Mr A Nti v University Hospitals Sussex NHS Foundation Trust — 2024

The claimant, a Charge Nurse employed by the respondent since 2004, brought claims arising from the handling of grievances dated 17 January 2020 and 10 June 2020, the respondent's non-acceptance of his asserted disability of atrial fibrillation, adverse findings made in the grievance outcome, and alleged failure to protect him from Covid-19 risks. The tribunal found that the claimant was disabled at the material times by atrial fibrillation, and that the respondent had delayed the grievance from 24 March 2020 onwards, failed to acknowledge or accept disability, made adverse findings in the grievance outcome, and required him to work in the red zone until 2 May 2020. It found no failure to protect him from Covid-19 risks after that date, and found a risk assessment was carried out on 12 May 2020, with a further risk assessment on 19 June 2020 limiting his work to the green zone.

The direct race discrimination claim failed. The tribunal found no factual evidence of institutional discrimination affecting the decision-makers, and found that the grievance delay was explained by the effects of the first national lockdown and the pressures on the NHS and on Ms Gericke's workload. It found that Ms Gericke made adverse findings in the grievance outcome because she considered it necessary to assess Mr McKenna's explanations in order to resolve the claimant's grievance, not because the claimant was Black African. It also found no evidence that the claimant's disability would have been accepted, or that he would have been removed from red-zone work sooner, had he been white.

The direct disability discrimination and discrimination arising from disability claims also failed. Although the tribunal found the claimant was disabled, it found no evidence that a non-disabled comparator would have been treated more favourably. For the section 15 claim, it accepted that the claimant's atrial fibrillation caused tiredness, palpitations, feeling faint and breathlessness, but found that none of the alleged unfavourable treatment was because of those matters. The delay was attributed to the pandemic pressures, the non-acceptance of disability to Ms Gericke's view of the medical position, the adverse grievance findings to the perceived need to address the grievance issues, and the red-zone work to standard rostering until the claimant drew attention to his heart condition.

The harassment claims related to race and disability were dismissed because, although the four alleged detriments were unwanted conduct, the tribunal found they did not relate to race or disability. The victimisation claim was dismissed because the protected acts were not disputed and the tribunal found detriments occurred, but accepted the respondent's explanations and found the detriments were not because the claimant had done protected acts.

The whistleblowing detriment claim failed on two bases. The tribunal found that both grievance letters disclosed information and that the claimant reasonably believed they tended to show breach of legal obligations and health and safety endangerment, but it found that he did not believe at the time that either disclosure was made in the public interest. In any event, the tribunal found the alleged detriments were not done on the ground that he had raised the grievances. All claims were dismissed and no remedy was awarded.