Ms S Shaikh v Moorfields Eye Hospital NHS Foundation Trust — 2023

At the outset the tribunal refused a late application to amend the claim to add sex discrimination and new allegations concerning the grievance process, applying Selkent Bus Company Ltd v Moore and weighing prejudice, timing and time limits. The case therefore proceeded on race discrimination, harassment related to race, victimisation, and constructive dismissal arising from discrimination. The tribunal also found the earliest complained-of incidents were in time.

On the facts, the tribunal accepted that Mr Holm mimicked Filipino and Indian accents on 17 and 22 September 2020. It held those incidents did not amount to direct race discrimination against the claimant, because they were not shown to be less favourable treatment of her because of race, but they did amount to harassment related to race. It also accepted that Mr Holm ignored concerns raised at the 23 September 2020 meeting and made jokes, which it treated as harassment, though not direct discrimination.

The tribunal found that the claimant was moved out of the adult department and into paediatrics because she had challenged management about racism concerns, and that later emails, text messages and meeting minutes continued a false stereotype of her as an aggressive, loud ethnic female. It held that those acts amounted to direct race discrimination, harassment and, where the complaint had been made after the 23 September meeting, victimisation. It rejected some pleaded incidents, including the alleged threat to put the claimant through disciplinary action and the alleged comment by Ms Martin about a white male and ethnic female, and it found the 3 November remark about "two months" in the NHS was not discriminatory or harassing.

The tribunal found that the respondent failed to comply with its return-to-work arrangements when the claimant came back on 1 December 2020, and that the continued handling of her line management in December 2020 was part of the same pattern of stereotyping and adverse treatment. It concluded that the cumulative discriminatory acts, culminating in the 15 December 2020 telephone call, amounted to a serious breach of the implied term of trust and confidence, that the claimant resigned in response to that breach, and that she had not affirmed the contract. It therefore held that she was constructively dismissed as a result of discrimination. Remedy was not determined in this judgment and was left for a further hearing if necessary.