Ms M Odei v Kings College Hospital NHS Foundation Trust — 2019

Ms Odei joined the Haven service in 2010 and transferred to Kings College Hospital NHS Foundation Trust in 2013. The tribunal found that she and Ms Singh had initially been friends and that some of the disputed workplace exchanges occurred in that context. It accepted that some comments may have been inappropriate, but it found the claimant was not genuinely offended at the time and that many of the later complaints were not proved or were not shown to be discriminatory.

The tribunal dismissed the race and religion or belief discrimination claims. It held that the complaint arising from the Asian Bride show in January 2011 occurred at a social event outside work and was out of time in any event. The workplace allegations about chanting, spells, crystals and related behaviour did not satisfy the harassment test, because much of the conduct was not unwanted when it occurred and did not objectively create the required hostile environment. The tribunal also found no persuasive evidence that the respondent's management actions were taken because of the claimant's race or Christianity.

After Ms Singh reported the 19 June 2015 patient incident, the respondent investigated and held disciplinary proceedings. The tribunal accepted that there was a proper basis for investigation and that the claimant later accepted she had made physical contact with the patient. It found that the final warning and capability plan were not imposed because of race or protected acts, although some of the wider capability conditions went beyond the immediate disciplinary allegation and would have been better signalled earlier.

The tribunal also dealt with the grievance history and protected acts. It held that the claimant's written complaints of 18 August 2015 and 20 March 2016 were protected acts, but the earlier oral complaints were not. It criticised the delay in dealing with the 20 March 2016 grievance and held that the employer had not made meaningful progress in investigating it before the claimant resigned on 20 June 2016. That failure was the fundamental breach that founded the constructive dismissal finding.

The claimant succeeded only on constructive unfair dismissal. The tribunal held that the grievance-handling breach caused the resignation and that the dismissal was not fair. Remedy was not decided in this judgment; the tribunal directed the parties to try to agree remedy or prepare for a later remedy hearing.