MS O GBERBO v Professional Standards Authority for Health and Social Care — 2024

The Claimant, a Black British lawyer in the Respondent's section 29 team, was not appointed to the new Lead Lawyer role after interviews on 19 June 2023. She alleged direct race discrimination and victimisation in the appointment process, the handling of her grievance, and the grievance appeal, and said that those matters led to a constructive dismissal after she resigned on 11 January 2024.

The Tribunal accepted that the burden of proof shifted because the Claimant was the only non-white applicant and there was evidence before it of a wider sense of 'otherness' among some minority ethnic staff. It nevertheless accepted the interview panel's explanation that the successful external candidate performed better at interview, that management was a proper subject for questioning because the role involved managing a team, and that the written test was not separately scored except if needed as a tie-break. The Tribunal rejected the case that the process was designed to disadvantage the Claimant or that race played any part in the unanimous appointment decision.

On victimisation, the Tribunal rejected the allegation that the panel knew the Claimant had provided a witness statement for DG, so the appointment decision could not have been taken because of that protected act. It also found no basis to infer victimisation from the 2017 pay grievance. The Tribunal accepted that the grievance investigation by Mr Mockler was less than thorough, but it concluded that his report and Mr Clamp's appeal outcome were still based on a reasonable acceptance of the panel members' explanations and not on the Claimant's race or protected acts.

The Tribunal therefore dismissed the race discrimination and victimisation claims. It also held that the associated constructive dismissal claim failed because there was no unlawful discrimination or victimisation and no breach of trust and confidence.