Ms P Ohikhena v Epsom and St Helier University Hospital Trust — 2024

At the final hearing the tribunal dismissed the claimant's complaints of direct race discrimination under section 13 of the Equality Act 2010 and harassment related to race under section 26. The claimant, a Black lead midwife/matron, relied on the respondent's decision to advertise her role as a short secondment while she was on sick leave, and on the way Nicola Shepherd handled arrangements when the claimant needed to travel urgently to Nigeria because her mother was seriously ill. The tribunal noted that the only live direct discrimination allegation was the secondment advertisement.

On 21 February 2022 the tribunal rejected the claimant's account that Shepherd said, 'I don't mean to be rude, but can you take it as unpaid leave'. It accepted Shepherd's later account that she was trying to help the claimant leave for Nigeria, including by suggesting annual leave, unpaid leave, or going off sick. The claimant saw her GP the next day and was signed off with stress. On that basis the tribunal held that the alleged remark was not proved, and that the conversation as found could not amount to unwanted conduct related to race.

The tribunal accepted Shepherd's explanation for advertising a short secondment on 22 February 2022. It found that the claimant's role was a standalone Band 8a post, there was no obvious person to cover the managerial aspects of the role, a recent comparable absence had shown the difficulty of relying on the same cover arrangements, and Shepherd was genuinely concerned about backlog and unfinished Quality Standard 22 work. It also found that Mary Willocks was not an apt comparator because another Band 8 matron could cover her managerial work. The tribunal further found that the later refusal to retract the acting-up opportunity was not related to race. It dismissed both complaints and stated that issues of remedy did not arise.