 17 June 2021, the claimant e-mailed Peter Girvan to ask if he could take a non-legal colleague or union rep to the meeting (210). Although he did not reply to that e-mail, Peter Girvan spoke to the claimant and advised that was not appropriate as it was an informal mediated meeting.[53]That meeting took place on 18 June 2021 and was attended by the claimant, Peter Girvan, Petra Cannon and her line manager Suzanne White. Mairi Johnstone, HR assistant, attended by teams. At the point of introductions, Suzanne White asked the claimant if he was a permanent member of staff. The claimant produced a document which included a number of concerns he had with Petra Cannon over a long period of time, and that his understanding was that the matter did not relate to a single issue. Peter Girvan decided that the resolution intended would not be achieved at an informal meeting so the meeting was abandoned.[54]On 2 July 2021, after that meeting, the claimant e-mailed Carole Morton and Peter Girvan, copying his BMA representative, Dr Ranjit Thomas as follows: “Susan started the discussion by asking me to confirm that I am not a permanent member of staff. This is completely irrelevant to the meeting and I find this undisguised attempt to intimidate me quite disappointing. This has made me lose confidence in her role in the mediation process” (209). The claimant stated that he was committed to an amicable resolution of the issues, but requested to attend further meetings with a trusted colleague or BMA representative.[55]From July to November 2021, efforts were made to facilitate mediation between the claimant and Petra Cannon. These proved unsuccessful ultimately because Petra Cannon decided that she did not wish to participate.[56]On 1 September 2021, Andrew Russell moved from the clinical director post to take up the post of associate medical director.[57]On 15 December 2021, on the advice of Peter Girvan, the claimant submitted a formal complaint about the conduct of Petra Cannon (228, 229). This complaint was headed “acts of bullying and harassment towards me”. He set out a large number of concerns, including concerns about the prescription issue. This complaint was dealt with under the bullying and harassment policy.[58]Towards the end of 2021, the claimant successfully applied for the post of rheumatology consultant with NHS Fife. The claimant decided not to take up that post because he believed that his concerns would be addressed through his complaint.[59]On 7 January 2022, the claimant’s complaint was acknowledged. Although this was outwith the seven days required under the policy, the HR manager was on paternity and annual leave (237).[60]On 14 February 2022, Peter Girvan wrote to the claimant confirming his decision to investigate the claimant’s complaints under the NHS Scotland Workforce Policies Investigation Process.[61]On 5 May 2022, the formal complaint investigation commenced, with the claimant being invited to attend an initial meeting to discuss the allegations (256).[62]On 12 May 2022, the claimant was interviewed by Sera Prichard, investigations and policy manager, who was assisted by Mairi Johnstone, HR officer. He was accompanied by his BMA representative, Ranjit Thomas. During that interview the claimant expressed concerns about “unconscious bias”.[63]On 29 June 2022, the claimant returned an amended transcript from the interview, following a request to make changes in red (265). At that time, he also attached a copy of the employment offer for the post of consultant rheumatologist at NHS Fife “as the evidence of the impact of the various actions of Petra Cannon on me. The only reason I strongly considered resigning my appointment here is because I believe I am being bullied by Petra Cannon by various means available to her. This experience led me to apply for a job with another hospital, attend the interview and almost leave my current job”.[64]In September 2022, the claimant was engaged on a permanent contract and received an automated e-mail referring him to his updated terms and conditions. The outpatient issue – 2022[65]On 29 March 2022, the claimant e-mailed Tracey Howieson, the line manager of a healthcare support worker (Michelle), and Arlene Horsburgh, another charge nurse in the outpatient department, to complain about the conduct of the healthcare support worker. Tracey Howieson replied immediately, confirming she would speak to her on her return from leave.[66]On 8 April 2022, the claimant wrote to them again to advise of a further incident of concern, during a consultation with a junior (resident) doctor in attendance, when the health care support worker stormed into his clinic, and warned him never to go and pick the next patient again without informing her first. Tracy Howieson advised she would make sure she was made aware of the complaint and was not assigned to his clinic (244/245).[67]On 11 April 2022, the claimant e-mailed them to advise that due to the seriousness of these issues he had decided to take it to senior management and HR (249). In that e-mail, he stated that, “This is a situation where a HCSW has taken aggressive behaviour right into the middle of a consultant's clinical session with a patient, has expressed inappropriate opinions on clinical methods when brought in as a chaperone in a way that could instigate patients against the service and has repeatedly said inappropriate things openly. I think there is a good chance that this will happen or is already happening to other doctors unless something is done about it immediately”.[68]Tracy Howieson responded immediately to advise that she would speak to the healthcare worker as soon as she started her shift (249). The claimant forwarded these e-mails to Peter Girvan.[69]On 12 April 2022, Peter Girvan responded, “I spoke with Lesley White, the nurse manager responsible for OPD after our call yesterday. Tracy Howieson has also escalated the issue, we both agreed that the behaviour you outlined is inappropriate and will be managed within the department with oversight from Lesley” (248). Ethnic minorities staff network issue[70]On 7 April 2022, the claimant addressed a medical division meeting during which he promoted the work of the Ethnic Minorities Staff Network (EMSN), which he chaired. Dr Nadeeka Rathnamalala also attended that meeting and indicated that she hoped that the network was not about segregation.[71]On 21 April 2022, during an organised teaching event attended by both the claimant and Nadeeka Rathnamalala, following a question asked by an attendee about racism from patients and how to deal with that, Nadeeka Rathnamalala said that she had not come across discrimination from staff, although she had from patients. She was recorded as saying, “you can’t really blame them for that because you know…it’s prevalent in all cultures across the world…..racism and discrimination is there to different extents everywhere you go and you don’t get a fair society anywhere I suppose….it’s a double whammy when you’re a female and of a different skin colour”.[72]In late June, while on a telephone call with Nadeeka Rathnamalala, the claimant recalls that she stated that the idea of the network was “stupid”, notwithstanding it was a Scottish Government initiative, and that she expressed concern about it promoting segregation.[73]On 29 June 2022, the claimant followed up this conversation explaining the network aims and stating that “the idea of the EMSN is to support folks and to promote inclusion and not segregation by any means” (376).[74]On 15 July 2022, the Supporting Ethnic Minority Staff and Communities Report was published (274). This reported that “in light of the inequalities experienced by ethnic minority communities during the Covid-19 Pandemic, the respondent undertook a survey to gather research and information to identify possible bias or discrimination towards all but especially ethnic minority staff. Although the sample size was small, and while the vast majority of all groups (84%) indicated that they had not experienced discrimination, the results showed that those who had experienced discrimination were all from ethnic minority communities” (295) and that “The data around experience of discrimination, harassment, bullying and abuse indicates that ethnic minority respondents are more likely to agree that they have experienced this from colleagues and managers than white British respondents” (306). The report gave a number of examples and made a number of recommendations.[75]On 18 July 2022, the claimant wrote to Nadeeka Rathnamalala to ask if she would be willing to take on the role of members’ experience officer for the EMSN (322). Despite reservations due to other time commitments, Nadeeka Rathnamalala reluctantly agreed.[76]On 27 July 2022, Nadeeka Rathnamalala attended a meeting of the EMSN. At that meeting, she queried whether it was necessary to use the term “international nurses, or international medical graduates as it by default marks them out as different”; and whether there was a real need for active bystander training. Members responded referencing examples from the report. She also queried the value of the network focussing just on members who identify as minority ethnic, expressing a view that this was not congruent with her own inclusive philosophy as she is opposed to segregation (324).[77]On 2 August 2022, the claimant e-mailed Nadeeka Rathnamalala (327) to highlight his concerns about her comments at the meeting, as well as comments made at the medical division meeting, the SAS talk, and the telephone call in early July. He stated that, “in the complete absence of any provocation, when you tell a person the committee he is chairing is stupid, some people might see that as a form of bullying. However as a consultant colleague of yours who is completely unfettered by this action be assured that I am not intimidated one bit”, stating that he would “respect your self-declared wish to no longer be associated with the network” (328).[78]On 3 August 2022, the claimant sought advice from board members in their capacity as sponsor and champion of the EMSN “regarding the conduct of one of the hospital consultants who has been going to unusual lengths to discourage the existence of the network”. A meeting was suggested to discuss (329).[79]On 8 August 2022, Nadeeka Rathnamalala wrote to the claimant apologising for offending him and suggesting they agree to disagree, adding “however I am slightly concerned about the accusation of “bullying” which if you think amounts to such aggression you might want to escalate to Sian/Andrew” (334).[80]On 22 August 2022, the claimant e-mailed Peter Girvan and Caroline Cooksey, “on behalf of the D and G HSCP EMSN” to report a series of issues regarding the actions of Nadeeka Rathnamalala. He stated that, “as a network and indeed as any responsible employee of the board we believe it is our duty to report and expect the organisation to act on the actions of a senior member of staff and clinical lead for Education, Training and Rota who participates regularly in staff recruitment, trainee supervision and assessment…management should be fully informed and be expected to fully investigate and take necessary action” (342).[81]On 22 August 2022, the claimant declined Peter Girvan’s offer of support from HR because he was “not personally offended by the actions of Nadeeka” (341).[82]On 8 September 2022, a formal preliminary enquiry was launched into the allegations made against Nadeeka Rathnamalala, when she met with Dr Nicholas Walker. Nicholas Walker had been appointed in his role as associate medical director to review initial concerns arising from the EMSN submission. He advised that an information gathering process was to be conducted (345).[83]On 20 September 2022, following a request, the claimant advised that as neither he nor the network held any grievance towards Dr Rathnamalala and believing that the matter should be between management and Dr Rathnamalala, declined consent for the e-mail to HR and Peter Girvan to be passed on to her (371).[84]On 19 December 2022, a report was issued following the investigation stage which concluded that there was insufficient evidence to substantiate the allegations (348). That preliminary enquiry summary was sent to the decision maker Nicholas Walker.[85]On 20 December 2022, Nicholas Walker met with Nadeeka Rathnamalala to advise her that following the preliminary enquiry he had decided that there was insufficient evidence and no substance to any of the allegations and no further action was necessary (617).[86]Neither the claimant nor any member of the EMSN was made aware of this preliminary enquiry. Outcome of claimant’s complaint under the bullying and harassment policy[87]A report following an investigation into allegations made by the claimant against Petra Cannon was issued on 19 October 2022 (377). The claimant’s complaint was not upheld. The report contained 24 appendices with supporting information, relevant policies and transcripts of witness statements from the claimant, Andrew Wilson, Anne Drever, Andrew Russell, Nicola Cameron, Caron Cowen, Iseabail Graham, Lucy Moran, Petra Cannon and Micheal Shrimpton. Three example prescriptions (with dates and other information redacted) were included as appendices, two being photocopied prescriptions with yellow sticky notes attached by the claimant referencing his concern (534, 535).[88]The findings, in regard in particular to the allegation that Petra Cannon undermined the claimant “by insisting on putting the name of another consultant on biologic prescriptions”, were that “the process of putting the lead consultant’s name on all prescriptions was custom and practice within the Rheumatology Team for a significant timeframe prior to and following Dr Akintayo joining the team”. While the conclusion otherwise was that there was no corroborative evidence to support the other allegations made by the claimant against Petra Cannon, learning outcomes were identified, specifically she required to complete a learning module on bullying and harassment; confirm understanding of the respect code of practice; and to refresh and complete mandatory training on equality and diversity (399).[89]By letter dated 2 December 2022 the claimant was advised of the outcome of his complaint against Petra Cannon, that is that none of the allegations were upheld. He was advised of a number of “early resolution recommendations” made as an output from the investigation, but was not told about the detail of them for confidentiality reasons (589).[90]The claimant was advised that if he was dissatisfied with the investigation he could request a review of the process followed but not the outcome of the investigation. He was advised that he was entitled to a redacted copy of the investigation report as per the Once for Scotland Information Sharing protocol. The report received by the claimant was extensively redacted, and did not include any of the appendices (581).[91]On 15 December 2022, the claimant requested a review (623); making additional points in an e-mail dated 28 December 2022 (618).[92]By letter dated 26 April 2023, the claimant was advised of the outcome of his request for a review. That letter confirmed that the remit of the review was limited to consideration of the process followed, and noted that many of the claimant’s concerns lay outwith the scope of the review process. Although it was acknowledged that expected timescales were missed, the conclusion was that the level of investigation was thorough and the report was comprehensive (707). Grand Round/Education Centre issue[93]In or around September 2022, the claimant took over the co-ordination of the grand round, which is a weekly lecture for the medical directorate which took place at the education centre on Wednesdays at lunchtime.[94]Until that time, support for the promotion and execution of the grand round lectures was given by the education centre in the form of providing a venue, assistance with promotional e-mails, catering and attendance and feedback sheets, as well as technical support.[95]The claimant believed that he had reached an agreement with Anne-Marie Coxon, the manager of the education centre, her that the education centre would promote the lectures by sending out e-mails on Monday and Wednesday.[96]On or around 23 November 2022, relevant e-mail announcements remained in the outbox in error so were not sent out until shortly prior to the lecture.[97]On 28 November 2022, the claimant sent an e-mail to the education centre generic e-mail address asking for announcements to go out that day and on Wednesday relating to the lecture due to take place on 30 November 2022 (697).[98]On 29 November 2022, the claimant e-mailed Anne-Marie Coxon advising that the announcement had not been sent out as agreed, and that he hoped she had received the e-mail (607). Anne-Marie Coxon responded that day apologising for the inconvenience and explaining that the education centre was very short staffed and that “we may not be able to send emails out when people would like as you will understand that other things may need to take priority. We will get the e-mails out as soon as we can but I am unable to guarantee times and sending a couple of times a week may not be possible” (608).[99]On 29 November 2022 at 10.07 am, the claimant sent an e-mail to the generic email address dg.educationcentre (which would therefore have been received by all of the staff under Anne-Marie Coxon’s management) in the following terms (605): “Hi Anne-Marie, Thank you for your reply. As you know, I had sent the notification to you through the generic Education Centre email as you have demanded on multiple occasions. The reason you stated is that you could be on annual leave and sending it only to the generic box would ensure that it gets actioned. Therefore I believe you would understand my disappointment when the announcement was not sent. Similarly, I had to send you another reminder email at the very last minute last Wednesday when the announcement (including the link to join the meeting) had not been sent until a few minutes before the start of the meeting. In the same vein, I have had to re-forward communications I had earlier sent to you in the past because you said you never got the email. I have also had to come physically to your office to discuss with you when your telephone was not answered when I rang you repeatedly. At that point, we managed to discuss the arrangements and following your advice, we agreed that announcements will be sent out twice every week. Monday afternoon and Wednesday morning. Surprisingly you seem to be walking that back by saying you ‘may not be able to send emails out when people would like’ and you are ‘unable to guarantee times and sending a couple of times a week may not be possible’. I am concerned as it feels as if I am not enjoying the most cooperation from you and you often come across to me as microaggressive. I have only taken over the coordination of the grand round for two months but I have not had the best experience working with you Anne-Marie and I do not know why. I hope you would look into these and help make the grand round coordination a smoother process going forward”.[100]On 29 November 2022 at 12.59 pm, Anne-Marie Coxon emailed in reply, copying in a number of senior managers, including the director of medical education, Peter Armstrong, in the following terms (604): “Hi Richard, I am very unhappy with the tone of your email and think it is very unfair. I think you will find that very few clinicians in the hospital regard me in the manner you have described below, generally finding me extremely helpful and always willing to go that extra mile”[101]She went on to explain that the education centre was short staffed, why she had asked e-mails to be sent to the generic inbox, and that she always returned calls she missed when she was otherwise busy.[102]She continued, “I completely accept that last week we did not get the email out in a timely manner - it had been written and I thought sent, but it was in draft items. I did apologise to you for this when I saw you in the department on Wednesday. The lunch time meeting is Medicine Departmental Teaching. We do not offer the same level of support to other departmental teaching, but have always appreciated that your topics are often of interest to the wider medical community and therefore we have always tried to help. I think moving forward it would be best if Medicine take over the organisation and publicity surrounding this meeting as I am unable to offer you the service you need. I assume you will also be taking over the catering - again this is not something that we support any other department with so probably best to ensure we treat everyone the same. If you are unhappy with the service the education centre or indeed myself are providing, then can I ask that you take this up with the Directors of Medical Education, Pete Armstrong, Fiona Graham and Chris Isles. I am also copying in Dr Rathnamalala as Education Lead for Medicine so she is aware that we are no longer supporting the Medicine meetings. I am truly sorry that this is the situation we find ourselves in, but given your requirements and our inability to meet these I think it would be better if your secretary or a member of the wider A&D admin team support you going forwards”.[103]On 29 November 2022 at 2.03 pm, Peter Armstrong replied to the e-mail and to the claimant, in the following terms (603): “Richard - I am sorry that you are unhappy with this situation. Reading the email trail however, I think you may have unrealistic expectations of what the Education Centre are able to offer, and I think your email to Anne-Marie is unfair, harsh and overly critical. Anne Marie is an extremely supportive, helpful and proactive colleague who frequently goes the extra mile for clinicians, trainees and students, and always aims to provide the highest level of support and educational service. This is not just my opinion but also recognised by colleagues throughout the organisation. It’s a shame, however moving forward and given your dissatisfaction, I would suggest that you undertake or organise for a member of the acute and diagnostics admin team or perhaps a medical secretary to send out emails relating to grand rounds. The Education Centre has also organised and provided catering for grand rounds. As Anne Marie has highlighted, this is not something provided to any other team within the organisation, and I have asked that this stop. Perhaps whoever takes on the communications can take on the organisation and funding of catering. If you wish to discuss further, I am available at this email or on ext xxxx”.[104]On 1 December 2022, the claimant responded, copying in additional managers, including Ken Donaldson, expressing concern about withdrawal of services in response to feedback rather than looking at the concern raised (602).[105]On 1 December 2022 at 10.36, Peter Armstrong replied to that e-mail referencing the fact that “being unfamiliar with the term microaggression, I have googled it, and [I am] very surprise that you consider Anne-Marie to be microaggressive”.[106]He continued (598): “I highlighted that the education centre has provided Grand Round catering at no cost to the Medical Division, and this contribution was unique and not provided to other teams. Whilst not explained in my email, I have only recently become aware of the extent to which the Education Centre was regularly absorbing this cost, and given the current financial pressures within the health service, morally this is not something that I can support moving forward, nor can I support providing lunch free of charge to clinicians when we have medical and nonmedical colleagues within NHS D&G facing a cost of living crisis”. He suggested a meeting to discuss further to find some form of compromise/resolution.[107]On 1 December 2022, Ken Donaldson responded suggesting that the claimant and Peter Armstrong meet in person. Peter Armstrong replied suggesting a mediated face to face meeting involving Anne-Marie Coxon (598). Anne-Marie Coxon responded on 1 December 2024 stating that she would be happy to meet in person (597).[108]On 2 December 2022, the claimant e-mailed Ken Donaldson advising that he did not consider there would be any value in having a face to face meeting with Peter Armstrong for various reasons including the fact that he had unilaterally withdrawn services in a manner which he believed was clearly vindictive (596). Ken Donaldson then e-mailed the claimant only asking him to stop emailing around this subject and asking to meet to discuss (596).[109]On 13 December 2022, the claimant met with Sian Findlay, clinical director, and Peter Girvan to discuss this matter. It was agreed at this meeting that the administrative tasks associated with the grand round would be taken over by the acute and diagnostics admin team and that Peter Girvan would set up a meeting with the claimant and Peter Armstrong and Anne-Marie Coxon.[110]In January 2023, in order to facilitate the promotion of the grand round, the acute and diagnostics admin team made a request for the all users e-mail address (629). They were advised that the all user e-mails group address was restricted to operational matters, but that the announcement about the grand round would feature prominently in the core briefing which goes out to all staff (628).[111]By e-mail dated 27 February 2023, the claimant raised concerns with Peter Girvan and Andrew Russell about the attendance levels at the grand round sessions; noting that he had not heard further from Peter Armstrong about meeting up to discuss the issue of the withdrawal of the education centre support (674).[112]On 28 February 2023, Peter Girvan e-mailed in response apologising for not arranging that meeting, but the claimant said that since he was not interested in having further discussions with Ms Coxon, since he took no offence regarding her actions and assumed the decision was made by Peter Armstrong. He said he was happy to have a separate meeting with her if she wanted one but not a joint one (673).[113]On 17 March 2023, the claimant expressed concern to Peter Girvan and Andrew Russell in an e-mail about the fact that he “had not seen anything done to reverse Pete Armstrong’s decision to withdraw the support of the Education Centre because I raised a concern” (671).[114]On 28 March 2023, Peter Girvan replied to the claimant stating that it was important that his relationship with the Education Centre was repaired, and that moving administration to acute and diagnostics division was correct because it provided oversight and control within the division and gave them the opportunity to fix the issues with the e-mail distribution list. He said that it was reasonable for Anne Marie Coxon to have escalated the issue to senior management and that he should be reassured that the motivation for making changes was not a punishment or rebuke for raising concerns. He said that since catering is not provided to other departments they were justified in halting it. He expressed concern about the manner, tone and impact of his feedback and suggested that he should reflect on his approach to resolving his concerns and give feedback in a more constructive manner (670).[115]On 14 July 2023, the claimant was advised of regular teaching lectures for junior/middle grade doctors to take place on Monday afternoons (764). Grievance on systemic racism[116]In May 2023, the claimant raised an informal grievance on systemic racism including in particular concerns about the sustained practice in regard to the prescription issue.[117]On 21 July 2023, an early resolution meeting to discuss the claimant’s concerns took place between Nicole Hamlet, deputy chief operating officer and Gemma Zutic, senior workforce business partner, the claimant and his BMA rep Ranjit Thomas. This meeting was not successful in resolving the grievance (1101).[118]On 10 August 2023, the claimant submitted the formal grievance to Pamela Jamieson, director of HR (765). In his grievance form the claimant stated that he believed that he had been the victim of systemic racism. This related to the prescription issue in particular, and how it was handled and investigated. It included references to treatment by Petra Cannon, Andrew Russell and Anne Drever, Nicola Cameron, Pete Girvan, Suzanne White, and a number of HR colleagues.[119]In this grievance the claimant expressed concern about the fact that, although he had complained about the way that Petra Cannon had treated him differently from other colleagues, management and HR took the matter through the bullying and harassment policy. He said that he had been advised that this is not an acceptable policy for dealing with complaints that include discrimination, although he was led to believe that this case was properly categorised as a potential bullying and harassment case rather than discrimination. He complained that the result was that his complaint that Petra Cannon had treated him differently than others was ignored.[120]The claimant expressed concern about the fact that the investigation team in the bullying and harassment complaint chose not to request to see prescriptions which were at the crux of his complaint. He expressed concern that the investigation had admitted that many aspects of his complaint were outwith the scope of a bullying and harassment investigation.[121]The claimant stated that he sought the following outcomes (768): 1 A formal apology from the leadership of the organisation recognising how [he had] been treated in a racially discriminatory manner and measures put in place to prevent the same from happening to others; 2 Since harassment and discrimination are not the same thing, the NHS Scotland Bullying and Harassment Policy not to be used to investigate concerns that include discrimination going forward; 3 Clarity on the organisation’s culture improvement work and how it recognises the problem of discrimination and seeks to address it.[122]Mark Kelly, interim nurse director, was appointed chair of the grievance panel.[123]On 6 October 2023, the claimant met with Pamela Jamieson and Mark Kelly regarding his grievance (793). He intimated a change of support to Dr Paul Ames and not having heard further followed up with an e-mail dated 21 October 2023 (793).[124]Dr Ritesh Malik was originally appointed to investigate the grievance but he withdrew from the role (841). Dr Louise Cumbley was then appointed, assisted by Anne-Marie Hope from HR and on 18 December 2023 invited the claimant to an initial investigation meeting (863).[125]On 14 February 2024, an investigatory interview, conducted by Louise Cumbley assisted by Anne Marie Hope, was held with the claimant in connection with this grievance (946). The claimant was accompanied by Paul Ames. Grand Round further issues (late 2023/2024)[126]On 14 August 2023, the claimant emailed Andrew Russell to say that he wanted to improve the grand round to encourage participation from as many departments as possible (772).[127]On 15 August 2023, Andrew Russell responded stating that he was very interested and that Peter Armstrong as DME had also been considering that. He proposed a meeting with them both to work that up and look at education centre involvement and support (772).[128]On 22 August 2023, the claimant met with Andew Russell and Peter Armstrong when a hospital wide grand round was discussed. On 17 October 2023, the claimant and Pete Armstrong had a further meeting to discuss the initiative.[129]On 18 October 2023, an associate specialist doctor raised a concern with the claimant, Anne-Marie Coxon and Nadeeka Rathnamalala that juniors/middle graders were not receiving notification of the grand round meetings (787). AnneMarie Coxon offered to assist. The claimant asked Andrew Russell for his help with reaching junior doctors and others who said that they had not received the e-mails. He said he would look into it (785).[130]On 8 November 2023, the claimant e-mailed Pamela Jamieson, the then chair and the then chief executive (800), setting out his concerns about the handling of the grand round issue including his interactions with Anne-Marie Coxon and Peter Armstrong. He requested that they reverse the actions of Peter Armstrong of withdrawing the resources and support for the grand round, and to stop Peter Armstrong and others from further efforts to frustrate the efforts of organising the grand rounds or undermining it by setting up another grand round.[131]He continued, “I am not in much doubt that aiding and abetting the activities of Pete Amstrong, who has made it clear that the reason he is taking all these actions is because I raised a concern of microaggression, is racism. Please note that when Mark Crowther (who is a white British person and not the chair of EMSN) oversaw the Grand Round, Attendance sheet was provided; Feedback was collected; Emails were sent out; Feeding was provided; Juniors were not pulled out and a separate meeting created for them; Email was not restricted to a smaller part of the workforce; And another Grand Round was not created behind his back” (809).[132]On 15 November 2023, the claimant asked Peter Girvan for his assistance in reaching junior doctors to advertise the grand round, raising concerns about the fact that many staff members are not receiving the promotional e-mails; suggesting that only the all users e-mail will capture the target audience; Peter Girvan replies saying he would have a discussion with the directors but unfortunately the ownership of the all users email system did not sit with their directorate (624).[133]On 20 November 2023, in response to the claimant’s e-mail of 8 November 2023, the chair advised that it was not appropriate for him or the chief executive to be involved in a case which at a later date may need to be escalated but he arranged for the claimant to meet with Julie White, the chief operating officer and Pamela Jamieson (829).[134]On 30 November 2023, a further meeting took place between the claimant, Andrew Russell and Peter Armstrong to discuss the hospital-wide grand round initiative. There was a misunderstanding about what was agreed at the meetings. The claimant understood that one hospital wide grand round would take place and that the education centre would take over its administration. Peter Armstrong understood that mortality and morbidity/significant adverse events meetings open to all staff would be held every two months on Wednesday lunchtimes (at the time of the medical department grand round) and the administrative support for those meetings would be provided by the education centre; and that otherwise the department of medicine grand rounds would continue to be organised by the acute and diagnostics administration team.[135]On 17 January 2024, the claimant e-mailed Peter Girvan stating that it was his understanding from recent meetings that the grand round was to be made hospital wide but a number of groups had been taken off the distribution lists including all non-doctor staff, all non-consultant and non-SAS doctors, and that Michelle Macdougall had advised him that she had been directed to restrict the distribution of e-mails. Peter Girvan replied advising that he would need to discuss the matter with Ken Donaldson. On 25 January 2024, the claimant asked Andrew Russell to look into it, and he sent a reminder on 5 March 2024.[136]On 22 January 2024 the claimant met with Julie White and Pamela Jamieson. He was accompanied by Paul Ames. A brief note was provided of the points discussed at the meeting (875). At that meeting Julie White confirmed that there should not have been a unilateral decision to withdraw support for the grand round without a discussion with the claimant. In terms of actions following that meeting, it was noted that there needed to be clarity about what had happened before and what was happening now with regard to the grand round, that there should be a meeting with Ken Donaldson and members of the acute management team (878).[137]On 30 January 2024, Julie White confirmed that due to the need to make unprecedented levels of savings her expectation was that it was unlikely that she would be able to reverse the decision not to provide food at the grand round events (894).[138]On 2 February 2024, the claimant wrote to Anne-Marie Coxon stating, “I presume Pete may have advised you regarding the return of the grand round support provided by the education centre”, asking her to send out an advert for the next week, advising that, “the grand round is now becoming hospital wide, so we need to reach everyone, including the GPs” (651).[139]On 2 February 2024, Peter Armstrong replied advising that it was his understanding that the education centre would only support the hospital wide grand rounds not the medical department grand rounds, suggesting a meeting to iron out misunderstandings (651).[140]On 5 February 2024 the claimant set out his understanding but queried why he was involved in the planning if a separate ground round was the plan and he was not involved in this new and additional grand round. He suggested a meeting on teams so that it could be recorded. Peter Armstrong said he preferred face to face, and the claimant asked for it to be recorded given previous misunderstandings (651).[141]On 6 February 2024, Andrew Russell asked for that email trail to be paused.[142]On 10 April 2024, the claimant submitted a formal grievance regarding the education centre issue (999 and 1005). That day he notified ACAS of his intention to present a claim to the employment tribunal (60). Outpatient issues – 2024[143]The claimant had raised concerns about instances when clinic support staff did not note on the computer system that patients had arrived and were awaiting their appointment, which would have alerted him that they were waiting to be seen.[144]On 11 January 2024, Nurse Brenda Faulds came to the claimant’s consulting room and advised that a patient, whom she had not checked in, was waiting. Believing that the patient had not arrived because the patient was not checked in on the computer system, the claimant had telephoned his next patient. Explaining the situation, Brenda Faulds said that he should have come out to the lobby and “stuck his neck out” and called the patient himself. The claimant found this demeaning and very hostile.[145]On 11 January 2024, the claimant reported the matter to the nurse in charge, Linda Shaw, stating that this was not the first time that he had found Brenda Fauld’s manner of talking “unacceptable, condescending and patronising” (889). Linda Shaw replied that day apologising for falling short but suggesting that it was related to shortage of staff and moving from their normal working area. She said that she had spoken to Brenda Faulds and that she would be happy to discuss the matter with him (888).[146]On 23 January 2024, the claimant sent an e-mail to Andrew Russell, Lucy Moran and Anne Drever headed “clinic”, seeking a discussion about his belief that he had been and continued to be the target of repeated racially motivated hostilities and the fact that he was not getting support. He noted that Anne Drever agreed that the nurses’ behaviour was wrong and should not be defended but that she prefers to avoid conflict as much as possible. He asked to have a conversation about his concerns that colleagues remain neutral when he is facing experiences of racism, and about the importance of the active bystander role (887).[147]On 24 January 2024, Anne Drever responded suggesting a further discussion with Nicole Hamlet and HR involved, and the claimant agreed (885).[148]On 5 February 2024, the claimant met with Nicole Hamlet, Gemma Zutic and Anne Drever to discuss the issue of failure to check in patients on arrival. The claimant was supported by Dr Mignon Gerrits (916). During the meeting, the claimant described feeling unsafe within the workplace and asked directly for support. It was agreed that an urgent occupational health referral would be made.[149]On 7 February 2024, Nicole Hamlet e-mailed the claimant a brief summary of the meeting and highlighting next steps (916).[150]On 13 February 2024, the claimant responded with a lengthy e-mail including ten examples of incidents which had caused him concern and advising that he continues to be a victim of racial discrimination. He concluded by saying that he believed that management needed to acknowledge racism as a cultural problem in the organisation and to “take a clear and open stand on it and adopt a zero tolerance policy against it” (916).[151]Nicole Hamlet and Gemma Zutic met with Linda Shaw and Brenda Faulds to discuss the incident which had taken place on 11 January 2024.[152]On 21 February 2024, the claimant attended a risk assessment meeting with Nicole Hamlet and Gemma Zutic as assessors (982). It is noted in the risk assessment report that the claimant was “Happy to be assigned a point of contact if Dr Akintayo feels that he can’t use his professional or line management structure. Currently feels comfortable to escalate concerns to his line manager and beyond if required”.[153]On 28 February 2024, a further meeting took place, reported in a letter to the claimant dated 5 March 2024, attended by Nicole Hamlet, accompanied by Gemma Zutic, the claimant and his companion Mignon Gerrits, when Nicole Hamlet reported her findings relating to the incident on 11 January 2024. She also reported that during the meeting on 28 February 2024 she was of the view that the claimant was demonstrating frustrated behaviours. He confirmed that he was feeling frustrated due to the comments made by Brenda Faulds. Nicole Hamlet took the opportunity to remind him to be mindful of his behaviours and how his behaviours may be perceived by others.[154]On 7 March 2024, Nicole Hamlet offered Dr Heather Currie as “confidential point of contact/professional line management”. The claimant did not require the introduction offered because the claimant said he knew Heather Currie “fairly well”.[155]On 11 March 2024, the claimant responded to the note of the meeting with some clarifications. That included concerns about the reference in the report of the meeting that the claimant should be mindful of his behaviour. Although the claimant agreed he was frustrated because he kept raising concerns and nothing changed, he did not believe that he had demonstrated frustration in the meeting, believing that he had remained calm, which was the view of his companion, Mignon Gerrit (986).[156]On 12 June 2024, Heather Currie e-mailed the claimant looking for assistance in regard to one of his patients who is a relative of hers (1066).[157]On 5 August 2024, the claimant e-mailed Heather Currie requesting professional leave (believing her to be his line manager) to attend a National Ethnic Minority Forum meeting (1485).[158]On 7 August 2024, Heather Currie replied but did not answer the question.[159]On 12 August 2024, the claimant spoke on the telephone to Heather Currie who explained that she was not his line manager but had been asked to provide an informal support role.[160]On 13 August 2024, the claimant wrote to HR for clarification regarding why he was being provided with an informal support role, when he understood that Heather Currie was to be his line manager and that he was no longer to contact Peter Girvan or Andrew Russell (1515).[161]On 20 August 2024, the claimant was advised by Gemma Zutic that Heather Currie had been identified as a professional point of contact should that be needed following the risk assessment (1514).[162]On 20 August 2024 the claimant wrote explaining his understanding of what was agreed, that is that he was not to contact Andrew Russell or Peter Girvan, advising that Dawn Smith had written to advise him she was his line manager, which he said was different from informal point of contact (1513).[163]On 21 August 2024, Gemma Zutic apologised to the claimant for any confusion that had been caused confirming that Dr Ken Donaldson medical director would now be his professional line manager and Dawn Smith would remain as his direct line manager, with any HR concerns being sent to Pamela Jamieson. She also confirmed that Heather Currie would no longer be a confidential point of contact/professional line manager or provide an informal supportive role (1512).[164]On 29 August 2024, the claimant queried why he had “specifically and personally” been appointed two line managers when other consultants are not appointed a medical manager as well as professional line management (1511).[165]On 30 August 2024, Gemma Zutic responded advising that he had not “specifically and personally” been assigned two managers; that all medics, some nurses and AHPs have a separate professional and managerial line management and that the professional line management/confidential point of contact/informal supportive role was identified as a control measure as part of the risk assessment (1510).[166]On 2 September 2024, the claimant replied that it was clear that he had been provided with a personal medical manager which he never had before reporting concerns of racism, and that this was not the solution to such concerns. He noted that there was no reference to Andrew Russell and asked for confirmation that she and Nicole Hamlet told him not to contact him. Further, his colleagues advised that they were unaware of having a professional line manager. With regard to the informal support, he was unaware of that control measure and never agreed to it, rather that he was happy to work with Andrew Russell/Peter Girvan, asking for it to be withdrawn or justified (1509).[167]On 17 September 2024, Gemma Zutic responded, advising that all medics have separate professional and managerial line management which is normal practice across the organisation. She did not recall advising him that he was unable to contact Andrew Russell or Peter Girvan, and apologised for the misunderstanding in regards to Heather Currie's role, confirming it was never the intention for her to be his professional line manager, offering a meeting to clarify any misunderstandings (1508). Outcome of grievance on systemic racism - 2024[168]On 10 May 2024, the Cumbley investigation report was submitted. However, on receipt of the report Pamela Jamieson and Mark Kelly identified that in their view some information was missing. Louise Cumbley and Anne Marie Hope were asked to seek further information in regard to points that had not been covered in the report. The claimant was informed (1028).[169]On 17 June 2024, the claimant was advised by Pamela Jamieson that they had received the report following the investigation into his complaint about systemic racism.[170]On 2 September 2024, the claimant received the outcome of the Cumbley investigation into his formal grievance on systemic racism.[171]On 11 September 2024, the claimant attended the grievance hearing chaired by Mark Kelly.[172]Following that hearing, Mark Kelly obtained additional copies of prescriptions from when Micheal McMahon was in post, which included prescriptions where Andrew Russell’s name appeared in the consultant field, as well as considering prescriptions for Anne Drever’s osteoporosis clinic, which he found were prepared by the homecare team and all had her name in the consultant section. Mark Kelly decided that Petra Cannon should be approached again for further explanation about her actions.[173]By e-mail dated 10 October 2024, Pamela Jamieson asked Petra Cannon for a written response to additional questions (SB39). She was advised that, “10 prescriptions considered from June to December 2018. 8 are for Dr McMahon and 2 for Dr Russell…..in all 10 cases the consultant name in the hospital details box and signature at the bottom match, this includes the 2 for Dr Russell who was not clinical lead at the time. Therefore the evidence suggests that prior to Dr Akintayo joining the team, consultant names were changed in the hospital details box as required. We are concerned that there is evidence that Dr Akintayo has been treated differently, and that this could be potentially because of his race…There is evidence that you previously completed the prescriptions for Dr Russell and Dr McMahon in the manner that Dr Akintayo was asking you to do. From the information presented to the panel, you would not put Dr Akintayos name in the Consultant box on the prescription despite him repeatedly asking you to do this”.[174]In a written response dated 21 October 2024, in response to the question “Why did you not add Dr Akintayos name to the consultant box on the prescription as he asked you to” Petra Cannon explained that after the request she believed it appropriate to ask Dr Drever for guidance and that she was trying to ascertain best practice as there was dubiety. She explained that the claimant was a locum and that it was her understanding that previous locums never had their name in place of the head of department. She accepted that this was not consistent with the approach for Dr McMahon and Dr Russell, but said that it was consistent with departmental approach to locum staff, and not putting Dr Akintayos name was “no more than adherence to local process”. After he raised concerns, she said she escalated the matter at the earliest juncture to senior colleagues, asserting that she had not “been complicit to any decision which discriminates against him in this consideration”.[175]In response to a question about her assertion that it would be too much work to put the claimant’s name on prescriptions, Petra Cannon was advised that the evidence presented as part of the investigation does not support this position, and asked for her explanation for treating Dr Akintayo differently and for not doing what he asked. She advised that the position regarding workload should be compared to the stable period prior to the pandemic, when she was pulled to support other services. She stated that, “It would not have taken significant time to include the consultants on a prescription under normal circumstances if adapting practise from the point it was raised. The paperwork automatically had the departmental name on it vs Dr Akintayos. Processing 50-60 prescriptions per week would have a cumulative impact on capacity and under normal operating circumstances would have been straight forward to implement. I understood at the time Dr Akintayos had requested we retrospectively go back and alter prescriptions. My recollection is this seemed….to disproportionately and negatively impact limited capacity to deliver critical patient care where staff capacity was stretched…My approach was not driven by anything other than adherence to process and maximising patient facing time”.[176]In response to the question, “Why were you able to do this for Dr McMahon and Dr Russell?”, Petra Cannon answered that Dr McMahon was the only consultant and therefore head of department, followed by Dr Russell, “as far as I am aware all paperwork had their names included as the Head of Department. As noted above Locums were not recognised in this way in line with departmental SOPs. Dr Akintayos was one of a number of Locums present in the department over the years….Any perception of anything beyond this is process driven, above my station to determine and definitively not designed by me to be discriminatory in nature as seems to have been implied”.[177]On 30 October 2024, the claimant received the outcome of his grievance from Mark Kelly (1732). In the outcome letter, Mark Kelly considered his complaints about the first investigation (under the bullying and harassment policy) and the Cumbley investigation separately. The outcome letter repeated outcomes in relation to each, but included the following.[178]Mark Kelly concluded that the practice had been to put the head of department on biologic prescriptions and the failure to change the name to the claimant’s name was because Petra Cannon regarded this as requiring a change to a local practice; something that would have, in her view, caused too much additional work. He concluded that in taking this stance Petra Cannon failed to understand the importance of the issue to the claimant and demonstrated a lack of professionalism and professional respect in managing the issue. He concluded that the rheumatology team appeared to defer to Petra Cannon’s opinion, and that they appeared to readily accept her views and rationale in relation to changing the name on the prescription without challenge.[179]Mark Kelly found evidence of prescriptions being produced with Dr Andrew Russell’s name on them when Dr Mike McMahon was the head of department, and concluded that prescriptions should have been produced with the claimant’s name on them.[180]Mark Kelly also found evidence to support the claimant’s assertion that his colleagues dismissed the importance of the amendment to his prescriptions, relating to a lack of awareness about why the issue was important to him, and their failure to understand the significance of the issue meant there was a failure to give the weight required that would have perhaps resulted in an earlier and swifter resolution.[181]Mark Kelly noted that when asked what she meant when she said ‘we will put your name there when you are head of department’, Petra Cannon stated that was that the rheumatology team would make that decision. He accepted that her intention was that the team would discuss the issue and decide on matters together. However he noted also that there was no evidence provided anywhere in the report that suggests that Petra Cannon had the support of the rest of the team when she said that to the claimant.[182]He found that, as a team, a decision was made with pharmacy advice to move to a new way of working by putting “department of rheumatology” in the top right box. Mark Kelly was unclear why that was an unsatisfactory solution for the claimant and that he should have requested a meeting with Dr Drever to further discuss his continuing concerns.[183]With regard to his complaints against Andrew Russell and Anne Drever, Mark Kelly did not accept that they were deliberately not dealing with his concerns about the prescription issue or Petra Cannon’s behaviour.[184]With regard to the complaints against Suzanne White, given at the time the claimant was in a locum role, he did not think that asking the question was inappropriate. He found that the management of the information mediation meeting was naive, poor and unclear with learning derived for those hosting the meeting with particular reference to clarity of the purpose as to why this meeting was called. He concluded that the claimant was appropriately advised by Peter Girvan not to bring a trade union representative to the early resolution meeting.[185]He found that the claimant was appropriately signposted to the bullying and harassment policy. He did not accept that there was any intention to restrict his ability to progress his concerns by advising him to use that policy. With regard to the claimant’s complaint that the advice to complain under the bullying and harassment policy resulted in his complaints about being treated differently by Petra Cannon being ignored, Mark Kelly acknowledged the claimant’s concerns about the use of that policy and stated that since that time it was agreed that the grievance policy was to be used for cases of discrimination. The board had supported the claimant to raise concerns about the national policy at a national level, and although no changes were being made, Pamela Jamieson recognised that the level of redaction required by the protocol had the potential for staff not being assured about the investigation process that has been undertaken.[186]In regard to the claimant’s complaint about the scope of the review, Mark Kelly was of the opinion that the review process was conducted as per the scope agreed.[187]Mark Kelly found evidence to support the allegation that there were delays to the process and a delay in providing all of the appropriate information to the investigation team and further delay in arranging a meeting to inform him of the delays, but was satisfied with the rationale offered for these delays, which occurred without any malice or intention.[188]With regard to the claimant’s complaint that the investigation team chose not to request to see prescriptions which were at the crux of his complaint, Mark Kelly accepted that there was a reasonable rationale for only examining three prescriptions. He took the view in hindsight that had more detail been requested a clearer picture may have emerged at that time leading to an earlier resolution. He concluded that responsibility for that does not lie with HR and he did not conclude that the first investigation was thereby flawed.[189]He stated that his findings did not lead him to conclude that NHS Dumfries and Galloway is systemically racist. He stated however that “it is vital that, in agreement with yourself; we look at the outcomes from this grievance as part of the work how we can take steps to mitigate and eliminate any systemic racism that may exist…It is evident that the circumstances around having your name on the biologic prescriptions should have been dealt with differently, and I understand how this could lead to the perception that race was a factor. However, the investigation uncovered other issues within the team’s dynamics, including unprofessional behaviours, lack of understanding and appreciation of others and poor team working practices. These issues, though not directly linked to race, contributed to you feeling marginalized and unsupported”.[190]In conclusion, Mark Kelly decided that the claimant’s grievance should be partially upheld, finding that the claimant was treated with professional disrespect, that his concerns were not fully listened to, understood nor managed appropriately in relation to the biologic prescription issue. He offered a full and sincere apology.[191]He then made a number of recommendations: the anti-racist strategy must be included as a key pillar of NHS Dumfries and Galloway’s culture improvement plan; the rheumatology team are provided with ODL\pro-social team building support; consideration is given to establishing a written standard operating procedure in relation to management of biological prescriptions; and the claimant to take time to consider and reflect upon his behaviours within the team and understand the impact these can have on others.[192]The claimant was advised that if he was dissatisfied with the outcome he could proceed to a stage 2 grievance.[193]In the outcome letter, Mark Kelly also addressed the claimant’s behaviour, stating, “From the information presented, the events of the MDT in June 2021 were escalated to senior management due to your behaviour in that meeting and how it was perceived by those in attendance. I note that you refute that there was anything wrong with your behaviour and you advised me in an email following the grievance hearing that Petra Cannon was not visibly upset in the meeting. However, this does not align with the evidence provided by others present in that call, who advise that the meeting had to be stopped because of your behaviour specifically towards Petra Cannon….Dr Drever…was correct to escalate any concerns she had….others articulated that your behaviour had a negative impact on them, yet when we discussed this at the grievance hearing you expressly told us this was not the case. From the grievance hearing it was evident to me that you lack insight into this and more significantly appear to lack insight into this being the perceptions and feelings described by others on how this behaviour made others feel”.[194]On 15 November 2024, the claimant intimated his resignation in the following terms: “I am writing to formally announce my resignation from my position as consultant rheumatologist, effective immediately. Please consider this letter as my official notice and termination of my employment contract with Dumfries and Galloway health board. The decision has not been made lightly and it follows a series of experiences that have left me feeling unsupported and targeted. I believe these experiences reflect systemic racism within the organisation. The latest incident involves the misuse of the grievance policy by Pamela Jamieson and Mark Kelly, resulting in my victimisation for raising a legitimate grievance regarding systemic racism. Despite the lack of credible evidence, undue weight was given to the statements of those against whom I raised my grievance, even though their claims have otherwise been proven unsubstantiated. The grievance panel also chose not to acknowledge the problem of systemic racism as demonstrated by the evidence available to them. Hence, the problem remains unaddressed. The panel concluded that I raised my voice during a virtual MDT meeting in June 2021 and acted angrily, further suggesting that I lack insight into my actions. This conclusion has effectively laid the groundwork for future unfounded allegations to be made and accepted. It is disheartening that, despite the panel recognising that I was treated unfairly and subjected to professional disrespect and despite positive feedback from colleagues, I, the complainant, emerge from my own grievance process with a negative judgment on my conduct without credible evidence. I believe the Board has violated employment law by breaching my contract, creating a hostile work environment, failing to ensure a safe workplace, and not treating me equitably. Additionally, I have been repeatedly victimized for reporting racism, an act protected under the Equality Act 2010. Specific instances include attempts to set professional traps, such as internal emails from Heather Currie about a patient relative implying clinical care shortcomings. Furthermore there have been multiple instances of the Board protecting individuals who engaged in discriminatory, victimizing, and racially harassing behaviour towards me and others. Further details are outlined in my Employment Tribunal claim and the submitted applications to amend. As a result of these sustained and discriminatory practices, the fundamental trust essential for an effective employer-employee relationship has irretrievably broken down. My health has suffered as a consequence and I no longer feel safe continuing my work at Dumfries and Galloway Royal Infirmary. Therefore I am left with no option but to resign with immediate effect. I am treating myself has having been constructively dismissed”.[195]On 27 November 2024, the claimant withdrew stage his stage 2 grievance and requested further investigation into his other two grievances to cease. Respondent’s policies[196]A suite of standard workforce policies has been developed which apply to all staff within NHS Scotland.[197]The Bullying and Harassment Policy (2122) under definitions states that “Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient. Harassment is unwanted conduct related to a relevant protected characteristic. It has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. It lists the protected characteristics and continues, “Harassment can also occur when there is unwanted conduct relating to other personal characteristics, such as social status or appearance”. It sets out the procedure to be followed in cases involving other employees. If informal resolution is not achieved or possible, then an employee would initiate the formal procedure by making writing to their manager, detailing employee or employees alleged to be demonstrating the behaviours and their nature. The complaint must be acknowledged in writing within seven calendar days. It sets out three potential outcomes following investigation: the complaint is not upheld; the complaint is upheld and justifies learning outcomes; the complaint is upheld and justifies referral to a formal conduct hearing.[198]The policy sets out requirements regarding feedback to the complainant: “The manager or the investigation team, or both will meet with the employee who raised the concern to feedback the findings of the investigation. This will be undertaken with a view to clarifying the reasons for their decisions but with all due regard for the confidentiality of the employee alleged to have demonstrated the bullying and/or harassing behaviours and any witnesses….Where the complaint is not upheld, then unless there has been clear evidence to show the complaint has been raised in bad faith, the employee should be reassured of the appropriateness of raising concerns and that notwithstanding the findings it is acknowledged that is how the employee feels. The outcome will be confirmed in writing, using the standard outcome letter template to the employee within seven calendar days of the feedback meeting. The letter will explain the process for requesting a review and the scope of any review. A complainant who remains dissatisfied may request a review in writing within fourteen calendar days. A review panel will conduct a hearing and consideration will be given to the employee’s case that the process was flawed.[199]The policy sets out the procedure for giving feedback to the employee under investigation: “The manager or the investigation team, or both will meet with the employee to feedback the findings of the investigation and any proposed action. This will be undertaken with a view to clarifying the reasons for their decisions but with all due regard for the confidentiality of the employee who raised the concerns and any witnesses. Where the complaint is not upheld, the employee should be reassured that their behaviour has not been deemed inappropriate. Where the complaint is upheld, the employee should be advised of any learning outcomes and whether these will be managed under the capability or conduct policy.[200]NHS Scotland has created a reflection tool “Am I being harassed at work” to help employees determine whether they fall within the bullying and harassment policy. It states “any of the behaviours can be by individuals or a group using verbal, nonverbal, written or electronic communications. These should be related to one or more of the following protected or personal characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or beliefs, sex/gender, sexual orientation, “other personal characteristics such as trans identities, including non-binary, carers responsibilities, physical appearance”. It sets out questions to allow an individual to assess whether they are experiencing behaviour and gives examples of sexual harassment and stalking.[201]The NHS grievance policy states that, “If you have a complaint or issue regarding your employment situation, then you can make use of the grievance policy to raise and resolve them. Sometimes, issues about a situation or a change being made at work, can become confused with an interpersonal difficulty between you and another individual in the workplace. The grievance policy is to seek resolution on workplace issues or complaints. The bullying and harassment policy should be used if there is an interpersonal difficulty. … If you are unsure which policy applies to your situation, then you can seek confidential advice and support…”.[202]The grievance policy sets out the early resolution process and states that if no resolution is achieved from the meeting, then the formal procedure can be used.[203]It states that the complaint will be acknowledged within seven calendar days, and if it is deemed appropriate that an investigation takes place, agreement will be sought. Then the complainer will be invited to attend and present their case to a hearing before an independent panel. After the hearing, the outcome will be confirmed in writing, with one of the following outcomes: the grievance is upheld; the grievance is not upheld. If not upheld, it can be taken to a second and final formal stage.[204]The workforce policies investigation process applies to both complaints under the bullying and harassment policy and the grievance policy.[205]Under the workforce policies investigation process, an information sharing protocol has been developed (2134). It sets out what and to whom information will be shared. It includes a table setting out the access entitlements of different relevant parties to information relating to an investigation. Employees under investigation are entitled to get access to the investigation outcomes and recommendations, the investigation report, the employee’s case and the hearing outcome, with access only to those statements and other evidence which relate directly to the investigation. The complainant is not entitled access to statements, other evidence, employee’s case, or hearing outcome, with redacted access to the investigation report and in regard to investigation outcomes and recommendations, tailored access which maintains confidentiality of employee under investigation.[206]It states, that, “In bullying and harassment cases, the complainant may feel they are entitled to all of the information collected as they are directly affected by the issues. Complainants should be provided with sufficient feedback to allow them to understand why their complaint has been upheld or otherwise. This should not, however, include statements and notes of meetings which essentially relate to the employee under investigation rather than the complainant”. It explains about redaction and sets out redaction principles, approaches and methods.[207]On 16 April 2024 Julie White wrote to the Scottish Workforce and Staff Governance Committee to express concerns about how complaints of racial discrimination in particular are dealt with under NHS Scotland policies (1015). She expressed concern about the level of redaction required applying the information sharing guidance, resulting in the complainant being provided with minimal information about how the investigation was conducted, potentially leaving the complainant feeling aggrieved at not knowing how the investigation arrived at the outcome; and making it challenging for a complainant to formulate their case for requesting a review of the process.[208]She also raised concern that there is no hearing or meeting following completion of investigation report, meaning that the complainant does not get an opportunity to present their case to a decision making panel as would be standard in other NHS Scotland workforce processes. Further, there is a right of review, but not an appeal, which is constrained to only considering the process and it is not possible to challenge the fairness of the initial decision taken. If a review is upheld based on a flawed investigation or process, the next steps are limited to confirming organisational learnings and the initial outcome cannot be reconsidered based on the findings.[209]She advised that these concerns had been raised by the Board’s Ethnic Minority Staff Network (EMSN) and that in their view the bullying and harassment policy should not be used in any cases of race related discrimination, noting that the policy does not mention discrimination or give any example of it. She stated that, “Given that the EMSN believes that racism, by its very nature, is a systemic problem and the very act of putting in a complaint about it tends to pit many people against the complainant, when an ethnic minority person puts in a complaint of racial discrimination, the EMSN believe that it should not be managed as ‘interpersonal difficulty’ through the bullying and harassment policy but seen as a systemic problem and dealt with under the grievance policy”. She added they were mindful that the NHS Scotland Equality, Diversity and Inclusion Policy was yet to be launched, and asked for views on next steps.[210]The respondent received a reply from the chair of SWAG dated 29 July 2024 (2039) noting these concerns. With regard to the specific concerns in relation to racism and racial discrimination, they were advised that the challenges of separating discrimination from harassment and the situations when the grievance policy versus the bullying and harassment policy should apply were being explored in view of the equality, diversity and inclusion policy that was being developed, and a guide on race was being developed. Tribunal’s discussion and decision Observations on the witnesses and the evidence[211]We were of the view that although there appeared to be a good deal of contested evidence there was in fact little dispute about the material facts in this case. As is often the case in hearings of this sort, any contested evidence related to differing interpretations of the situations.[212]The claimant is clearly highly intelligent and represented himself with considerable ability. Notwithstanding, it was apparent from the evidence that he had a tendency to misread or misunderstand certain situations and did not appreciate how his conduct might be perceived by others.[213]One very clear example of that was in regard to the meeting between the claimant and Ms Hamlet when Ms Hamlet cautioned the claimant to be mindful of how he came across to others. While he believed that he had not revealed his frustrations but remained calm, he admitted in evidence that he was frustrated, and although he did not believe that he had shown his frustration, clearly this was in fact evident to Ms Hamlet.[214]Further, there were a good number of examples from the evidence heard of the events relied on where the claimant clearly misunderstood or misinterpreted situations. Examples include misunderstandings about what was said at the risk assessment meeting and the notes that followed, misunderstanding about the grand round becoming hospital wide, and how the claimant interpreted contributions of Dr Rathnamalala. This suggests that the claimant on occasions misinterpreted what was being said or done, and appears to have contributed to his view that many actions of his colleagues were related to his race.[215]That said, as is clear from our conclusions, the claimant can to an extent be excused from reading into situations that which was not there given his treatment over the prescription issue. In respect of that issue at least, he was left with no option but to believe that what was happening to him was because of his race.[216]Given however what we believed was a tendency to misinterpret situations, we tended to favour interpretations of the respondent’s witnesses where there was a difference of opinion, whom we have found to be generally credible and reliable. We make some further comments about their evidence and why we have come to the conclusions we have in the deliberations which follow.[217]We now turn to consider each issue on the list of issues prepared by the claimant and revised by the respondent which was considered throughout the hearing.[218]We consider it appropriate to observe that the list of issues was drafted by the claimant himself, who is an unrepresented party. The way that the issues were articulated did not make our task of determining the issues any easier, and we observe that they may have been articulated differently had the claimant been represented. However, we consider below the issues for determination as they have been drafted by the claimant, not least because this is the case that the respondent was prepared to meet. Section 13 - Direct race discrimination[219]The claimant makes a number of complaints of direct race discrimination.[220]Section 13(1) of the Equality Act 2010 states that “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. Race is a relevant protected characteristic (section 4). Section 9 states that race includes colour, nationality and ethnic or national origins.[221]Section 23(1) of the Equality Act 2010 states that “On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case”.[222]Thus in order to establish direct race discrimination, a claimant requires to show less favourable treatment in comparison with others in similar circumstances because of race.[223]In making that assessment, the claimant will usually require to point to an actual or alternatively to a hypothetical comparator in the same material circumstances as the claimant, as has been established for example in the case of Shamoon v RUC 2003 UKHL 11.[224]In this case, the claimant relies on a number of actual comparators to seek to establish that he has been less favourably treated, namely Andrew Russell, Petra Cannon, Anne Drever and Colin Malone.[225]Further and in any event, given the claimant must show that the less favourable treatment was because of the protected characteristic, the claimant must also establish a causative link between the protected characteristic and any less favourable treatment. This is thus a two stage test, with the claimant being required to establish less favourable treatment and then that any less favourable treatment was because of race.[226]While the relevant protected characteristic needs to be a cause, it does not require to be the only cause (Owen and Briggs v James 1982 IRLR 616) but must have a significant influence on the conduct (Nagarajan v London Regional Transport 1999 ICR 877). In O’Neill v Governors of St Thomas Moore School 1997 ICR 33, the EAT stated that the protected characteristic need not even be the main reason for the treatment, as long as it was an ‘effective cause’. The EHRC Employment Code confirms this, noting that ‘the characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause’.[227]It has long been recognised that, although the burden of proving discrimination rests with the claimant, the information which might prove that is likely to be in the hands of the respondent, and since they are unlikely to admit discrimination (even to themselves), it can be difficult for claimants to prove discrimination. For that reason, the concept of the shifting burden of proof was introduced.[228]Section 136(2) of the Equality Act 2010 states that “if there are facts from which the court could decide, in the absence of any other explanation, that a person contravened the provision concerned, the court must hold that the contravention occurred…but [that] does not apply if [the person] shows that [they] did not contravene [that] provision”.[229]This shifting burden of proof involves a two stage analysis: first the claimant must prove, on the balance of probabilities, facts which might lead to an inference of discrimination (i.e. establish a prima facie case). It is appropriate to consider all the evidence at that first stage, not only that adduced by the claimant (Efobi v RMG 2021 ICR 1263). If a prima facie case is established, the respondent must in turn prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the protected ground. The Tribunal should take account of the revised Barton Guidance (Igen v Wong 2005 EWCA Civ 142), which confirms that the tribunal should expect to hear cogent evidence from the respondent to discharge that burden, given they are likely to be in possession of the relevant information.[230]It is not sufficient for a claimant to show simply less favourable treatment and a difference of race to shift the burden. “Something more” than a mere finding of less favourable treatment compared with someone without the claimant’s protected characteristic is required before the burden of proof will shift (Madarassy v Nomura International plc 2007 ICR 867 CA). The “more” required need not be a great deal (Denman v EHRC 2010 EWCA Civ 1279).[231]Where the act complained of is not in itself discriminatory but where it is argued that it is rendered so by a discriminatory motivation, ie by the mental processes (whether conscious or subconscious) which led the alleged discriminator to do the act, it is for the Tribunal to draw appropriate inferences from the surrounding circumstances and from the conduct of the alleged discriminator (Amnesty International v Ahmed 2009 IRLR 884 EAT). The prescription issue[232]The claimant at issue 1(a) argues that he was less favourably treated in the following ways: 1 Putting the name of a different consultant in the consultant section of his prescriptions, relying on Andrew Russell as an actual comparator; 2 Petra Cannon blanking out the claimant’s name from the consultant section, relying on Andrew Russell as an actual comparator, and also that when this was brought to the respondent’s attention they failed to investigate; 3 Ignoring the claimant’s concerns about the actions of Petra Cannon, with others in the department teaming up to support her when she raised a concern about his actions, relying on Petra Cannon as an actual comparator; and 4 Excluding the claimant from team decisions around whose name to put in the consultant field of the claimant’s prescriptions, relying on Petra Cannon as an actual comparator.[233]We consider that these first four issues in the list of issues under this heading contain elements of a complaint which is essentially a failure or refusal to put the claimant’s name in the consultant field of biologic prescriptions. Accordingly we consider these issues together.[234]The claimant claims that he has been discriminated against by the practice of putting the name of a different consultant in the consultant section of his prescriptions and not doing the same to the white consultant. When he complained, a decision was made to put department of rheumatology for all prescriptions, which thereby served to avoid putting his name in the consultant field of the prescriptions. The claimant also complains that Petra Cannon “blanked out” his name to prevent it from being included in the consultant field, when she did not do the same to his white consultant colleague.[235]The claimant relies on Dr Andrew Russell and Ms Petra Cannon as comparators. The relevant provisions require any actual (statutory) comparator to be in materially the same circumstances as the claimant.[236]We consider that the claimant was in materially the same circumstances as Dr Russell, because the claimant was a second consultant joining a department, where the other consultant Dr Russell, was the clinical lead. These are the same material circumstances as when Dr Russell joined the department to work along side Dr McMahon, who was then the clinical lead.[237]To the extent that there are any material differences, such as the fact that the claimant was originally a locum (which is arguably not material given the facts found), we readily accept that Dr Russell is an evidential comparator whose circumstances support how any hypothetical comparator may be treated.[238]With regard to stage 1, we accept that the claimant suffered less favourable treatment in comparison with Dr Russell. In particular, when Dr Russell joined the department, when there was one other consultant who was the clinical lead, his name was on at least a number of occasions inserted into the consultant field. Significantly, that was the finding of the grievance panel. In contrast, when the claimant requested that his name be inserted into the consultant field, he was told that it could not.[239]Having found that the claimant was less favourably treated, we came to consider whether he was less favourably treated because of race. While we know that the claimant is of a different race from his comparator, that is not sufficient to conclude discrimination, because there requires to be something more before the burden of proof will shift.[240]We had to consider whether there were facts, primary or secondary, which we had found which would be sufficient to shift the burden of proof.[241]When considering this question, we relied on examples of prescriptions which were lodged (1831-2013) and an additional “prescription bundle” with around 60 additional prescriptions which was lodged. While we appreciate that this represents a selection of what may perhaps have amounted to thousands of prescriptions which were issued by the department during the time period under consideration (from when Andrew Russell joined in April 2018 to the date of the claimant’s resignation) and taking account of reservations about extrapolating numbers from the sample, we considered that these prescriptions were at least indicative of the broader picture, such that we could rely on them to make findings to support our conclusion relating to whether the burden of proof had shifted or not.[242]We consider that the following findings support the inference of discrimination sufficient to shift the burden of proof: 1 The claimant was concerned about the repercussions of the Dr Bawa Garba case, which was highly topical just prior to his commencement in employment with the respondent. This related to a doctor of the same race as the claimant, and his concerns about the findings of the BMA and his knowledge that there are a higher number of complaints against ethnic minority doctors. 2 The other doctors in the department were aware of his concerns. 3 Dr Lucy Moran understood that it was important to the claimant to have his name in the consultant field, stating in the bullying and harassment interview that, “...I knew why Richard wanted to do it because he is such a dotter of I’s, crosser of T’s, that he was, I think, scared, and he’d certainly mentioned to me before about the whole...was it Bawa-Garba case?” 4 Further, Dr Moran, at least, understood as at June 2021, that the claimant’s concerns about his treatment may have been related to his race, and she is noted as having said, “I remember him still being angry and saying...well, I recall him saying this sentence because this is when I first started to think he thinks he's being treated racist-ly because he said to Petra “Is it just me or is it people like me?”. While the claimant said in evidence that he believed he had said “black people like me”, we accepted what was noted having been said at the meeting in the investigation interview, not least because it was nearer the time. However, it is apparent that was what he intended to convey, since Dr Moran read it in that way. 5 When Ms Cannon was first asked by the claimant to put his name in the consultant field, she did not say that field requires to contain the name of the head of department, until she informed him obliquely in early 2021 that his name would not be put there until he was head of department. 6 The evidence does not support Ms Cannon’s contention, as she said in investigation interviews, that she escalated the matter at the earliest juncture to senior colleagues. She did not raise the matter at a team meeting. The claimant raised the matter first with senior colleagues. 7 When the claimant sent an e-mail to Andrew Russell and Anne Drever asking for an explanation why his name was not put in the consultant box, he did not receive any written reply. 8 When the claimant asked Andrew Russell, he told him that Petra Cannon was putting Andrew Russell on the claimant’s prescriptions because they used to have only one consultant, but otherwise did not give an explanation. 9 When the claimant asked Anne Drever, she did not give an answer (and admitted in evidence that she was “tongue tied” which suggests that she did not know the answer). 10 Although Nicola Cameron, the lead pharmacist, was asked for and obtained advice from the national homecare group and reported back, she proposed that “we either continue as we are with the clinical lead name or going forward all new patients could have the name of the initiating consultant/ specialist there”. Neither of these options was taken up, despite Nicola Cameron suggesting exactly what the claimant sought, that is that his name would be included in the consultant field as the initiating consultant. 11 Although it was suggested that the practice of putting the name of the ‘head of department’ in the consultant field was a standard operating procedure (SOP), no such written SOP existed, and the evidence did not support that practice, or indeed even that it was verbal. 12 Although it was proposed that the name of the secretary was put in the consultant field, that proposal was never actioned. While it met with approval from Anne Drever at the time and Andrew Russell, there was confusion which apparently emerged during this hearing, over whether that was to be the generic rheumatology secretary or whether the name of the individual secretaries. 13 Various reasons were put forward to explain whose name was to be put in the consultant field to explain why the claimant’s name was not put in that field: 1 It was the name of the head of department/specialty team lead/clinical lead. When the claimant commenced employment that was Andrew Russell. However Anne Drever’s name was not put there when she became specialty team lead, and although she is not a consultant, it could have been since her name appears on the osteoporosis prescriptions in that field. 2 The claimant was a locum. This was suggested latterly as the reason by Petra Cannon when she was asked for further information at the end of the investigation into the grievance relating to systemic racism. However, this reason was not advanced prior to her e-mail response in October 2024. Ms Cannon did not propose this as a reason to the investigation when she was interviewed in May and August 2022. In any event, the position did not change after the claimant became permanent in September 2022. Further, there are examples lodged of prescriptions where a locum consultant’s name was entered in the consultant field. 3 It was the name of the lead consultant (which was the conclusion of the initial investigation). There was some suggestion that it was because the claimant was not the “lead consultant” but it became apparent that there is no such role, and rather that the role is clinical lead which latterly has come to be called specialty team lead. 14 The consultant field came to be described, apparently after the claimant raised his concerns, as “the contact box”. The claimant relied on the fact that it was Nicola Cameron who first used the language “contact details box” (although it may have been Dr Drever’s defence union). While we accept that section of the prescription is headed contact details, still most prescriptions have a specific field for “consultant”, and logic would suggest that it would be appropriate to put the name of a person in the department who was a consultant, not just a “contact”. 15 The nurses had no issue putting Andrew Russel’s name into the consultant field when he joined, and there were two consultants, and he was not the clinical lead/specialty team lead. Andrew Russell joined the department in April 2018. Micheal McMahon retired in February 2019. A number of examples of prescriptions with Dr A Russell in the consultant field during that period are lodged, including from 8/1/19 (1917); 7/9/18 (1919); 29/8/18 (1928); 28/8/18 (1929); 10/10/18 (PB62); and 14/12/18 (PB 64). This is a critical finding because it shows that when there were two white consultants in the department, both names were put in the consultant field, although Micheal McMahon remained the clinical lead (STL) until he retired. 16 Ms Cannon said in evidence that she had on occasion put the name of Andrew Russell in the consultant field when Micheal McMahon was still employed and remained clinical lead because it was “assumed” that Andew Russell would become the SLT/clinical lead after Micheal McMahon retired. Andrew Russell’s evidence was that he did not himself know when he started in the department that Micheal McMahon was due to retire. In fact Anne Drever became STL after Andrew Russell assumed management roles. 17 Petra Cannon admitted saying to the claimant “when you become head of department we will put your name on the prescriptions”. 18 During evidence, and when Petra Cannon was originally interviewed, this was suggested to be a “joke” or “banter” but we did not accept that. It is difficult to see what is funny about that given the claimant’s frequently expressed concerns until that point. Petra Cannon herself at the time suggested that it might be a misunderstanding due to the fact she is German. We do not consider that because Petra Cannon is German that she can, or should, have escaped the seriousness with which the claimant considered the issue. 19 The outcome of the grievance on systemic racism recorded that when Petra Cannon said that she had meant that was that the rheumatology team would make that decision, which does not of course accord with it having been a joke, and it is difficult to see how that could possibly by inferred from that statement. The investigation found that there was no evidence to support the suggestion that the rest of the team were aware that it was being explained as a team decision. 20 Throughout this hearing, we heard from many prescribing clinicians, including Anne Drever, Lucy Moran, Andrew Russell and Ken Donaldson, that they paid no attention to that section of the prescription form, and that the matter of whose name is in the consultant box is a non-issue. That works both ways. If it was a non-issue, we simply cannot understand why was it an issue to put the claimant’s name there. 21 It need not even be a consultant in the box. We note that Anne Drever’s name was put in the consultant field of the osteoporosis prescriptions. 22 In the department of dermatology, which also issues biologic prescriptions, and where there are two consultants, the prescribing consultant puts their name in the consultant field (see examples from PB). These could be signed by the other consultant when one was on holiday (1490). 23 No witness expressed any objection to the claimant’s name being included in the consultant field, nor knew of anyone who had any objection to that. 24 With regard to the claim that it would be too much work for the nurses to be required to put the name of the consultant prescriber in the consultant field, because the template prescriptions were “prepopulated” and would need to be changed every time, the evidence does not bear that out. We were aware that the prescription templates were on microsoft word. While some aspects of the blank prescriptions may have been prepopulated (for example the address), the “consultant” field was not, and this was confirmed by the differing versions and spellings in the examples lodged, e.g Department of Rheumatology (1863); Rheumatology department (sic) (1864); Rheumatology Team (1865); Dept of Rheumatology (1866) Rheumatology (1867); Dept. Rheumatology (1881); Dept of Rheum (1905); Department of (sic) (1906); Dept of Rheum(1907). We accepted the submission that this shows that this field was typed in when each prescription was being prepared. 25 This decision (to put department of rheumatology) did mean that the claimant’s name was not to be put in the consultant box. 26 The rationale that it was too much work for the nurses was found not to be borne out in the investigation either. 27 The issue of the claimant suggesting or insisting at the time that they go back and change the names on previous prescriptions, which he denied, was first raised by Petra Cannon when she was asked supplementary questions in 2024 when the grievance panel had made preliminary findings. 28 The claimant was given no right to reply to the further information provided by Petra Cannon. 29 From the date that it was decided at the MDT meeting that the consultant field should bear the words “department of rheumatology”, there are many examples lodged of other doctor’s names being put in the consultant/clinical lead field, namely: 1 Lucy Moran’s name on 30/5/22 (1868); 17/11/21 (1875); 21/10/22 (1877); 21/12/21 (1879); 9/11/22 (1886); 17/10/22 (1890) 18/12/22(1891); 15/7/21 (1892); 17/10/22 (1893); 8/12/22 (1894) 15/7/21 (1895); 17/11/21 (1938) and 24/12/21 (1940); 2 Anne Drever’s name on 21/10/21 (1876) and 5/12/22 (1884); 3 Andrew Russell’s name on 12/12/22 (1872); 26/7/21(1896) 20/5/21(1898); 13/5/21(1899); 24/5/21(1904); 29/4/21 (1938); and 25/11/21 (1954). 30 Andrew Russell’s name was thus put on prescriptions even after he had become the associate medical director in September 2021; and when Anne Drever was STL. 31 Of the large number of prescriptions lodged (1831 to 2013) including in addition the prescription bundle pages 5 to 68 (PB), there are (only) three prescriptions with the claimant’s name typed in the consultant field (it is not apparent which nurse completed the prescription) (see 5/4/23 (1972) 4/1/24 (1976) and 22/1/22 (PB 12)). This would appear to have been done “in error” given the practice then was to put “department of rheumatology” but it shows that it could have been done, as the investigation had also found. 32 There are a number of examples where the box is left blank (see PB 25, 21, 14, 13, 11) and this is completed by the claimant. There are fewer examples of other doctors in the department receiving prescriptions with the consultant field left blank, only one for Andrew Russell, signed by Lucy Moran as prescriber (PB 26), one by Lucy Moran (PB 18), three by Anne Drever (PB 6,17,24). 33 This was dealt with as a “team issue” when there was no clear evidence why it should be a matter for the team rather than for the individual consultant. 34 The investigation found that the department had deferred to the views of Petra Cannon. 35 Although the claimant’s initial complaint against Petra Cannon was not upheld, learning outcomes for her were identified, although this is contrary to the outcomes identified in the bullying and harassment policy, which would indicate that learning outcomes would only be identified when a complaint was upheld. 36 There was no evidence that any other departments put the department name in the consultant field. 37 The outcome of the claimant’s grievance was that, he was “treated with professional disrespect, that [his] concerns were not fully listened to, understood nor managed appropriately in relation to the biologic prescription issue”.[243]Relying on all of these facts cumulatively, we accept that the claimant has, on the balance of probabilities, proved facts from which an inference of discrimination could properly be drawn, and accordingly, we conclude that the burden of proof shifts.[244]Accordingly it is for the respondent to prove, on the balance of probabilities, that the treatment of the claimant involved no discrimination, which in the context of a direct discrimination claim, means that it was in no way whatsoever because of race. In line with the guidance in Igen, we would expect to see cogent evidence from the respondent to discharge that burden.[245]We therefore turned to consider whether the respondent had provided an adequate, non-discriminatory reason for the refusal/failure to put the claimant’s name in the consultant field of the biologic prescriptions.[246]We take into account the facts, from the evidence of both the claimant and the respondent, which we relied on to support inferences of discrimination set out above. We have found that the reasons which were advanced by the respondent were shown not to be supported by the evidence and/or were shown to be inconsistent over time. In particular, the respondent’s rationale that it was the head of department whose name was put in that field prior to the arrival of the claimant is not supported by the evidence. There are a good number of examples of Dr Russell’s name being put in that field. The rationale (given by Ms Cannon in particular) was because they knew that Dr Russell was to become head of department. The evidence indicates however that they could not have known that. Dr Russell himself did not know that Dr McMahon was intending to retire when he commenced employment there in April 2018. Although Dr Drever was appointed to the STL role (which we understood amounted to the same thing) under a “command and control” system, that was because of the pandemic and we understood that there may be expressions of interest exercises in the normal course. Further Dr Drever was appointed as head of department although she was not a consultant. Given that she (and indeed Dr Moran) had both worked in the department for over 20 years by that time, clearly one or other could have been appointed head of department, since the head of department need not be a consultant. In any event although she was head of department (STL) her name was not used.[247]Further there was no clear rationale why the decision should be made not to put the claimant’s name, but rather to put the “department of rheumatology” on his prescriptions beyond that was apparently urged by Ms Cannon and that there was found to be (in the investigation) a certain amount of deference given to her wishes. Even if it is “just” contact details, the name of the consultant is stated to be required. We heard that there were no other departments who treated that section of the prescription in that way. It was therefore not apparent to us why that would be necessary, given the variety of practices which we heard in evidence.[248]Nor was the suggestion that it would be more work for the nurses established in the investigation or in this Tribunal. We heard that Dr Moran thought it would be but that was in no way clear to us. In particular, we heard that the prescriptions were word documents that would in certain respects require to be amended for each prescription, and the claimant took us to a large number of prescriptions where it was quite clear that the “department of rheumatology” or something referencing that was typed in for each prescription. Indeed, when Ms Cannon was asked (again) in October 2024, she appeared to suggest that in the normal course it would not be more work, but raised (apparently for the first time) the suggestion that the claimant had asked them to retrospectively amend prescriptions previously issued, which he denies requesting.[249]The rationale that it was because the claimant was a locum was not advanced by Ms Cannon until towards the end of the grievance deliberations in October 2024, is not borne out by the evidence. Indeed the fact that Mr Kelly felt the need to go back to her to ask her yet again for her explanation at a point when he accepted that there was evidence that the claimant was treated differently, and that it was “potentially” because of race, suggests that the respondent was not able to identify a logical rationale for the decision. Crucially, Mr Kelly did not then accept the further explanations proffered by Ms Cannon, that is that she had regarded it as a change to local practice which caused too much additional work, and her explanation that it would be a team decision was not accepted either.[250]We were not able to conclude, on the basis of the evidence which we heard, that the respondent had advanced an adequate non-discriminatory rationale for the failure to put the claimant’s name in the consultant field. We were of the view that the respondent had not advanced evidence to support the respondent’s contention that the failure or refusal to put the claimant’s name on his prescriptions had nothing whatsoever to do with his race.[251]We should make it clear that the claimant does not require to adduce positive evidence in this Tribunal that any of the respondent’s staff were “racist” or indeed even that they treated the claimant the way that they did “because of race”. It is sufficient that the claimant has pointed to facts which shift the burden of proof to the respondent, and it is for the respondent to advance evidence to show that the reason why the claimant was treated the way he was treated had nothing whatsoever to do with his race. We conclude that no such cogent evidence was advanced. The shifting burden of proof is designed precisely to acknowledge that individuals (and respondents) might not admit, even to themselves, that they have acted because of race.[252]Turning back to the specifics of the issues highlighted for consideration by this Tribunal, we accept that the claimant has been less favourably treated because of race by the name of a different consultant being entered in the consultant section of his prescriptions; and overruling (or ignoring) his concerns when he complained of the practice (issue 1.a.i).[253]He complains too of the fact that Petra Cannon blanked out his name from the consultant section, but she did not do this to his comparator consultant; and that when this was brought to the attention of the respondent, the respondent failed to investigate (issue 1.a.ii). He names Andrew Russell as a comparator. We accept that there were instances when Ms Cannon left the box blank, and we saw only one example of that having been done in prescriptions signed by Dr Russell. We considered that is an aspect of the complaint about the failure to put his name in the consultant’s field, which we have found was less favourable treatment because of race. We have considered the failure to investigate allegation separately below.[254]Given that the burden of proof shifts to the respondent to prove that there was no discrimination whatsoever, we find that the respondent has failed to advance a non discriminatory reason showing that the reason for the claimant’s treatment - in regard to putting the name of a different consultant in the consultant box or leaving that blank - was because of race. Accordingly, we find that the claimant’s claim of direct discrimination set out at issues 1(a)(i) and 1(a)(ii) in this regard succeeds to that extent.[255]We turned to consider the claimant’s other claims of direct race discrimination, including the failure to investigate (included under issue 1(a)(ii)). Failure to investigate the prescription issue (issue 1(a)(ii))[256]The alleged failure to investigate the prescription issue is a separate matter to the refusal or failure to put the claimant’s name in the consultant field.[257]We did not accept, as confirmed by our findings in fact, that there was a failure to investigate the prescription issue. When the claimant raised the matter with his then line manager Mr Girvan in June 2021, attempts were made to facilitate mediation between the claimant and Ms Cannon. That mediation was not successful, but the claimant’s concerns were not ignored. Specifically, Mr Girvan advised the claimant to lodge a formal complaint. We do not accept that there was any deliberate intention to deflect matters by the recommendation to use the bullying and harassment policy, but rather that this was intended as a supportive measure. The claimant’s complaint was subsequently investigated in line with standard procedure.[258]The fact that the claimant was unhappy about the policy he was advised to complain under, the way the investigation was dealt with, did not agree with the ultimate outcome, or that the outcome was delayed for various reasons, does not equate to a failure to investigate. Ignoring the claimant’s concerns about the actions of Petra Cannon (issue 1(a)(iii))[259]The claimant alleges that the respondent ignored his concerns about the actions of Ms Cannon and that other members of the rheumatology department and the management “teamed up” in support of Ms Cannon and that amounts to direct race discrimination. He identifies Ms Cannon as his comparator.[260]This relates to the claimant’s claim that he was less favourably treated when he raised a concern within the department on 16 February 2021 about the prescriptions issue and the conduct of Ms Cannon, compared with concerns expressed about his behaviour towards her at the team meeting on 10 June 2021.[261]The claimant argues that his concerns were ignored while Ms Cannon was supported when she expressed concerns about him. He relies on the fact that Dr Moran had understood the claimant’s complaint to be that he was being treated “racist-ly”; and that the investigators found the team deferred to and supported Ms Cannon.[262]However, on the specific question of whether there was less favourable treatment the comparator must be in materially the same or similar circumstances. We could not say that the claimant’s concerns about the prescriptions issue or Ms Cannon’s treatment of him meant that he was in the same material circumstances. The claimant was a consultant who had lodged a complaint by e-mail which, although there was no written response, was acted on, while the comparator, the lead nurse, became upset in a meeting because of the way she was addressed by the claimant. We could not say these circumstances were comparable and therefore we did not accept that this amounted to less favourable treatment in terms of the relevant provisions of the Act. Excluding the claimant from team decisions about whose name should be in the consultant field (issue 1(a)(iv)).[263]The claimant argues that his exclusion from team decisions around whose name is put in the consultant field of the biologic prescriptions was a separate act of less favourable treatment, and that he was treated less favourably than Ms Cannon, because her views about what should go in that box were deferred to and accepted while his were not.[264]However, we have made findings in fact which do not support any conclusion that the claimant was “excluded” from team decisions. He was invited to the team meetings. He contributed to the team meetings. He did not agree that the secretary’s name should be put in the consultant’s field, and that proposal was not followed through, although it was supported by Petra Cannon and Anne Drever. He was at the meetings, in March and June, when the issue of “department of rheumatology” was discussed and decided upon. He did not object at the time, although that was not what he wanted and he became increasingly unhappy about it. The fact that he did not like the outcome and did not make that clear does not equate to him being “excluded” from the team decision around this matter. The change of the specialty team lead (STL) (issue 1(a)(v))[265]The claimant claims that he was excluded from the STL selection process, identifying Dr Drever as his comparator. We have made a finding in fact that there was no selection process undertaken so that the claimant could not be excluded from it. We heard that Dr Drever, who had worked in the department for over 25 years, was asked to take on the role of STL by Dr Russell when he was deployed full-time to a leadership role at the start of the pandemic. At that time the hospital was operating in unprecedented circumstances, and a “command and control” approach was taken. This was the reason why there was no selection process. We were given other examples of personnel who were asked to step into roles at that time (and remain now in those roles, such as Dr Gracey Bell in the role of deputy medical director).[266]The claimant also claims that he was prevented from knowing that the STL had changed for many months. He said that he did not find out that the role had been allocated in March 2020 until after he lodged these proceedings. We did not accept however that the claimant was deliberately “prevented” from knowing. The decision made was an expeditious one given the challenges of the pandemic. There is little visibility of the role. During the pandemic, when meetings were largely on teams, it would be even less visible. It is an administrative role which does not attract any extra salary or status. The claimant advises that he did not appreciate that Dr Drever was chairing the weekly “huddle” meetings, given Dr Russell still attended those. Although others were apparently aware before the claimant, they assumed that an e-mail would have been sent announcing the appointment, but no e-mail was produced. Dr Drever told the claimant about the appointment shortly before the first departmental wide team meeting which she was due to chair. This prompted her to change her e-mail designation because that would explain to all the staff why she was organising that meeting. The implication of that is that no department wide announcement had been made, and that no formal announcement was made to any of the team. The outpatient issue (issue 1(a)(vi)[267]The claimant complains about the failure to do anything about the selective and less favourable treatment compared to the white clinicians (specifically Andrew Russell) by staff of the outpatient department, which he argues amounts to direct race discrimination.[268]The claimant had originally relied on around 10 examples of so-called less favourable treatment in his claim form, but by the time of the hearing, he elected to rely on two examples from his pleadings, namely one from 2021 (example 5) and one from 2024 (example 1). He states that he selected these because two different staff members gave him conflicting instructions about calling in patients for their appointments, and given one was in 2021 and one in 2024 that may support a claim that any discrimination was a continuing act.[269]We did not however accept that the facts supported the claimant’s contention that he was treated less favourably by staff in the outpatient department, or that there was any failure to deal with his complaints.[270]On the matter of less favourable treatment, we heard evidence from the other doctors in the department that they too had similar experiences. We heard in particular from Dr Russell (who is the named comparator) that his invariable practice was to go out and collect patients himself, such that scenarios like those complained of were unlikely to occur. We noted that the claimant (in relation to example 5) suggested that such incidents may be happening to other doctors.[271]Even if there was less favourable treatment, we were not able to conclude that any conduct of the outpatient staff was because of race. We did not hear any evidence which might raise an inference of discrimination. In any event, in regard to example 1 at least, we heard that there was an explanation for any alleged less favourable treatment which was staff shortages at a time of a departmental move, so that “the reason why” was apparent.[272]We do not accept that there was a failure to deal with complaints and we conclude that the respondent took the complaints seriously when they were raised both with local and senior management. In particular, we noted that in regard to the incident in 2021, the nurse line managers responded quickly to the claimant’s concerns, as did Mr Girvan when he raised the matter with him. Likewise when the claimant raised concerns in 2024, the nurse in charge responded quickly. When he raised the matter with his clinical colleagues, Dr Drever responded straight away, and arranged for the issue to be raised with the deputy chief operating officer, Nicole Hamlet, who put in train actions to deal with his complaint. Sustaining the discriminatory practice (issue 2(a)(i))[273]In regard to this complaint the claimant claims not only against the first respondent but also against the second and third respondents.[274]The particular complaint is that the first, second and third respondents have “treated the claimant less favourably on the grounds of his race by issuing a grievance outcome to the claimant on 30 October 2024 which sustained a discriminatory practice, namely the writing of “department of rheumatology” on biologic prescriptions…which prevented the claimant from having his name on prescriptions and failed to stop the practice despite it having been established that he had been subjected to professional disrespect, his concerns were not listened to or managed appropriately”. He names as his comparator “white consultants such as Dr Colin Malone, consultant dermatologist and Dr Andrew Russell”. If such identified comparators were not considered to be appropriate comparators, the claimant relies on a hypothetical comparator.[275]Although the claimant pursues this as a complaint against the first, second and third respondent, we were of the view that the second respondent could not be liable for any alleged discrimination on an individual basis because she was not the decision-maker. Rather she was an HR adviser, and as was recognised in evidence, while she advised and guided Mr Kelly, it was Mr Kelly alone who was responsible for the decision which was made.[276]While we have found that the practice of failing or refusing to put the claimant’s name on the biologic prescription amounted to direct race discrimination, we considered whether issuing the grievance outcome, relating to a complaint about that and subsequent treatment, was less favourable treatment because of race, for which the first respondent and Mr Kelly, the third respondent and decision-maker, were both liable.[277]The claimant names white consultants as comparators. We have accepted that the claimant was less favourably treated in regard to the prescriptions issue than named white comparators. However, here we require to consider whether he was less favourably treated than his named white comparators in regard to the grievance outcome. The simple answer to that is that neither Dr Russell (nor indeed Dr Malone) were in the same material circumstances as the claimant, given that they did not themselves lodge grievances.[278]Accordingly, we considered whether, relying on a hypothetical white comparator, it could be said that the claimant had been less favourably treated because of his race.[279]The claimant’s grievance was only partially upheld. The outcome of the grievance was that the claimant was treated with professional disrespect, that his concerns were not fully listened to, understood or managed appropriately in relation to the biologic prescription issue. Despite that, the respondent did not, as an outcome of the grievance, decide that the less favourable treatment was because of his race or specifically that the practice, of putting department of rheumatology and not the claimant’s name, should cease. Given that an outcome could have been that the grievance was fully upheld, we were prepared to accept that the claimant had been less favourably treated than a hypothetical white comparator who lodged such a grievance.[280]We turned to consider whether this less favourable treatment was because of race. There being no direct evidence or obvious reason why, we considered whether there were facts from which we could infer discrimination such that the burden of proof shifted. Since this is not an inherent case, we needed to consider the conscious or subconscious motivations of the decision-maker.[281]We take the view that the following facts support an inference of discrimination: 1 Despite Ms Cannon having been interviewed on several occasions during the previous two investigations, the grievance panel decided to interview her again. 2 The grievance panel was of the view that the claimant had been treated differently. 3 The grievance panel was of the view that that different treatment was potentially because of the claimant’s race. 4 The responses which Ms Cannon gave did not provide any evidence that the treatment was not because of race. 5 The responses of Ms Cannon introduced new reasons for the treatment which had not been advanced in previous interviews. 6 Mr Kelly concluded that the actions of Ms Cannon demonstrated a lack of professionalism and respect. 7 He concluded that prescriptions should have been produced with the claimant’s name on them. 8 He concluded that the prescriptions issue should have been dealt with differently. 9 He understood how the way it was dealt with could lead to the perception that race was a factor. 10 He referenced other issues including unprofessional behaviours which he said were not directly linked to race. 11 He understood how that could lead to the claimant feeling marginalised and unsupported. 12 He made a recommendation that consideration should be given to a written standard operating procedure being introduced to deal with the management of biologic prescriptions. 13 He did not recommend that the claimant’s name should be put in the consultant field of biologic prescriptions.[282]We decided that all these facts are sufficient to raise a prima facie case of discrimination. Accordingly we find that the burden of proof has shifted and we came to consider whether the “sustaining of the discriminatory practice” (of putting department of rheumatology and not permitting the claimant to put his name in the consultant field) was nothing whatsoever to do with race.[283]We gave careful consideration to the reasons put forward by the respondent and by Mr Kelly for the outcome of the grievance and his decision to only partially uphold it and not to revise the practice or require the claimant’s name to be put on the prescriptions. We asked ourselves, were the reasons given for this outcome nothing whatsoever to do with race?[284]Ms Stobart relied on the fact that the practice of putting “department of rheumatology” on the prescriptions treats all consultants the same, and that it was therefore not a “discriminatory practice”. As discussed above, we have found that the practice of putting department of rheumatology had the result that the claimant’s name was not put on prescriptions, which was his complaint, and that this amounted to direct discrimination, and could be categorised as a “discriminatory practice”.[285]Ms Stobart also relied on the fact that Mr Kelly was not directly asked, as an outcome of the grievance, to require that the claimant should put his name in the consultant field. Mr Kelly does not in terms ask for the practice (of putting department of rheumatology) to stop as an outcome of the grievance, although he did recommend that consideration was given to establishing a written standard operating procedure in relation to management of biological prescriptions.[286]We were of the view that although the claimant did not specify it as an outcome, it is clear in the grievance that the claimant is complaining about the practice of not putting his name on biologic prescriptions by reference to the concerns about the continued use of “department of rheumatology”, and therefore it is self-evident that he was expecting as an outcome a change to that practice.[287]We have found that the practice of failing or refusing to allow the claimant to put his name in the consultant field was an act of race discrimination. The respondent did not make it a requirement that his name should henceforth be put into the consultant field as an outcome to the grievance, perhaps because Mr Kelly himself did not accept that the practice was “discriminatory”.[288]Rather, Mr Kelly relied other factors to explain the treatment of the claimant and in particular: 1 that the stated practice was to put the head of department on biologic prescriptions and the failure to change the name to the claimant’s name was because Ms Cannon regarded this as requiring a change to a local practice; something that would have, in her view, caused too much additional work; 2 taking this stance Ms Cannon failed to understand the importance of the issue to the claimant and demonstrated a lack of professionalism and professional respect in managing the issue; that the team appear to defer to her opinion; 3 there was a lack of awareness about why the issue was important to the claimant and the team failed to give weight to that; 4 he was unclear why the solution of putting “department of rheumatology” was unsatisfactory and why the claimant failed to request a meeting with Dr Drever to explain his continuing concerns; 5 there was no deliberate failure on the part of Dr Russell or Dr Drever to deal with the claimant’s concerns; and 6 issues within the team’s dynamics, including unprofessional behaviours, lack of understanding and appreciation of others and poor team working practices.[289]Given these conclusions, the grievance was partially upheld, but Mr Kelly stopped short of concluding that the practice in regard to the prescriptions was because of race. This was because Mr Kelly believed that practice to be explained by factors other than race. We take the view that he was wrong about that. We did not agree that the evidence before him supported his conclusion that the practice was in fact fully explained by these other factors.[290]We came to the view that the fact that Mr Kelly was not prepared to come to the conclusion, despite very many indications to the contrary, that the treatment of the claimant could have been because of race was because there was no direct evidence to support that conclusion. We understood that Mr Kelly was looking for positive evidence that the treatment was because of race but found none.[291]This was despite the fact that, having considered the investigation report and having gathered further evidence, shortly prior to coming to his final conclusion, he was of the view that the claimant was treated differently and it had the “potential” to be because of race.[292]However, he decided it was not after all because of race because, as he stated in cross examination, none of the witnesses said anything that was indicative of the claimant being treated differently because of race and that the claimant was a highly regarded clinician.[293]Mr Kelly was asked in cross examination what evidence he would have expected to see for him to conclude that the claimant’s treatment was because of racism. He said in response that he “was looking for any signs or other information alluding to [the claimant being treated] differently because of race, colour, language or speech”. However Mr Kelly could or should not have expected when Ms Cannon was asked yet again for her explanation about why the claimant was treated differently that he would get a response of that nature. It is generally understood that individuals are highly unlikely to admit, even to themselves, that the reason they have acted in a particular way is because of another person’s race.[294]We were aware that individuals do not take accusations of racism lightly, and perhaps take such accusations more seriously than other allegations of discrimination. Indeed that was evident to us from the evidence of a number of witnesses, but in particular Mr Kelly who refuted any allegation that he sustained a discriminatory practice “vehemently” and said that he found it “professionally damning” and “personally devastating” to be accused of being “directly racist”.[295]We came to the view that Mr Kelly concluded as he did because he believed that an accusation of racism was devastating so that he was simply not prepared to countenance that anyone else might, even subconsciously, act in a particular way because of race, unless he observed positive indicators that any conduct was because of race. This, we say, is where he went wrong, because he felt compelled to come to a palatable solution which recognised the less favourable treatment but avoided the difficulty of the organisation facing up to the fact that their staff may have discriminated against other staff.[296]We have concluded that Mr Kelly has made a decision which had the effect of sustaining a practice which we have found to be discriminatory. Accordingly we conclude that the decision made by Mr Kelly’s conclusions were based on a false premise, and which do in fact have the result of sustaining a discriminatory practice.[297]Had he had more of an open mind on the matter, then we are of the view that he would have concluded that the failure to provide any plausible, evidence-based non-discriminatory explanation for the treatment, meant that the grievance on this point should have been upheld.[298]This left us with no other option but to conclude that his actions where “because of race” (even if they were not because of the claimant’s race per se). We conclude that the reason he did not uphold the grievance on this point was “because of race” in this broader sense.[299]We wish to make it absolutely clear that we are not saying that Mr Kelly was “racist”. However, after reflecting very carefully on the evidence, we could not say that the decision which Mr Kelly made had nothing whatsoever to do with race. We say that he was influenced by a desire not to find that any member of staff could have made decisions based on race, due in part to his personal abhorrence of that accusation being levelled at him, or indeed anyone else in the organisation.[300]Accordingly, we conclude that the outcome of the grievance did sustain a discriminatory practice and that this constituted direct discrimination because of race. We find that both the first and third respondents are liable for direct discrimination to that extent. For the avoidance of doubt, we did not believe that the evidence supports any conclusion that there is “systemic racism” in the organisation. Harassment[301]Section 26(1) of the Equality Act 2010 states that a person(a) (A) harasses another(b) (B) if they engage in unwanted conduct related to a relevant protected characteristic (here race) and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating hostile degrading humiliating or offensive environment for B. No comparator is required for the purposes of proving harassment.[302]If it is shown that this was the purpose, then harassment will be established. If not, in deciding whether the conduct has the proscribed effect, the Tribunal must take account of the claimant’s perception and whether it is reasonable for the conduct to have that effect as well as the other circumstances of the case. This thus includes both subjective and objective assessments.[303]Conduct need not be repeated behaviour, and a one off incident or comment can amount to harassment (Richmond Pharmacology v Dhaliwal [2009] IRLR 336 EAT). Encounter with Petra Cannon 11 February 2021 (issue 3(a)(i))[304]The claimant argues that on 11 February 2021 “Petra Cannon leant over [him], looking down into his eyes pointing into his face and saying when you become the head of the rheumatology service we will start putting your name there”.[305]Given that Ms Cannon accepts that she did say this, although not with the emphasis that is suggested here, and not accompanied by the actions alleged, we have made a finding in fact that this was said. We find too that Dr Russell was present in the room (although he has no recollection of the incident) given both the claimant and Ms Cannon recall that he was present.[306]The fact that Dr Russell was not aware of any such behaviour might suggest that Ms Cannon did not say what she said in the manner in which the claimant believed that she did. However, the fact is that she accepted that she said it, and it is clear that this was unwanted conduct which the claimant found intimidating and a violation of his dignity.[307]However, the question we had to consider carefully was whether this was “related to race”. The shifting burden of proof principle also operates in relation to harassment claims. If the claimant points to facts which might raise an inference of discrimination, then the employer must prove that the treatment was in no sense whatsoever related to race.[308]We have set out above facts upon which we have concluded that an inference might be drawn that there was discrimination. Accordingly, the burden of proof shifts and the respondent must prove that the treatment is in no sense whatsoever related to race.[309]The reasons we set out above which led us to conclude that the respondent has failed to prove that this conduct has nothing to do with race are equally applicable to this allegation.[310]In particular, it has been established that the purported rationale for not including the claimant’s name in the consultant field could not be explained by the fact that he was not head of department, as Ms Cannon indicated. It is not a true or accurate statement. Dr Russell’s name was included when he was not head of department and the suggestion that it was because it was known that he would become head of department is not borne out by the facts, because he may or may not have become head of department. Indeed Dr Drever, who is not a consultant was made head of department, but her name was not put on the prescriptions. The respondent’s position as articulated in the outcome letter following the grievance was that there was evidence that prescriptions were produced with Dr Andrew Russell’s name on them when Dr Mike McMahon was the head of department, so they should have been produced with the claimant’s name on them.[311]As noted above, Ms Cannon subsequently suggested that it was because the claimant was a locum, and that would have been a very obvious and clear cut answer to his question if that was in fact the reason. In any event, she did not proffer that explanation when she was interviewed in 2022, the practice did not change after he became permanent, and the first time she suggested this rationale was after she was asked yet again for her explanation in October 2024.[312]We heard it suggested that this was said in jest (by Ms Cannon when initially interviewed), but as discussed above, we did not accept that. It was noted further in the outcome letter that, when Ms Cannon was asked during the investigation why she had said that to him, that this simply meant that the rheumatology team would make that decision. However, there was no evidence to suggest that she had the support of the rest of the team, or that she referred the matter to a team meeting, and it is not clear or self-evident what the “we” might be referring to.[313]While Mr Kelly concluded that the practice proclaimed had been to put the head of department on biologic prescriptions and the failure to change the name to his name was because Ms Cannon regarded this as requiring a change to a local practice, it has not been established that there was any consistent local practice. He concluded that she had failed to understand the importance of the issue to the claimant and demonstrated a lack of professionalism and professional respect in managing the issue. Although he found that her actions had the “potential” to be because of race, it seems that because he found no positive evidence to support that possibility, he did not accept that her actions were then “related to race”.[314]It is not necessary, in circumstances where the burden of proof has shifted, for this Tribunal to find positive evidence that the treatment related to race in order to conclude that the relevant provisions of the Equality Act have been established. In the absence of an adequate, non-discriminatory rationale, based on cogent evidence, we find that the respondent has failed to prove that the treatment was in no way whatsoever related to race.[315]Whether or not it was Ms Cannon’s intention to intimidate the claimant, it is the claimant’s position that it had that effect. Accordingly we considered whether it was reasonable for the treatment to have that effect, bearing in mind all the circumstances of the case. In this case, given the claimant’s repeated and consistently expressed concerns about his name not being included in the consultant box, when there was no supporting rationale for that, and when it was not in fact the head of department’s name which was put there, and given that the respondent concluded following investigations that the claimant’s name could have been put in the consultant field, we have concluded that it was reasonable for the claimant to have taken offence by what was said.[316]Accordingly we find the claimant’s claim of harassment related to race in regard to this encounter to be well-founded. Putting the name of the secretary in the consultant box (issue 3(a)(ii))[317]The claimant complains that, “At the suggestion of Petra Cannon and Anne Drever, all members of the rheumatology team proposed putting the name of the secretary in the consultant section of the prescriptions; they never did this before the claimant requested his name be in the consultant section; while Andrew Russell and Anne Drever….were having their names on prescriptions; however when the claimant asked for the same, it was declined”.[318]In terms of the factual background, while this was suggested, and apparently supported by Dr Drever, it did not in fact happen.[319]We question therefore whether this could be unwanted conduct related to race which had the proscribed purpose or effect. The claimant asserts that it was unwanted conduct, that he felt humiliated by the proposition; and indeed he made it clear in the meeting that he did not approve. He is noted at saying, “At this point, it became clear to me that not only was Petra determined not to see my name listed as consultant, she had also managed to convince others to the point that colleagues would either support her or stay neutral even if the proposition was wrong and made me feel humiliated”.[320]Given our other findings about the actions of the respondent in not permitting his name to be put in the consultant’s field, we accept that the proposal to put the secretary’s name there (which would have the effect of ensuring that his name was not put there) could well be related to race, and that it was unwanted conduct which had the proscribed effect.[321]However, given that at the meeting the claimant’s objections were acted upon and the proposal was not carried through, we took the view that in these particular circumstances is was not reasonable for him to have taken offence, such that this could be said to amount to race discrimination. Accordingly this claim is not wellfounded and is dismissed. The Ethnic Minorities Support Network (EMSN) issue (issues 3(a)(iii) and (iv))[322]The claimant argues that the following conduct of Dr Rathnamalala amounts to harassment related to race: 1 Telling the claimant on the telephone on 29 June 2022 that the EMSN is “a stupid idea from the Scottish Government and it will promote segregation”. 2 Openly challenging the need for the network at a network meeting on 27 July 2022 and describing it as segregation; by opposing a plan for active bystander training; arguing that there is no evidence that bullying or discrimination exists in the organisation.[323]While there is a question about whether Dr Rathnamalala called the network “stupid” since she does not recall that, and while the claimant’s recalls that she did, we noted that it was after that conversation that the claimant invited Dr Rathnamalala to be a members’ experience officer for the network. We considered that if she had said it then at the very least the claimant was not offended by it.[324]We have made findings in fact relating to the other references, so we find that the conduct complained about is established, notwithstanding Dr Rathnamalala’s further explanations.[325]The claimant asserts that the conduct was unwanted, and related to race, and had the proscribed purpose or effect. While it may well be that the comments were unwanted, and that they were related to race in a broad sense, we did not agree that it was Dr Rathnamalala’s intention to violate the claimant’s dignity or create an intimidating environment.[326]Nor did we did not accept that it did in fact have that effect. We noted that the claimant insisted that he was writing on behalf of the network and that he himself was not intimidated by the comments (for example in the e-mail dated 2 August 2022), but rather concerned that it might impact on the behaviour of others.[327]In any event, and crucially, the claimant requires to show that any unwanted conduct has the purpose or effect of violating his dignity or creating an intimidating environment for him (the claimant being the person B in the relevant provision) and we conclude that he has not done so.[328]Accordingly this claim is not well-founded and is dismissed. Victimisation[329]Section 27 of the Equality Act 2010, headed up victimisation, states that “A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act”. Protected acts include “bringing proceedings under this Act” and “doing any other thing for the purposes of or in connection with this Act”.[330]Thus a claimant seeking to establish victimisation will require to show(1) that they have done a protected act;(2) that they have been subjected to a detriment; and(3) that they were subjected to that detriment because of the protected act.[331]Detriment is not defined in the Equality Act but the EHRC code of practice, at paras 9.8 and 9.9, makes it clear that it covers a wide range of conduct and treatment, essentially anything which a claimant might reasonably consider puts them a disadvantage, although an unjustified sense of grievance will not be enough.[332]On the question whether the claimant was subjected to the detriment “because of” the protected act, as with direct discrimination, the essential question is what, consciously or subconsciously, motivated the employer to subject the claimant to the detriment. This generally requires consideration of the mental process of the employer, ie did the doing of the protected act have a significant influence on the employer’s decision (Najarajan v London Regional Transport 1999 ICR 877); it is not necessary for the protected act to be the primary reason for the treatment, so long as it is a significant factor.[333]Self-evidently, detriment cannot be because of a protected act where the person who inflicted the detriment did not know about the protected act (Scott v London Borough of Hillingdon 2001 EWCA Civ 2022).[334]Victimisation claims are also subject to the shifting burden of proof concept, which means that there must be prima facie evidence from which inferences can be drawn. That said, a Tribunal will not always require to have resort to the burden of proof provisions. The Supreme Court in Hewage v Grampian Health Board [2012] UKSC 37 held that there is no need to consider the burden of proof provisions when the Tribunal can make positive findings on the evidence one way or the other. Protected acts (issue 4(a))[335]The claimant argues that the following amount to protected acts: 1 Raising a concern of subtle racism by highlighting perceived microaggressions in the actions of Anne-Marie Coxon in an email sent on 29 November 2022. 2 Reporting actions of Anne-Marie Coxon and Peter Armstrong to the former chair, chief executive and workforce director on 8 November 2023 and current chief executive and Pamela Jamieson on 22 January 2024. 3 Raising the concern of racial discrimination in the actions of the staff of the outpatient clinic towards him to Nicole Hamlet verbally on 5 February 2024 and in writing on 13 February 2024. 4 Raising a grievance about systemic racism, originally submitted 10 August 2023.[336]The respondent concedes that the three latter actions amount to protected acts. The respondent does not accept that the e-mail of 29 November 2022 amounts to a protected act.[337]We considered this question in light of the decision of the EAT in the case of the Kokomane v Boots 2025 EAT 38, to which the respondent referred us in support of their submission that this email did not amount to a protected act. In Kokomane the EAT held that there was no requirement to mention that the conduct amounted to discrimination, the only requirement being that the facts asserted are capable in law of amounting to an act of discrimination. The Tribunal needs to consider how the information provided by the employee would be understood by the employer in context.[338]The respondent argued that the dispute between the claimant and Anne-Marie Coxon arose over her not sending out an email in a timely manner and not answering the phone when she was busy. The claimant sent an email criticising Anne-Marie Coxon. The respondent submitted that the information contained within the email is not a protected act. While it makes oblique reference to the Equality Act by mentioning micro-aggressive behaviour, the acts described are not capable of amounting to discrimination without more information. There is no hint of being treated less favourably on the grounds of race.[339]Ms Stobart further argued that the acts themselves do not amount to microaggressions. Examples of micro aggression are comments or actions that subtly or unconsciously express a prejudicial attitude toward a member of a marginalized group, and need to have some unconscious or conscious connection with a protected characteristic, which she argued was neither alleged nor present in the criticisms of Ms Coxon. The claimant goes on in his email to say that he hasn’t had the best experience of working with Ms Coxon and that he doesn’t know why. If he thought that Ms Coxon was treating him differently on the grounds of race he would have said it, she argued.[340]In this case the claimant did not make it explicit that he was making an allegation of race discrimination. He makes no reference to the Equality Act, no reference to race and no reference to less favourable treatment in the email. In this case the word microaggressions is the only word which is used to convey any reference to the claimant’s race or to a complaint about discrimination.[341]In his evidence Dr Armstrong was clear that when he read the word “microaggressions”, he had understood it to have racial connotations. He said that he believed he may have misunderstood its meaning and use by the claimant because he did not recognise that Ms Coxon would have displayed such behaviours. Having checked then, it was clear to him that this did relate to a complaint about treatment which was because of or related to the claimant’s race. It is however less clear what Ms Coxon understood by the term (since she was not asked directly).[342]On the key question, in context, the claimant does not reference being less favourably treated, and indeed suggests that he did not know why he was being treated as he was. The only hint that his treatment might relate to race is the use of the word “microaggressions”. This is a word however which, as we understand it, is only used in connection with allegations of discriminatory behaviour. We were of the view these allegations could be read as allegations that he had been less favourably treated because of race.[343]On balance, we came to the conclusion, not least because Dr Armstrong understood the racial connotations in the use of the word, that this was a protected act. Detriments (issue 4(b))[344]The claimant alleges that he was subjected to the following detriments because he did those protected acts: By Anne-Marie Coxon, Peter Armstrong and the first respondent for failing to reverse the action: 1 Withdrawal of support of education centre staff for the grand round from 7 December 2022. 2 The cessation of the education centre of sending out e-mail publicity for the grand round, from 7 December 2022. 3 The cessation of catering for the grand round, from 7 December 2022. 4 Removal of junior doctors from the grand round e-mails, which he alleges took effect from early 2023, and a separate educational meeting set up for them in July 2023. By Peter Armstrong, Andrew Russell, and the respondent who failed to reverse the action: 5 Setting up another hospital wide grand round behind his back which he alleges was from 15 August 2023. By Julie White and Pamela Jamieson: 6 Failing to reverse withdrawal of support from grand round from 22 January 2024. By Nicole Hamlet: 7 building a case against the claimant by accusing him of ‘demonstrating frustrated behaviour’. 8 directing him not to contact his line managers, Peter Girvan and Andrew Russell, isolating him from the existing reporting structure and assigning Heather Currie as his line manager; and by Heather Currie building a case against him. 9 With Gemma Zutic dismissing claimant’s complaints of racism and refusing to have complaints investigated. By the panel considering the claimant’s grievance on systemic racism (Mark Kelly and Pamela Jamieson): 10 by making recommendations that painted him in a bad light. 11 by the first/second/third respondent: 1 accepting the word of those against whom his grievance was raised; 2 deliberately misusing the policy to paint the claimant as having behaved in an unacceptable way; recommending that he reflect on his behaviour and apologise; 3 recommending the claimant undertake leadership training, communication and conflict resolution training; 4 submitting without proof that the claimant lacked insight into his behaviour and the perceptions of others; 5 by doing 1-4, building a groundwork for future false allegations against the claimant that would be readily accepted; 6 deliberately misusing the policy which resulted in the claimant being the only person with a direct negative pronouncement on his personal conduct in the absence of any credible evidence. Withdrawal of support for grand round (issue 4(a)(i), (ii) and (iii))[345]We considered the first three of these alleged detriments together because they all relate to the concerns about withdrawal of support for the grand round.[346]We have made findings in fact that support by the staff of the education centre, including sending out e-mail publicity and catering, was withdrawn following the claimant’s e-mail to Ms Coxon dated 29 November 2022 and taking effect from 7 December 2022.[347]The key question is of course whether Ms Coxon and Dr Armstrong withdrew support because the claimant had raised “a concern of subtle racism by highlighting the perceived microaggressions” in the e-mail of 29 November 2022.[348]Considering the terms of that e-mail, and in particular the tone, whether the claimant intended it or not, or appreciated how it would be received, we came to the clear view that the e-mail could only have been interpreted as a strong rebuke and reprimand of Ms Coxon. Whether the claimant realised it or not (and it may be that he did not appreciate at the time the extent to which the support for the grand round went beyond the usual support given to directorates), Ms Coxon as the centre manager was under no obligation to facilitate the grand round in the way that it did, even if it had been facilitated in that way prior to the claimant taking on the role of organising that lecture series.[349]Ms Coxon’s reply reveals just that stating as she does “I am very unhappy with the tone of your email and think it is very unfair”, explaining the circumstances and taking issue with the accuracy of his description of events. In evidence, she said that she believed it to be a very personal attack on her and the service she was leading, highlighting personal failings to all of her team, who were copied into the e-mail. She said that she was very upset that her actions had come across as microaggressive, and she did not accept the accuracy of the allegations made. Although she made a reference to the use of the term “microaggressions” not being the primary reason for her response, she said that the whole e-mail felt like a personal attack.[350]We conclude that the reason that Ms Coxon withdrew support for the grand round, including in regard to promotion and catering, was because of the tone of rebuke in the e-mail, and the inaccurate depiction of her actions, to her whole team, and not because of the reference to “microaggressions”.[351]Dr Armstrong also made clear immediately that in his view the e-mail was “unfair, harsh and overly critical” and that the claimant had unrealistic expectations of what the education centre was able to offer, and that the claimant’s experience was not reflective of the experience of others who used the education centre. The claimant replied, not focussing on the matter of the reference to microaggressions, but rather expressing concern about withdrawal of services in response to feedback, rather than looking at the concern raised.[352]It was only in a subsequent e-mail that Dr Armstrong referenced the fact that “being unfamiliar with the term microsaggression, that I googled it and was very surprised that you consider Anne-Marie to be microaggressive…”[353]We heard other explanations from Dr Armstrong about the withdrawal of catering. In particular, he already had concerns about that being mainly provided for doctors in a cost of living crisis when it was no longer being sponsored by drug companies as it had been prior to the pandemic. We heard that the catering for other events was not funded by the education centre.[354]Although we have accepted that, objectively, the e-mail can be categorised as a protected act given the subtle reference to concerns about race discrimination,and considered in context, we do not accept that the reason either Ms Coxon or Dr Armstrong withdrew services was because of that reference in the e-mail, but for these other reasons. Removal of junior doctors from the grand round e-mails (issue 4(b)(iv))[355]We conclude, based on our findings in fact, that the junior doctors where not actively “removed” from the grand round e-mails. We understood this to have been an unintended consequence of the transfer of the administration of the grand round from the education centre to the acute and diagnostics directorate. It was proposed that efforts be made to include them in the promotional distribution list.[356]The claimant was openly informed of the decision in July 2023 to have additional lectures for junior/middle grade doctors on Mondays at a time which did not clash with the grand round, so the expectation was they could attend both. Setting up another grand round (issue 4(b)(v))[357]We have made findings in fact that there was a misunderstanding regarding what had been agreed in regard to the hospital wide grand round lectures. We find that there was no intention to set up a separate hospital wide grand round “behind the claimant’s back”. Rather it was proposed that the hospital wide grand round was to be integrated with the medical directorate grand round, to the extent that hospital wide lectures would take place (in the Wednesday lunch-time slot) every two months. This is another interchange where the claimant has apparently misunderstood what is being proposed, although that is clear from the documents and evidence we have considered. We accordingly made no finding that the claimant suffered the detriment of another grand round being set up behind his back. Failing to reverse withdrawal of support for grand round (issue 4(b)(vi))[358]The claimant argues that, because he did a protected act of raising concerns to the former chair, chief executive and workforce director on 8 November 2023 and 22 January 2024, that was the reason they failed to reverse the decision to support the grand round.[359]We have made findings in fact that there was no reversal of the withdrawal of support for the ground. The question then we must consider is whether that was because the claimant had raised concerns about the actions of Ms Coxon and Dr Armstrong to senior management.[360]In regard to the catering in particular, Julie White explained in a subsequent e-mail after the meeting that it was unlikely to be reversed for budgetary reasons. There is nothing to indicate that there was any other reason for that decision.[361]The evidence we heard, including referral to the notes of the meeting, indicated that clarity about the situation with the grand round was required, and meetings with Dr Donaldson and the acute management team were to be arranged. There was no refusal to reverse, because the intention was that senior management needed to better understand the circumstances before making any decision.[362]It is however not clear what happened following that meeting, prior to the claimant lodging a grievance on 10 April 2024. While there was no reversal of the position to the claimant’s satisfaction, there is no evidence to support any conclusion that there was actually a refusal to reverse support beyond the expectations regarding catering, and that was because of budgetary constraints not because the claimant had complained about Ms Coxon and Dr Armstrong. Otherwise the matter was still being considered. Actions of Nicole Hamlet building a case against the claimant (issue 4(b)(vii))[363]The claimant claims he suffered detriment by Ms Hamlet “accusing him of frustrated behaviour” and it was because he had raised concerns about racial discrimination in the actions of the staff of the outpatient clinic. His particular concern relates to the fact that in the letter following the meeting from Ms Hamlet she stated that he should be mindful of his behaviour. While the claimant had agreed that he was frustrated, because he kept raising concerns and nothing changed, he did not believe that he had demonstrated frustration in the meeting, but believed he had remained calm and this was commented on by his companion Dr Gerrit. However, it is evident that his admitted frustration was apparent to Nicole Hamlet, even if he did not believe that to be so.[364]We conclude therefore that Nicole Hamlet raised this simply because she observed that the claimant had indeed exhibited frustrated behaviours in her presence. The claimant agreed he was frustrated, and contrary to his belief, that was clearly evident to others. There is no evidence to support any suggestion that the reason that Ms Hamlet raised this was anything more than an observation, and therefore there is no evidence to support the suggestion that she was “trying to build a case against him”. Further, there is no evidence to suggest any link between her commenting on that and him having raised concerns about race discrimination. On the contrary, the evidence indicates that she took his complaint very seriously. Actions of Nicole Hamlet in regard to line management (issue 4(b)(viii))[365]The claimant argues that he suffered detriment by being directed not to contact his line managers, Mr Girvan and Dr Russell, thereby isolating him from the existing reporting structure, and by assigning Dr Currie as his line manager.[366]There is a dispute about the facts here, because the claimant and his witness Dr Ames, who was present, recall that during the risk assessment meeting, the claimant was advised not to contact Mr Girvan or Dr Russell. There is no note to that effect in the record of the risk assessment meeting.[367]The risk assessment meeting does however record that the claimant was “happy to be assigned a point of contact if he can’t use his professional or line management structure. Currently feels comfortable to escalate his concerns to his line manager and beyond if required”. The claimant interpreted what was said that he was happy to work with his current line managers and that he would be assigned a point of contact only if he could not use that route, which is a reasonable interpretation of what is written, although it is potentially ambiguous.[368]We subsequently learned that Mr Girvan was promoted and replaced by Ms Dawn Smith as assistant general manager in March 2023, and that Dr Russell had asked not to deal with the claimant in a medical line management capacity following his interview for the grievance when took place in January 2024. The risk assessment meeting took place in February 2024 which is obviously after those two events. We accept then that it is entirely plausible that the claimant at least got the impression that he was no longer to deal with Mr Girvan or Dr Russell, even if that is not noted. What is apparent that the claimant was not told this formally which is unfortunate.[369]The claimant was made aware however that arrangements were made to identify a supportive point of contact, but the confusion was then compounded by Ms Hamlet describing Dr Currie as “confidential point of contact/professional line management”. This resulted in the claimant assuming that Dr Currie had been appointed as his line manager.[370]We had concerns about the lack of clarity regarding the line management structure and the way that it was, or was not, communicated. In particular of the witnesses who were asked about who their line manager was, some were of the view they had only one professional line manager, others thought they had in addition an operational line manager. It is not surprising that the claimant was confused.[371]This confusion is unfortunate and the lack of clarify in communications does not assist is resolving any misunderstandings or help the recipient understand the reasons for these decisions. Despite that, we found Ms Hamlet to be an impressive witness and accepted that she took her concerns about the claimant very seriously indeed and intended for this to be a supportive measure.[372]We conclude that these actions in regard to line management were not because the claimant had raised a complaint of race discrimination. Actions of Heather Currie building a case against him (issue 4(b)(viii)[373]We accept without hesitation the evidence of Heather Currie that she knew nothing of the claimant’s issues, or the reasons why she had been asked to be his confidential point of contact. Accordingly she had no knowledge that the claimant had done a protected act so she could not have done anything because of that act. Nicole Hamlet and Gemma Zutic refusing to have complaints investigated (issue 4(b)(ix))[374]We did not accept, given our findings in fact, that there was any refusal on the part of Nicole Hamlet or anyone else, to investigate the claimant’s complaints. While the complaints of racism were not upheld, the complaints were taken seriously and were investigated. In any event, there was no evidence to support any suggestion that what was done was because the claimant had done a protected act. Misuse of the grievance policy (issue 4(b)(x) and (xi))[375]The claimant has concerns about the outcome of his grievance investigation, in particular concerns about “painting him in a bad light” and making recommendations about training. He expressed concern that this resulted in him being the only person with a direct negative pronouncement on his personal conduct in the grievance outcome in the absence of any credible evidence. This, he argued, was thereby “building a groundwork for future false allegations against the claimant that would be readily accepted”.[376]We considered by reference to our findings in fact whether this had been established as a detriment or detriments. While it is the claimant’s view that these “painted him in a bad light”, we accept that the investigation established that the claimant had raised his voice to Ms Cannon. In regard to his concern that they had “chosen to accept the word of those against whom his grievance was raised”, reliance was placed on the statements of the witnesses. Some of those witnesses gave evidence in this Tribunal about the claimant’s conduct at the meeting in June 2021. We accepted the evidence of the witnesses, including for example Dr Moran whom we found to be a particularly impressive witness.[377]We have made findings in fact too that the grievance outcome made a recommendation that the claimant undertake leadership training, communication and conflict resolution training; that, essentially, the claimant lacked insight into his behaviour and the perception of others. The claimant suggests that there was no proof of this, but again we accepted the evidence heard by this Tribunal to that effect. We noted for example that the claimant confirmed in evidence that he had been frustrated during the meeting with Ms Hamlet although he did not believe that he had exhibited signs of frustration. It was clear however that he did, as detected by Ms Hamlet.[378]We do not accept that there was any deliberate misuse of the policy to paint the claimant as having behaved in an unacceptable way. We accepted that the investigation revealed concerns about the claimant’s behaviour. The Tribunal members in particular, acting as an industrial jury, were aware that a complainer who raises a grievance may themselves be criticised if the evidence supports that. Accordingly we accept that it was legitimate for these concerns to be raised although it was the claimant who had himself raised the grievance. Crucially and in any event, there was no evidence to support the contention that these comments were made because he had raised the grievance. Conclusion on the victimisation claim[379]Thus although the acts relied upon are accepted to be protected acts, and even where we have found that the claimant suffered the detriments alleged, there were no facts from which it could be inferred that the reason for the any of those actions was because the claimant had raised concerns or complaints or grievances about race discrimination. On the contrary, the reason why these actions were taken is apparent from the evidence, and was not because of those protected acts. Indirect race discrimination[380]The claimant also relies on section 19 of the Equality Act 2010, which states that “(1) a person(a) (A) discriminates against another(b) (B) if A applies to B a provision criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s. (2) for the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a protected characteristic of Bs if (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it be to be a proportionate means of achieving a legitimate aim”[381]This in essence means that a respondent will discriminate against a claimant where they apply a rule or policy equally to those who do not share the claimant’s protected characteristic and this puts or would put those who share the claimant’s protected characteristic at a particular disadvantage, as well as the claimant, that is it particularly disadvantages the claimant’s group; and the respondent cannot objectively justify the application of the policy or rule.[382]So the questions for consideration are(1) did the respondent apply a PCP;(2) was that PCP applied equally to those who do not share the claimant’s protected characteristic of race;(3) does or would the PCP put persons who share the claimant’s protected characteristic at a particular disadvantage;(4) does it put the claimant at that disadvantage;(5) can the respondent show that the PCP is a proportionate means of achieving a legitimate aim.[383]On the matter of the meaning of “provision, criterion or practice”, given that it must be applied by the employer to those who do not share the claimant’s protected characteristic, it must be of neutral application.[384]The terms “provision, criterion or practice” are not defined in the Equality Act but the EHRC code of practice at para.4.5 confirms that they are capable of covering a wide range of conduct to include any formal or informal policies, rules, practices, arrangements, criteria, conditions whether written or not.[385]In Isola v Transport for London 2020 ICR 1204, Lady Justice Simler emphasised that the words ‘provision, criterion or practice’ are not terms of art but ordinary English words which are broad and overlapping. However, Simler LJ also noted that it was significant that Parliament chose these words rather than ‘act’ or ‘decision’. The function of a PCP ‘is to identify what it is about the employer’s management of the employee or its operation’ that causes the particular disadvantage. Therefore, to test whether the PCP is discriminatory or not, it must be capable of being applied to others.[386]In terms of the burden of proof, while it is for the respondent to show that any PCP is objectively justifiable, it is for the claimant to first establish the other elements of the test. Provision, criterion or practice[387]The claimant relies on a number of actions which he asserts amount to PCPs.[388]The claimant argues that “the respondent kept Dr Rathnamalala in the position of clinical lead for education, training and rota (medicine) through which she participates regularly in staff recruitment, singlehandedly shortlists doctors for employment, decides training supervision and assessment, assigns trainees to supervisors, and is foundation programme director for junior doctors” (issue 5(a)(i)).[389]Leaving aside whether it has been established that these are all roles undertaken by Dr Rathnamalala, it is quite clear that this is not a PCP because it is not applied to all, it is not of neutral application and it is not capable of being applied to others. As Ms Stobart argued, the fact that an employee holds a role and continues in that role is not a PCP.[390]Likewise, the assertion that “the respondent kept Peter Armstrong in the role of director of medical education” (issue 5(a)(ii)) is not a PCP because it is not capable of being applied to others.[391]The claimant sets out at issue 5(d)(i) to (v) the particular disadvantage which he relies on, which cannot therefore be said to be discriminatory as required by s.19.[392]In any event the particular disadvantage referenced which relates primarily to less favourable treatment in recruitment, training and educational roles, is not disadvantage which the claimant himself has experienced. Workforce policies[393]Turning to the claimant’s assertion in regard to the application of the bullying and harassment, grievance and workforce policies investigation process which he says “prevent ethnic minority staff who raise grievances about racism from having access to the evidence” (issue 5(a)(iv)), the respondent accepts that the application of these policies to all staff is a PCP.[394]Ms Stobart does not however accept the second part in that it identifies the alleged mischief that the claimant says is caused by the application of the policies, and that this would be a circular argument if that constituted a PCP. We agreed with that analysis.[395]Although reference is made to all these policies, we understood the claimant to be complaining in particular about the information sharing protocol and the guidance on redaction, and we accept that their application amounts to a PCP.[396]We have understood that the particular disadvantage which is alleged as a result of the application of that PCP to all staff is that ethnic minority staff who are more likely to raise grievances about racism are prevented from having access to the evidence. We understand the argument to be that ethnic minority staff are more likely to be relying on these policies in regard to complaints under the bullying and harassment policies and/or grievance policy, and therefore that the policy relating to access to evidence/redaction disproportionately disadvantages that group.[397]Although the claimant frames it in terms of black people (ethnic minorities) being more likely to raise concerns about racism, the focus must be on the proportions of staff in the overall pool who make complaints under these policies. It cannot be said that the PCP applies only to those who complain about “racism” (or even discrimination). We have accordingly analysed this question on the basis of that formulation.[398]We considered whether the PCP identified puts (or would put) persons who share the claimant’s protected characteristic at a particular disadvantage (3) and the question of the appropriate pool for comparison.[399]The respondent took issue with the fact that, as they saw it, the claimant was arguing that ethnic minority staff were disproportionately disadvantaged, while the claimant identifies as black Nigerian. As we understood it, the claimant was arguing that ethnic minority staff, which includes black people, were more likely to experience racism relative to white people, and therefore more likely to make complaints under the policies.[400]Reference was made during the hearing to the respondent’s statistics relating to the “ethnicity” of those staff who made complaints of bullying and harassment and grievances over the last five years, which was presented in absolute numbers with no proportions relative to overall staff numbers. In any event given the small numbers those statistics cannot be said to be statistically significant.[401]Although reference was thus made to the statistics in Dumfries and Galloway Health Board, we did not understand the claimant to be relying on the statistics for Dumfries and Galloway Health Board. We accepted that the pool is wider than that and that it encompasses all those who might rely on the NHS Scotland workforce policies, that is all NHS workers (and potentially beyond, given the policies protect workers and others who are not NHS staff).[402]We understood the claimant to rely the 2024 Scottish Race Equality Forum 403. survey to establish disproportionate disadvantage. That survey reported that they received 715 responses. In terms of ethnicity, 278 respondents identified as nonwhite, with Asians making up the largest group at 27%. Other ethnic groups included mixed (4%), African (3%), and other backgrounds (4%). Twenty respondents preferred not to disclose their ethnicity. 64% reported that they had either experienced (41%) or witnessed (23%) incidents of racism. Only 11% of those affected took the step to formally raise a complaint. Among Asian doctors 44% reported experiencing racism, and 24% witnessed it. In contrast, the majority of white doctors (67%) stated they have never encountered or witnessed racism, compared to just 36% of all non-white doctors and 33% of Asian doctors. While 26% of ethnic minority respondents have raised a grievance at work, only 11% of these were about race-related issues. 10% of white respondents raised a grievance at work, 1% of which were about race-related issues.[404]While we accept that this supports the contention that ethnic minority staff are more likely to make complaints about racism, we do not accept that this survey can be relied on to shows that ethnic minority staff are more likely to make complaints under the bullying and harassment and grievance policies, both of which are subject to the information sharing protocol. The difficulty therefore for the claimant is that these statistics are not sufficient to be relied on to establish disparate impact. If the focus was only on complaints of racism, the position may well be different. But the PCP as articulated (the application of the bullying and harassment, the grievance and the workforce policies investigation policies) covers all complaints under these policies, and there were no reliable statistics presented to support the contention that a higher proportion of black and/or ethnic minority staff than white staff rely on these policies to bring forward complaints.[405]We find therefore that the claimant has failed to establish that ethnic minority staff (including black staff) are disproportionately disadvantaged by a PCP under the information sharing protocol which withholds certain information from complainers and which requires redaction of evidence to complainers.[406]Even assuming that the claimant could establish disproportionate disadvantage, the claimant would in any event still need to show that he personally is disadvantaged (4). The claimant argues that he personally was disadvantaged, because the practice was sustained; he was personally censured and there was a lack of accountability for wrongdoers. It is not clear however that any link has been established between these matters and the practice of redaction in regard to complainants, given as the respondent argued, this did not alter the outcome. However, notwithstanding what was argued on their behalf, as we understood it, the respondent did accept that complainants were at least potentially disadvantaged by the redaction policy (although that applied to all complainants, who are not established to be disproportionately black, or from ethnic minorities).[407]With regard to objective justification, the claimant argued that the respondent has not shown a legitimate aim nor proportionate means, in light of the fact that such information sharing/redaction policies were not relied on under previous policies implemented by the respondent (and other health boards in Scotland) and are not relied on in other health boards south of the border.[408]The respondent argued the Once for Scotland policies are national policies agreed with Scottish Government, staffside and employers. The respondent raised concerns over the level of redaction which in their view affects all complainers equally. The respondent’s concern is that the levels of redaction can affect confidence in the outcome, but does not accept that the fact of redaction after the decision is made has any impact on the outcome. They argue that it is legitimate for the respondent to apply policies as per the Once for Scotland policies as directed by Scottish Government whilst raising issues and having discussion with Scottish Government about improving those policies.[409]While we do not require to determine the objective justification question, we observe that the fact, as the claimant argued, there would appear to be feasible alternatives to this practice, by reference to comparator NHS England policies, and the fact that prior to the introduction of these policies in Scotland, they would hold face to face hearings with complainants and alleged perpetrators able to access all evidence.[410]We noted that the claimant asserted further disadvantage, namely that “these policies make it easy for a person who raises a concern of race discrimination to be victimised, have their concerns dismissed and be bullied and harassed without giving the victim access to the evidence”. Aside from the difficulty of establishing disproportionate disadvantage, we agreed with the respondent that there is no evidence to support the assertion that a person who raises a concern of race discrimination will be victimised (and we have found that the claimant was not victimised for doing so); there is no evidence that their claims will be dismissed (and here quite the contrary, the claimant’s claims were investigated thoroughly, notwithstanding the outcome); and there is no evidence that a person who raises a complaint of race discrimination is more likely to be bullied or harassed.[411]Accordingly the claimant’s claim of indirect discrimination fails. We do however record here our concerns with the operation of these policies, as has been identified by the respondent, in regard to the redaction policy and the appropriateness of claims of race discrimination being pursued under the bullying and harassment policy and/or grievance policy. Although we were referred to it during the hearing, we noted the respondent’s position that the equality, diversity and inclusion policy had not, at the time of these events at least, been launched and it may be that this latter anomaly at least has been addressed. Constructive dismissal[412]The claimant in this case claims breach of contract supporting a claim for unfair constructive dismissal. To succeed, the claimant must show that any breach is a fundamental breach going to the root of the contract, that is it is not a minor breach.[413]However, the claimant in this case alleges a breach of the implied term of mutual trust and confidence. When a breach of the mutual trust and confidence term is found, such a breach is “inevitably fundamental” (Morrow v Safeway Stores plc 2002 IRLR 9 EAT).[414]When considering whether there has been a breach of the implied term of term of trust and confidence, the requirement is to consider whether the respondent conducted itself in a matter which was calculated, or if not, which was likely, to destroy or seriously damage the relationship of trust and confidence between the employer and the employee, where there was no proper and reasonable cause for the respondent’s behaviour (Mahmud v Bank of Credit and Commerce International SA 1997 IRLR 462 HL).[415]It might be that an individual incident is not sufficient to breach the implied term, but a series of incidents taken together and considered cumulatively could be sufficient to amount of a breach, where there was a last straw which, although minor, contributed to the overall breach (Lewis v Motorworld Garages Ltd 1985 IRLR 465 CA; Waltham Forest v Omilaju 2004 EWCA Civ 1493). The claimant must have resigned in response to the breach, and not for another reason (Western Excavating Ltd v Sharp 1978 IRLR 27).[416]We understood that the claimant relies on a series of incidents and a last straw which he says cumulatively amounted to a fundamental breach of contract. He relies on the acts of discrimination considered above and in general a refusal to address his grievances; the creation of a hostile work environment and failure to ensure a safe workplace and to treat him equitably; a deliberate refusal to address systemic racism in the organisation; taking actions to victimise him and “set traps” for him. The question whether such actions were perpetrated by the first respondent is identified as issue 7(a).[417]In the list of issues at 7(b), the claimant also identifies the following as an issue for determination by the Tribunal: “Did the first, second and third respondent issue a grievance outcome on 30 October 2024, 14 months after submission of the grievance and fail to acknowledge the existence of systemic racism”?[418]Although this was not discussed during submissions, it is apparent that only the first respondent can be liable for constructive dismissal, and not the second and third respondents as individuals.[419]With regard to the conduct upon which the claimant relies, we have considered above the claimant’s specific discrimination claims and we have found that the claims which succeed are the prescription issue claim, and sustaining a discriminatory practice, which we have found amount to direct race discrimination. We have found that one incident related to the prescription issue amounts to unlawful harassment. We have also found that the practice of refusing or failing to allow the claimant to put his name in the consultant field of biologic prescriptions continued until he resigned. This would inevitably include a failure to treat him equitably in regard to the prescription issue.[420]We do not accept however, based on the evidence that we heard, and as discussed above, that the respondent otherwise refused to address his grievance; we have not found that there was systemic racism in the organisation; we do not therefore accept that the respondent created a hostile work environment or failed to ensure a safe workplace; we do not accept that the claimant was victimised and we do not accept that traps were set for him.[421]Thus when considering whether there was a breach of trust and confidence, we focus on the prescriptions issue and the way that it was dealt with.[422]We have found above that the claimant raised concerns about the practice in relation to prescriptions first to Ms Cannon, then to Dr Russell and Dr Drever, who in turn raised it with the rheumatology team, then to Mr Girvan, then he sought to do so through the bullying and harassment policy (as he was advised), then through a review of the outcome of that complaint, then by lodging a grievance which related to systemic racism but was primarily about the prescription issue and the way that it was dealt with. Finally, he received an outcome to his grievance which was only partially upheld and this was the last straw for the claimant. The outcome of that grievance was that the claimant had been subjected to unprofessional and disrespectful treatment and that his name should have been put in the consultant field as he requested. Although his complaint about systemic race discrimination was not upheld, we have found that he was subject to race discrimination (although not that there was systemic racism in the organisation). There was no acknowledgement in the outcome that he was subjected to race discrimination. There was no reversal of the practice in relation to the prescriptions. This is a series of incidents, culminating in the last straw, which contributed to the overall breach. Accordingly we find that there was a breach of the implied term of mutual trust and confidence entitling the claimant to resign and claim constructive dismissal.[423]As we understood it, the respondent accepted, if a breach of contract were to be established, that the claimant resigned in response to the breach; that he did not affirm the contract and the respondent does not argue that dismissal was otherwise fair.[424]Accordingly we find that the claimant was unfairly constructively dismissed. Wrongful dismissal (breach of contract: failure to pay notice pay)[425]The claimant claims that he is entitled to claim wrongful dismissal and breach of contract because of the respondent’s failure to pay three months’ notice after the claimant’s resignation.[426]We accepted the respondent’s submission that given the fact that the claimant resigned without giving notice, he was not entitled to be paid notice pay.[427]This is course is quite separate to the finding that the claimant was constructively dismissed and any consequent award. Failure to provide statement of terms and conditions[428]The claimant argues that the first respondent failed to provide the claimant with a contract when he began his permanent full-time role as a consultant rheumatologist in September 2022.[429]Section 1(1) of the Employment Rights Act 1996 states that a worker shall be given a written statement of particulars of employment when they begin employment. Section 1(3) and (4) sets out the particulars the statement should contain.[430]Section 4(1) states that where there is a change in any of the specified matters particulars of which are required by section 1, the employer shall give to the worker a written statement containing particulars of the change.[431]The respondent argued as follows. The contract for consultants is the same for all NHS Scotland consultants and is held on the EES system. The claimant knew that, because he was able to contrast the fact that on his locum terms and conditions he had one month’s notice whereas on his substantive consultant contract he has three months’ notice. There was no dubiety as to his terms and conditions. Section 4(4) ERA states that the worker or employee can be referred to the provision of some other document which is reasonably accessible. The NHS consultant contract is reasonably accessible. When the claimant became a substantive consultant in September 2022 he did not raise this issue until bringing this claim. It is inconceivable that he did not receive notification via EES. He has chosen to share the EES page where his status was updated and so it is highly unlikely that an on-line system would fail to notify him of his change of status.[432]The claimant was issued with a statement of terms at the beginning of his employment. The claimant’s position was made permanent in September 2022. The evidence we heard (from Pamela Jamieson) was that the claimant would have received an e-mail through an updating to the EES system. Documents were lodged showing that the EES system had been updated. No copy of any e-mail to the claimant was however was lodged. As we understood it, this was because it was an automated system. We understood that the only change in particulars was from a fixed term to a permanent contract. Otherwise, as we understood it, the claimant’s terms and conditions were the same as all consultants employed by the NHS in Scotland and were easily accessible on the internet (which as we understood it is where the claimant obtained a copy of the consultant’s terms and conditions to lodge to support his other claims). To the extent that there was a requirement that the claimant be informed of changes, we considered that it was more likely than not that the claimant had received an e-mail in the automated system alerting him to the change in his contractual terms, not least because he did not raise the issue at the time. This claim is therefore not well-founded and is dismissed. Time bar[433]There is no requirement for us to consider this question in respect of the claims which we have found do not in any event succeed. Further, the respondent did not argue that the claim for constructive dismissal was time barred.[434]With regard to the claims under the Equality Act 2010, section 123 states that a complaint may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates; or such other period as the tribunal considers is just and equitable. For the purposes of that section, conduct extending over a period is to be treated as done at the end of that period.[435]Focussing on the prescription issue, the respondent argued that the act complained of took place up until March 2021, which was when the practice changed to putting “department of rheumatology” which the respondent argues cannot constitute less favourable treatment; and is therefore not an act of discrimination and the alleged act of discrimination is time barred.[436]The claimant argues that the discrimination complained of was a continuing act. The discrimination complained of was essentially not putting his name in the consultant box (through the use of department of rheumatology or otherwise). We have found that to be an act of discrimination. As the claimant pointed out, that practice started in or around 2020, and his name was still not put in the consultant field of prescriptions when he resigned, and after the outcome of the grievance.[437]We accept that in regard to the refusal or failure to include his name in the consultant field of biologic prescriptions this was a continuing act which continued until he resigned. This was conduct extending over a period and for time bar purposes is to be treated as done at the end of that period. Given that the claimant lodged a claim before he resigned and another shortly after his resignation, we find that this claim is not time barred.[438]With regard to the complaint relating to harassment in regard to the encounter on 11 February 2021, that complaint will be in time if it was either lodged within three months of the date of the complaint, or within such other period as we think just and equitable. In all the circumstances of this case, we conclude that it is just and equitable to accept the claim had been presented in time. This is because although the harassment did not continue throughout the claimant’s employment, the practice to which the incident relates did continue throughout the claimant’s employment until the date that he resigned. Throughout that time, as discussed above, the claimant continued to complain about his treatment. In those circumstances, we conclude that it is just and equitable that the claim should be accepted as in time at the date lodged.
Conclusion
[439]The claimant’s claims of direct race discrimination and harassment succeed to the extent set out above. The claimant has been unfairly constructively dismissed. All other claims are dismissed. This case should now be listed for a further final hearing to determine remedy.