Employee wins case of victimization after making complaint of discrimination (Ms E Osei v Basildon and Thurrock University Hospital NHS Trust, ET)

In the case of Ms E Osei v Basildon and Thurrock University Hospital NHS Trust ET/3201328/2017 & 3200136/2018, the Claimant was a nurse of Black African descent who brought a claim in the Employment Tribunal for amongst other complaints, race discrimination. She was not successful in any of the grounds of complaint except that of victimization.

The facts in Ms E Osei v Basildon and Thurrock University Hospital NHS Trust

The Clamant was employed by the Respondent from 11 January 2016 as a nurse working in the Respondent’s Recovery Unit, caring for patients who were recovering after surgery and anesthesia as well as intensive care patients. The Recovery Unit had staff from a diverse racial background: black African, white and Indian.

After about six months of working in the Unit, the Claimant made allegations of race discrimination against her managers although these specific claims were withdrawn by the Claimant at the Employment Tribunal (ET) hearing.

On 5 June 2017, a 93-year-old patient who had undergone surgery in the care of Dr Sharma, an anaesthetist, was admitted and was allocated to the Claimant for post-surgery recovery.  The Claimant became concerned at the patient’s low blood pressure and texted Dr Sharma to this effect. Dr Sharma considered that the patient was ready to be discharged from the Recovery Unit to the ward as his blood pressure had been low before the operation. No witnesses were able to confirm the exchange between Dr Sharma and the Claimant but the latter claimed that the former had said “I am not here to make you happy”. According to the Claimant, Dr Sharma then telephoned the ward to explain why he felt a transfer was acceptable in this case; he conveyed the concerns of the Claimant but then uttered according to the Claimant, to the person at the other end of the phone: “We clinicians treat a patient as a whole and not just numbers. Monkeys treat numbers and we treat patients”.

On that day, 5 June 2017, the Claimant emailed the Sister of the ward and complained that Dr Sharma had been referring in a derogatory way to her via this phone call. On the morning of 6 June 2017, Dr Sharma discovered that his advice had been contradicted and the patient in question had been given fluids to improve his blood pressure and that this had caused complications.

The Claimant’s emails were forwarded to Mrs Archer, HR Resources manager, who organized an informal meeting. At that meeting, Dr Sharma apologized to the Claimant explaining that the comment about the monkey had been referring to an Indian parable and had had nothing to do with the Claimant’s race. The Claimant refused to accept this apology and after further pressure from another member of staff at the hospital, she refused a written apology from Dr Sharma as well. The Claimant also reported that she had been told to reflect on her own behaviour.

The Claimant then submitted a formal grievance against Dr Sharma in July 2017 and a case investigator was appointed. The Claimant was off work for 18 days in August due to stress caused by raising the grievance. On 11 September 2017, the Claimant was invited to a sickness review meeting and it was noted that she had not been attending working for that period of time. She was offered a transfer but she refused. The meeting culminated with her being issued a Stage 1 written warning concerning her attendance levels.

Following the meeting, the Claimant wrote to the Sister of her ward, explaining that she felt that she had been unfairly treated and that the Respondent at the meeting had failed to give consideration to her medical reports of stress causing her absences. An incident subsequently occurred, involving the Claimant being chided for taking an overlong tea break. On 17 September 2017, the Claimant had a meeting with representatives of the Respondent, who discussed other employment on grounds of health and suggested a transfer. The Claimant agreed to this and joined the Urology department. However, her time here did not go well and she was criticised by other staff on that ward for her vocal behaviour.

The Claimant complained and had a meeting on 29 September 2017 with the Respondent to discuss further redeployment possibilities. The Claimant chose to work in theatre recovery but emphasized that she considered that she had done nothing wrong in the first place to merit such moves. The Claimant was not given the opportunity to work in her chosen area and on 18 October 2017, she resigned claiming constructive dismissal and claiming that she had been subject to bullying.

Meanwhile, on 22 December 2017, Dr Sharma was invited to a disciplinary hearing to respond to allegations of the nature of the language that he used. As a result of this hearing, Dr Sharma was informed that the allegations were upheld against him and he was given a final written warning.

Decision of the Employment Tribunal (ET)

The ET considered the various heads of claim that the Claimant had brought and the legal test required to meet them. Her victimization complaint had been brought out of time.

The ET dismissed her complaints of direct race discrimination and harassment and constructive unfair dismissal but they did allow the claim of victimization. In terms of the latter the ET considered that the Respondent’s behaviour towards the Claimant was influenced by the fact that she had made a complaint about Dr Sharma.

Our solicitors’ views on the case of in Ms E Osei v Basildon and Thurrock University Hospital NHS Trust

Caroline Lewis, specialist employment lawyer at Redmans Solicitors, made the following comment on the case: “An employer has a responsibility to ensure that a person is not victimised, or treated unfavourably, because he or she has made a complaint or supported another person to make a complaint. This is the case even if that complaint is not upheld either by an organisation’s internal mechanism or at a Tribunal”.

The decision of the Employment Tribunal in Ms E Osei v Basildon and Thurrock University Hospital NHS Trust 3201328/2017 & 3200136/2018 can be found here.