Mrs V. Okoh v North East London NHS Foundation Trust — 2017

Mrs V. Okoh, who described herself as Black British of Nigerian national origin, brought claims arising from her work as a senior manager in the respondent trust. The tribunal applied the Hendricks continuing act approach to time limits, the Igen/Madarassy burden of proof analysis, and the harassment and constructive dismissal authorities including Dhaliwal, Omilaju and Kaur. Although a number of the alleged acts pre-dated 17 April 2018, the tribunal still considered them because they formed part of the case on discriminatory and unfair constructive dismissal.

The tribunal rejected the race discrimination, harassment and victimisation claims. It found that the June 2017 decision to exclude the claimant from an Ethnic Minority Network Ambassador panel was made by Mr Henshaw for practical reasons, not because of race, and that Ms Ward's endorsement was not race-based. The 'cracking the whip' remark and gesture in October 2017 were found not to be related to race in the statutory sense, and the discussion of a possible language barrier, together with descriptions of the claimant as 'challenging', 'defensive' and 'aggressive', did not amount to race harassment or direct discrimination. The tribunal also held that the referral to the NMC and the decision to start an internal investigation were driven by concerns about the recruitment of OA and other professional issues, not by the claimant's ACAS contact or tribunal claim.

The tribunal upheld the unfair constructive dismissal claim. It found that the respondent's handling of the claimant's grievances was excessively delayed, including a fifteen-month delay in the grievance about Ms Thorn and serious delay in the grievance against Ms Ward and the associated stress risk assessment. It also found that the October 2017 change in reporting lines was handled insensitively and that Ms Ward's conduct at the 10 November 2017 meeting, where she accused the claimant of lying, was inappropriate and unprofessional. Taking those matters together, the tribunal held that the respondent had committed a repudiatory breach of the implied term of trust and confidence, that the claimant resigned in part because of that breach, and that the dismissal was not shown to be fair under s.98(4) ERA 1996.

The tribunal separately held that the discriminatory constructive dismissal allegation failed because no underlying race discrimination was made out. Holiday pay and notice pay claims were withdrawn. No remedy was determined in this judgment; the tribunal listed the case for a later remedies hearing and reserved questions about any Polkey reduction and any ACAS uplift.