Mr C. Ilounoh v University Hospitals of Leicester NHS Trust — 2024

Mr Ilounoh, who is of Nigerian ethnic origin and trained as a Sonographer and Radiologist in Nigeria, complained of direct and indirect race discrimination, victimisation and constructive unfair dismissal. The case centred on the Respondent's decision from November 2019 to restrict him from obstetric scanning while it considered whether his overseas qualifications met FASP/PHE requirements for CASE accreditation or CASE equivalence. The tribunal found that the Respondent made enquiries with PHE, CASE, the University of Derby, AECC and others, and that its managers genuinely believed his qualifications did not establish the required equivalence until he completed his MSc and was permitted to practise obstetrics from September 2020.

The tribunal dismissed the direct race discrimination complaint. It found no valid actual comparator, because Mr Obi shared the same protected characteristic, and insufficient evidence to construct the Australian or Canadian comparators relied on. It held that the Respondent acted because of its understanding of the FASP guidelines and its belief that the Claimant could not undertake obstetric duties without CASE accreditation or equivalence, not because of race. It also found the Claimant had not proved facts from which an inference of race discrimination could be drawn and, if the burden had shifted, the Respondent had proved a non-discriminatory reason.

On indirect race discrimination, the tribunal accepted only one possible PCP: that all obstetric sonographers must have a CASE accredited or CASE equivalent qualification as per PHE guidelines. It was prepared to accept that this PCP put Nigerian-trained sonographers, and the Claimant, at a disadvantage because they had to show CASE equivalence. The complaint was nevertheless dismissed because the tribunal found the PCP justified: the Respondent's aims of avoiding claims arising from scans by sonographers not appropriately trained and ensuring indemnity were legitimate, and restricting only obstetric work while permitting the Claimant to undertake other duties was proportionate.

The victimisation complaint was dismissed. The tribunal found that allegations before 6 February 2022 were out of time and that it was not just and equitable to extend time. For the remaining matters, it found that only complaints expressly referring to discrimination were possible protected acts, that several alleged victimisers knew little or nothing of the grievance contents, and that the Claimant had not established a causal link between any protected act and the detriments alleged. Specific allegations, including alleged false accusations, extra scrutiny, new guidelines, personnel-file withholding and criticisms of clinical practice, were rejected on the facts or found not to be detriments caused by protected acts.

The constructive unfair dismissal complaint was also dismissed. Applying the Malik trust and confidence test and Western Excavating principles, the tribunal found that the Respondent's conduct, viewed objectively, was not likely to destroy or seriously damage trust and confidence. It also found that the Claimant had affirmed any possible breach by continuing to work, had delayed too long in resigning, had not identified a last straw, and resigned because he had obtained another role at a time and place of his choosing rather than because of a breach of contract. As liability was dismissed, no remedy was awarded.