An ophthalmic surgeon who was told she must be ‘bare below the elbows’ has lost her claim for religious discrimination and harassment after a tribunal judge ruled that ‘not everything that happens to a Muslim worker will be related to religion’.
The claimant Miss Butt is employed by Bradford Teaching Hospitals NHS Foundation Trust as a consultant ophthalmologist but worked one day a week at nearby Airedale General Hospital, part of Airedale NHS Foundation Trust, the respondent.
In December 2022, an altercation took place after a nursing director asked why Butt did not have her sleeves rolled up in accordance with the trust’s mandatory policy.
Airedale’s infection prevention and control policy states that all staff entering or working within clinical areas and/or providing direct patient care are required to be “bare below the elbows” to facilitate effective hand hygiene.
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The policy recognises specific needs of staff on “cultural, religious or disability grounds” and states that “disposable sleeves are available”.
Butt, who wears a hijab and covers up her body apart from her hands, feet and face in public, believed that she had been “racially profiled and bullied” into rolling her sleeves up.
She had been supervising a junior colleague and left the operating theatre to go to the bathroom and make a telephone call. She walked through the anaesthetic room and into a corridor linking various operating theatres in the department.
As Butt left the anaesthetic room she rolled down her sleeves and by the time she was in the corridor, her sleeves were fully down.
In her witness statement, Butt said that Ms Hytch, divisional director of nursing for surgery and diagnostics, had loudly stated: “Excuse me, oi! Excuse me, yes, I was talking to you. Why are your sleeves not rolled above the elbows?”
The tribunal heard that the Care Quality Commission was inspecting the department on the day in question and that Hytch was visiting the theatre area in preparation.
The claimant described Hytch as shouting in the corridor and said that she had firmly and calmly explained that her sleeves were not rolled up because she was not in a clinical area. Hytch continued to demand that she rolled them up, and then asked who Butt was and said she would write her name down. In Hytch’s view, both the anaesthetic room and the corridor were clinical areas.
Hytch’s evidence described how she had said “excuse me” to get Butt’s attention in a slightly raised voice because the claimant was using her mobile phone and she was unable to make eye contact.
Hytch said that Butt interjected with “Don’t you know who I am?” and said she had no intention of rolling up her long sleeves. Hytch described the claimant as angry, talking loudly and rapidly. She said Butt said she was not performing surgery and was supervising, and that that was why she had not rolled up her sleeves.
The tribunal also heard from theatre matron Ms Herpe, who was with Hytch. She described how Butt had become “wild” in her excessive reaction. She said Butt was pointing when she was shouting, and that was why she noticed Butt’s nails, which were too long, also contravening policy.
According to Herpe, as the claimant was walking away Herpe had said that the claimant needed to be bare below the elbows and her nails needed to be short. The claimant replied that she would not be cutting her nails.
The claimant was very upset by the incident and felt unable to continue at work and cancelled her operations for the day so she could go home.
Butt complained about the altercation and, despite initially saying she would be happy to resolve the matter informally, she made a formal complaint. This resulted in an investigation by the NHS trust which in May 2023 concluded that the request for Butt to be bare below the elbows was not racially motivated but was a request made to ensure adherence to policies.
It was, however, recognised that the incident had been stressful for the claimant, and it was disappointing that the discussion had escalated so quickly.
At the employment tribunal, Butt’s counsel, Rosie Kight, submitted that the fact those involved knew the claimant to be Muslim, the manner of Hytch’s challenge regarding the sleeves, and the fact that Hytch had accepted she may have unconscious bias against Muslims should lead the tribunal to conclude that Butt’s treatment was related to religion.
The judgment said: “We do not accept her submissions on this point. Not everything that happens in the workplace to a Muslim worker will be related to religion, and the claimant’s evidence was that religion was not discussed on the day.
“Rather, the claimant gave another reason at the time for not rolling her sleeves up – that she believed she was in a non-clinical area of the hospital.
“The fact that Mrs Hytch was willing to acknowledge that she may have unconscious bias is, in our view, to her credit. We all have unconscious biases and it is, in our view, more likely that those who do not recognise their potential unconscious biases or are not willing to acknowledge that they may have them, who are more likely to be influenced by them.
“In relation to the manner of Mrs Hytch’s challenge of the claimant, it cannot in our view be said that it was discriminatory. We accept the respondent’s evidence that the initial challenge was polite and find that the reason matters subsequently became heated was because of the claimant’s response to being challenged, combined with Mrs Hytch’s response to the claimant not doing as she was asked.”
The tribunal found that the claims for direct discrimination and harassment on grounds of religion or belief were not well founded and were dismissed.
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