Mr P Messeri v The Royal Hospital for Neuro-Disability Heard — 2022

Mr Messeri, an Italian nurse whose English was not his first language, worked mainly nights on Y Ward. The case arose from allegations made by a patient, X, in late November 2019 that the claimant had touched him inappropriately, tried to kiss him and accused him of being gay. The claimant was suspended on 28 November 2019, investigated by Mr Mugwagwa, taken to a disciplinary hearing before Ms Mill on 18 February 2020, and summarily dismissed on 28 February 2020. The tribunal also recorded that the claimant had withdrawn his direct sex discrimination complaint, and that the claims for unpaid wages and holiday pay had been agreed and were reflected in the judgment.

The direct race discrimination claim failed. The tribunal accepted that the suspension, investigation and disciplinary process were delayed, unclear and in parts inadequate, and that the claimant's explanations may have been misunderstood in part because of his limited English. However, it found that the reason for the respondent's unfair and unreasonable treatment was a lack of care, attention to detail and focus, together with concern about a serious complaint made by a vulnerable patient. It was not able to infer that Mr Mugwagwa or Ms Mill acted because the claimant was Italian or because English was not his first language.

The harassment allegations, pleaded by reference to race, sex, sexual orientation and sexual nature, were dismissed. The tribunal accepted that the conduct complained of was unwanted and could have had the effect of violating dignity or creating an adverse environment, but found that it was related to the handling of serious allegations of wrongdoing rather than to the protected characteristics. It concluded that race, sex and sexual orientation were background features only, and that the allegations were not sexual in nature for the purposes of the Act.

Indirect race discrimination succeeded only on one PCP: the practice of holding disciplinary hearings without arranging an interpreter. The tribunal rejected the other suggested PCPs, but found that the no-interpreter practice was one the respondent adopted, that it put people whose first language was not English at a particular disadvantage, and that the claimant was disadvantaged by it. The respondent did not produce credible evidence that the practice was proportionate to the legitimate aims it relied on. The tribunal also rejected any reduction for contributory conduct, deferred the question of any ACAS uplift to the remedy hearing, and held that the respondent had not shown gross misconduct so as to justify dismissal without notice. A further remedy hearing was listed for the unresolved heads of loss.