Nurse suffered race discrimination finds tribunal

A senior nurse in the north of England has won her race discrimination claim against NHS England at an employment tribunal.

Ms Cox, who is black, launched the claim after being excluded from away days and recruitment processes by her manager Ms Paxton, who was at the time head of continuing healthcare in the North. Cox also raised conflict of interest issues over appointments to a care panel.

Cox began her £55,000-a-year job as continuing healthcare manager in 2017. In 2018 she was made the regional lead for the ethnic minority nurses’ advisory group, a role that entailed attending events and speaking about racial inequality in the workplace. Part of this role entailed challenging management decisions where appropriate. However, found the tribunal, Paxton did not like being challenged and as a result excluded Cox from several key events and processes.

While Cox was recovering from knee replacement surgery in 2019, Paxton arranged a team away day and would not allow the nurse to attend “under any circumstances”, the tribunal heard.

A second away day coincided with an ethnic minority nurses’ conference. Paxton claimed in her evidence that a scheduling error had caused the clash and that staff diaries “had not been checked” so she was not aware of the conference. This explanation was “inconceivable” found the tribunal.

There was also a whistleblowing element to the case as Cox had raised concerns over conflict of interest over the placement of nurses on independent review panels (IRPs). These decide whether vulnerable and elderly patients should pay for their own healthcare needs outside of hospital. Cox told Paxton that her team members sitting on IRPs was a breach of independence and legal obligations. The tribunal accepted this conversation constituted a protected disclosure for the purposes of the whistleblowing complaint.

Some employees had declined to sit on the panels due to a conflict but Paxton had dismissed the claimant’s concern. When another employee queried the practice, Paxton told them that she had “cleared it with legal”. But according to the tribunal there was no evidence Paxton had done this.

Cox said that Paxton had begun to undermine her role and subjecting her to harassment as a result of this.

Attempts at mediation in November 2019 were unsuccessful. During the meeting Cox made
statements adding up to a protected act for the purposes of her victimisation complaint and also a protected disclosure for the purposes of the whistleblowing complaint.

In early 2020 it appeared that Paxton was also excluding Cox from recruitment processes she should have been involved in. The tribunal rejected Paxton’s explanation of this as being because of confidentiality around pay, saying it did not have the “ring of truth” about it.

Grievance

A subsequent grievance investigation did not address the underlying issue of race discrimination which the claimant had specifically raised, the tribunal found. A grievance appeal probe spotted bad behaviour towards Cox but did not address why this poor behaviour had taken place.

Paxton told the tribunal her actions were not motivated by racial bias. She said: “I absolutely deny that my behaviour towards the claimant changed as a result of her raising this issue with me or that she was subjected to any detrimental behaviour from me as a result,” she said.

A spokesman for NHS England said it did not want to comment about any individuals at this stage.

He added: ‘No one should ever experience racism, discrimination or prejudice at work and NHS England will fully consider the learning from the employment tribunal.’

The tribunal decided that Paxton had failed to provide any credible explanations for the claimant’s treatment. It agreed with Cox that Paxton would not have treated a white employee in the same way and would not have had a grievance outcome “that was riddled with such deficiencies”. The judge agreed that Cox’s treatment was because of race.

The level of compensation is to be decided at a future remedy hearing.

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