Ms A Z Kweyama v Central and North West London NHS Foundation Trust — 2022

The claimant, an agency Band 5 nurse at Heathrow Immigration Removal Centre, brought Equality Act 2010 claims against the respondent Trust after incidents in January and February 2019. Her unauthorised deduction from wages claim, based on alleged Band 6 pay, was withdrawn and dismissed upon withdrawal. The tribunal accepted that she was a contract worker within section 41 Equality Act 2010.

The tribunal found that the claimant was racially abused by detainees on 19 January 2019 and made a Datix report. It held that there had been a clear failure of management in not giving her feedback or following up recommendations with Mitie, but it did not find evidence from which to infer that the failure happened because the report was about racist abuse, so that allegation did not establish victimisation.

The tribunal accepted the claimant's account that on 9 February 2019 nurse LS said, after the claimant referred to possible racial abuse by a detainee, that she needed to get a pool of bleach and bleach her skin so she would come back white and patients would be nice to her. It also accepted that on 10 February 2019 LS was overheard saying words to the effect that she did not care and the claimant could bleach her skin. The tribunal found those comments were unwanted conduct related to race, had the effect required by section 26 Equality Act 2010, and amounted to race-related harassment. It also found they were acts of victimisation because the claimant's complaint about being treated differently by the detainee formed part of the reason for the comments.

The tribunal found that on 21 February 2019 deputy lead nurse KM told the claimant that she was concerned about the claimant's mental health because some words used in the claimant's statement were worrying, and also told her that her agency role was being terminated. The tribunal found the mental health comment was unwanted conduct related to race because it was linked to the claimant's complaint about racial abuse, and that it amounted to harassment. It also held that the comment and the termination of the agency role were victimisation because the claimant's Datix and written statement about LS's conduct were at least part of the reason for KM's actions.

The direct race discrimination complaint was dismissed. The tribunal held that the acts relied on were made out as harassment and were therefore excluded from the definition of detriment for the purposes of the direct discrimination complaint; it also stated that, for KM's comment, it would not have inferred less favourable treatment on grounds of race compared with a white person who had made an identically worded Datix. The tribunal criticised the investigation into the claimant's Datix about LS's comments as superficial and inadequate, but found the reasons for that did not include that it was a complaint of race discrimination. Liability only was decided, and no remedy award was recorded in this judgment.