Ms R Chauke (daughter) For the v Respondent — 2022

The claimant, a Band 6 nurse in the Trust’s DESMOND service, alleged race-related harassment, direct race discrimination and victimisation arising from events between September 2019 and April 2020. The tribunal held that the claimant was not discriminated against in contravention of part 5 Equality Act 2010 and dismissed all complaints. It made its findings issue by issue, considering the claimant’s evidence, contemporaneous emails, grievance correspondence, management of change documents and the accounts of several managers and colleagues.

On the early attendance and leave issues, the tribunal found that Mr Greaves’ offer to let the claimant make up hours when she wanted to leave sick on 12 September 2019 was intended to be supportive and would have been made to other staff, including those on the attendance process. It also found that Ms Riley’s request on 31 October 2019 that the claimant check with Mandy Snape before extending annual leave from two and a half weeks to three weeks in a two-person service was reasonable and would have been made to any member of staff in that position. In both instances, the tribunal found no less favourable treatment because of race.

The tribunal accepted that the claimant raised a dignity and respect complaint in December 2019 and that, by mid-January 2020, the Trust understood she was saying she had been treated differently because she was a black woman. It found, however, that the Band 4 vacancy in February 2020 was a redeployment slotting-in exercise rather than a recruitment process, and that it was reasonable not to announce it immediately because the restructuring remained confidential. On the MDT issue, the tribunal found Ms Orme had invited the DESMOND team as part of her remit and that Mrs Finney’s question about whether the claimant knew it was an MDT meeting was not a direction to leave and was something she would have asked of any member of the team.

On the Covid-related matters, the tribunal made credibility findings against the claimant on the 16/17 March 2020 and 21 September 2020 incidents. It found that on 16/17 March she had not initially reported a continuous cough and was correctly told that she was not required to self-isolate under the guidance then in force; it also found that her sickness record was updated consistently with her later symptoms. For 21 September, the tribunal found she initially reported a sore throat and headache, not loss of smell, so she was correctly told to return to work until the later symptom of loss of smell emerged. It found the later occupational health referral on 17 April 2020 was clumsily worded, but was prompted by genuine concerns about the claimant’s wellbeing and behaviour, not by race or by the grievance.

The victimisation complaint failed for the same reason. The tribunal accepted the grievance as a protected act, and it accepted that the inclusion of another employee’s name on the risk assessment form was a data protection error capable of amounting to detriment. However, it found the form was only a draft, that the error was accidental, and that the handling of the grievance, the occupational health referral and the later investigation steps were driven by workload pressures, restructuring, COVID-related constraints and concerns about the claimant’s behaviour, not by retaliation for the grievance. Overall, the tribunal found no facts from which it could infer discrimination and no race link to the treatment complained of.