In a recent Employment Tribunal brought by Michelle Cox, a senior Black nurse , the Tribunal noted
"extraordinarily, in the course of giving evidence, (the line manager) resorted to an example to illustrate a point about the contents of meeting notes, by referencing the claimant eating bananas. There was nothing about eating, or bananas, in the minutes referred to and the choice of eating bananas as an example related to the claimant was not explained. The Tribunal considered this to be a shockingly poor example to give, accepting the claimant’s submissions that it is a common metaphor and/or pejorative term used in relation to the claimant’s racial group and illuminative of the possibility of subconscious discrimination."(Para 120)
Michelle Cox was a nurse manager with impeccable NHS service, who raised concerns (which the Tribunal confirmed were accurate) about her own treatment at work and about a serious breach of legal obligations in respect of independent review panels. She was also was active in promoting NHS race equality regionally and nationally.
It gives me no pleasure to write about yet another dismal failure to accept that racism might be a factor in the detrimental treatment of an NHS staff member.
In particular I have grown tired of writing about organisations who insist that staff have to show that the treatment they have been subjected to was deliberate race discrimination or harassment - even when those staff produce convincing evidence of poor treatment for which no credible explanation other than racism exists. The “requirement” to show that discrimination is intentional if it is to be proven is a common, deliberate and unwarranted obstacle to fair treatment which Courts have grown increasingly critical of.
It has happened again. This Employment Tribunal https://www.gov.uk/employment-tribunal-decisions/ms-a-cox-v-nhs-commissioning-board-operating-as-nhs-england-slash-nhs-improvement-2415350-slash-2020-and-2401365-slash-2021 heard how a sustained pattern of discriminatory behaviour undermined and marginalised Michelle Cox in ways for which there was no credible explanation other than racism. Indeed, the Tribunal reported that Michelle Cox herself pointed out:
"that the investigation had failed to consider discrimination under race, equality or inclusion, that her evidence had not been considered and that the investigation had diverted away from the questions she had raised. The claimant also points out that “The use of the words ‘not deliberate and not intentional’ throughout the report would indicate that the investigation panel are not aware that an act does not have to be deliberate or require a motive to be discriminatory, it is the impact that counts” (para 49)
The Tribunal noted that establishing discrimination does not require to show a motive or show the discrimination was deliberate:
“Under cross-examination, (the NHS England appeal hearing chair) accepted that discrimination is rarely admitted and thus the function of the appeal was to see what inferences could be drawn. The Tribunal found that the appeal identified a number of instances of what it variously described as “poor” behaviour towards the claimant yet failed to address why this poor behaviour had taken place nor was the respondent able to explain why this was somehow unimportant" (Para 59)
The Tribunal was not impressed. It pointed out:
"Very little direct discrimination is overt or even deliberate. In Anya v University of Oxford [2001] IRLR 377 CA guidance was given that Tribunals shall look for indicators from a time before or after the particular act which may demonstrate that an ostensibly fair-minded decision was or was not tainted by bias, in Anya racial bias. Discriminatory factors will, in general, emerge not from the act in question but from the surrounding circumstances and the previous history." (Para 72). https://www.casemine.com/judgement/uk/5a8ff7a160d03e7f57eb080c
It noted that:
"the Tribunal was asked to step back to see what was submitted to be: a repeated pattern of incorrect behaviour by the claimant’s line manager towards the clamant and no one else; that such behaviour was for the claimed prohibited reasons, namely direct race discrimination harassment related to race, victimisation and whistleblowing; this was a case founded on sub-conscious bias; it was behaviour for which the respondent would be liable given its failure" (Para 94)
The Tribunal then said it:
"drew an inference, from the material before it, that by not adopting a critical approach, the grievance panel did not want to find any discrimination, harassment or other unlawful behaviour and did not properly apply its mind to such matters, instead setting a high bar which would never be reached – see paragraph 47 above". (Para 108)
The Tribunal was equally scathing about the subsequent internal appeal:
"This approach to the claimant’s grievance continued in the grievance appeal process where the Tribunal found that the appeal outcome failed to uphold the Claimant’s grievance despite the underlying findings made. The problem arose because the appeal looked at events individually and did not consider cumulatively whether there was a pattern of behaviour which required examination. It did not consider the issue of discrimination and/or whether there might be an underlying reason for the matters complained of if those matters were taken together. It did not ask why things happened, nor did it question or probe what it was told." (Para 109)
The Tribunal regarded the failing of the grievance hearing and the appeal hearing to be further evidence of a pattern of discrimination:
"Despite the claimant’s grievance about (her line manager’s) conduct, the Tribunal considered that the respondent’s grievance outcome and appeal outcome avoided addressing the reasons for (her) behaviour towards the claimant. They did not draw inferences from the evidence gathered despite, as the Tribunal found there, were many aspects from which inferences could be drawn. In addition, by setting a high bar of needing to see ‘deliberate’ discrimination, the respondent failed to consider the possibility of subconscious discrimination at all" (Para 117)
The Tribunal concluded that
"(the line manager) developed an animus towards the claimant which led her to operate in such a way that her actions made life difficult for the claimant and compromised the claimant’s ability to do her job. She subconsciously intended to exclude the claimant at every opportunity."(Para 132)
The law
There is no evidence that the thought processes of HR or senior managers understood that Michelle Cox did not have to demonstrate managers were racially motivated with any intention to discriminate. It is unclear whether NHS England’s legal team understood a crucial legal point that was crystal clear, unanimously, to the Tribunal.
If it is established that there is an instance of negative conduct which could be assigned to race discrimination, and the employer cannot provide a reasonable and adequate explanation that this was not due to discrimination, then the court or tribunal may draw an inference that the negative conduct was caused by discrimination (s.136 Equality Act 2010).
It is well established legal precedent that there is no need for a claimant to prove there is discriminatory intention behind acts and omissions. It is not necessary to show that the person(s) alleged to have discriminated did so consciously since “unconscious” discrimination is also prohibited. It might have been helpful for the internal appeal panel (which had a senior HR advisor on it) to have considered extracts from some well known high-profile judgements.
For the avoidance of doubt:
1. The Law Lords noted that claims under discrimination legislation present special problems of proof as those who discriminate ". . . do not in general advertise their prejudices: indeed they may not even be aware of them". (Glasgow City Council v Zatar 1998 ICR 120, HL) https://publications.parliament.uk/pa/ld199798/ldjudgmt/jd971127/zafar.htm
2. In another significant case, the House of Lords similarly stated "Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated" (Nagarajan v London Regional Transport and others [1999] IRLR 572 (HL)).
3. The EAT similar determined that a tribunal will not assume that a person’s actions are free of subconscious bias even if the person is an honest and reliable witness, and one who genuinely believed they were acting for non-discriminatory reasons. (Gellser and another v Yeshurun Hebrew Congregation UKEAT/2016/0190.) https://www.bindmans.com/knowledge-hub/blogs/tribunal-needs-to-consider-subconscious-motivation-for-possible-discriminat/
4. In yet another high profile NHS case I have written about previously, the concept of “unconscious bias” was regarded as a crucial part of the judgement in the high profile Employment Tribunal decision in the case of Mr R Hastings v Kings College Hospital NHS Foundation Trust: 2300394/2016. https://www.gov.uk/employment-tribunal-decisions/mr-r-hastings-v-kings-college-hospital-nhs-foundation-trust-2300394-2016
5. Moreover, discrimination (including race discrimination) need not be the main reason for an act or omission to have been discriminatory. Case law has determined it simply needs to have a “significant influence” as yet another court concluded "… the discriminatory reason for the conduct need not be the sole or even the principal reason of the discrimination; it is enough that it is a contributing cause in the sense of a 'significant influence'. (Law Society v Bahl [2003] IRLR 640, at 83). https://www.casemine.com/judgement/uk/5a8ff7e760d03e7f57eb2bff
So where does that leave those involved in this case?
All three of the management witnesses were criticised, with the main management witness’s evidence described by the Tribunal as
“continued evasion when challenged, and her failure to explain her conduct at the material time, on occasion providing new excuses not mentioned before or to the grievance appeal, led the Tribunal to view her as an unreliable witness.” (Para 97)
In contrast, the Tribunal considered that the evidence of the claimant (Michelle Cox) was:
“measured and stood up to proof. Matters were explained by reference to events and correspondence at the relevant time or by reference to the respondent’s procedures. Despite robust cross-examination from the respondent’s Counsel, the claimant remained calm although she became visibly distressed on a couple of occasions and the Tribunal took breaks in the hearing where appropriate (Para 98)
All of Michelle Cox’s claims of direct race discrimination, race harassment and whistleblower victimisation were unanimously upheld itself very unusual.
The main management witness has since been promoted as has the original investigator and the HR adviser.
Michelle Cox is unlikely to ever be able to work again as a nurse.
This case involves NHS England, but it illustrates a much wider problem amongst key decision makers inside and outside the NHS:
a refusal to name racism,
a determination to avoid concluding that a manager’s actions were acts of race discrimination even when they self-evidently were;
the deliberate setting of a high bar of proof (was there racist motive?) which is unnecessary;
the inability of some (though certainly not all) HR staff to know the law and stand their ground in such decision making.
What should be done?
What organisations do when they are found to have done wrong is a good measure of the culture of the organisation. This case should do more than prompt action within this individual employer. It should lead to an acknowledgement across the NHS that this is not an isolated case, alongside an acceptance of responsibility, and decisive action at pace across the NHS.
For that to happen, every NHS employer needs to:
understand and proactively seek to prevent discrimination by working towards being actively anti-racist not just “non racist”;
create a climate in which it is safe for staff to raise concerns about unfair treatment of any kind and in which those complaints will be acted on in a timely and decisive manner;
be sure that those investigating such allegations listen with intent and actively seek to understand what has happened; https://www.hsj.co.uk/comment/questions-to-ask-if-conducting-an-inquiry-about-workplace-racism/7023290.article
understand discrimination law and in particular know that what counts is the impact of detrimental action that has no credible explanation - not whether there is proof of intent to discriminate;
take decisive action against staff who do discriminate, and treat victimisation of any staff member who raises concerns about racism as potential gross misconduct - including in this case
stop spending large sums of money defending the indefensible
Every HR team and trade union representative and staff network in the NHS should read the full Tribunal decision and consider what they need to change to prevent such cases happening again. There should be national guidance for all employers on the law and its implementation. This is not just an NHS England issue.
NHS England told Health Service Journal that “it did not want to comment about any individuals at this stage, but said: “No one should ever experience racism, discrimination or prejudice at work and NHS England will fully consider the learning from the employment tribunal.” https://twitter.com/HSJnews/status/1628349733193252865
Michelle Cox deserves an unequivocal apology (and much more) but many Black and Minority Ethnic staff may well be thinking “there but for fortune go you or I”.
A second blog will consider what every NHS employer should learn and act on, to prevent such cases.
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