In person For the v Respondent — 2023

The claimant was a bank worker in the Respondent’s Overseas Patients Services team. The tribunal found that, against the backdrop of the COVID-19 pandemic, the Respondent reduced bank staffing and terminated his Overseas assignment in May 2020 because work in the team had fallen and the Trust was pursuing cost savings. The claimant was later taken on for a temporary ACU assignment from 30 June 2020, but that assignment ended in July 2020. He complained that white comparators had been retained or brought back, and that he had been treated differently because of race and after raising discrimination complaints.

The tribunal held that the claimant’s email of 1 July 2020, his discussion on 3 July 2020, his email of 23 July 2020, his meeting on 30 July 2020, and his grievance of 3 August 2020 were protected acts because he was alleging race discrimination. It found that knowledge of those complaints was limited at first, then reached Mr Goodrich and Mr Brown, but that Ms Fegan did not know about the grievance until September 2021. On the victimisation issues, the tribunal found no causal link between the protected acts and the later recruitment-related complaints. In particular, it found the incorrect person specification for the ASM post was a genuine error and that Ms Fegan’s decision not to shortlist the claimant was based on his application and her assessment that he did not meet the essential criteria.

On direct race discrimination, the tribunal accepted the Respondent’s explanation that the relevant decisions were driven by the pandemic, reduced work, and commercial pressures. It found that the claimant was not in materially the same position as several of the comparators, that some of them were also taken off bank work or later returned when work resumed, and that the Overseas team did not recruit anyone else because overseas travel remained heavily restricted. The tribunal did not accept that the emails about Mr Mensah showed a hidden plan to keep three people in the Overseas team, and it found that the Respondent’s redeployment steps were aimed at finding work for a permanent employee whose usual role had reduced. It dismissed both the race discrimination and victimisation claims and made no monetary award.