Ms A Cox Respondent NHS Commissioning Board [operating as NHS England/NHS Improvement] v P Gilroy, one of His Majesty’s Counsel — 2023

Ms A Cox was employed as a Continuing Healthcare Manager and deputy to Gill Paxton. She brought claims of direct race discrimination, harassment related to race, victimisation and whistleblowing detriment arising from a series of events between May 2019 and November 2020. The tribunal preferred the claimant's evidence to Ms Paxton's where there was conflict and found that the matters complained of formed a continuing course of conduct, so the time-limit challenge did not bar the claims.

On the race discrimination claim, the tribunal found that Ms Paxton excluded the claimant from the 13 May 2019 team away day, arranged the 4 October 2019 event on the same day as the national BME conference, did not tell her about the Band 8B uplift for Ms Fletcher, discussed the claimant's health with Ms Luff, and excluded her from the initial stages of the Band 8A recruitment process in January 2020. It held that these acts were less favourable treatment because of race.

On harassment, the tribunal held that the same conduct, assessed cumulatively, was unwanted conduct related to race which had the purpose and effect of creating a hostile, humiliating and intimidating environment. It also treated the grievance and appeal handling as part of the overall pattern, noting that the grievance outcome did not engage with the discrimination issue and the appeal did not properly examine the reasons for the treatment or the legality point about IRP panels.

On victimisation, the tribunal accepted that the claimant had done protected acts by raising equality concerns, lodging a grievance, appealing and presenting tribunal proceedings. It found that those protected acts materially influenced the treatment complained of, including the exclusionary decisions by Ms Paxton and the response to the claimant's complaints.

On whistleblowing detriment, the tribunal accepted protected disclosures in August and November 2019 and repeated disclosures during the grievance process about fairness, anti-discrimination practice and the use of staff on IRP panels. It found that the complaint was sufficiently pleaded in the first ET1, that the disclosures were repeated in the grievance and appeal, and that the detriments succeeded on the same factual basis as the victimisation complaint. The judgment ends by sending the case to a separate remedy hearing, with no monetary award recorded in this decision.