Mr P Tomison, of counsel For the v Respondent — 2020

The claimant, a Black Caribbean Healthcare Assistant on Ward 23, complained after a 10 August 2018 incident involving patient B12, who used racist language. The tribunal found that Ms Tindale-Wignall did not say that racism from older people was acceptable or normal, and instead found that her response was to explain that the patient had dementia and that the comments should not be taken personally. It also found that the claimant's later Datix wording overstated what had been said, while the underlying complaint about racist language was genuine and entirely understandable.

The tribunal found that Mr Scudder's rewording of the Datix report was done because he mistakenly treated it as a patient-safety incident about verbal abuse by a patient, not because of the claimant's race. Ms Burke then investigated the amended report from the patient's perspective and concluded there had been no adverse outcome. On the evidence, the tribunal held that neither the Datix handling nor the investigation was related to race, and therefore the harassment and direct discrimination claims based on those matters failed.

As to the later events, the tribunal accepted that Ms Moffatt told the claimant words to the effect that Ms Tindale-Wignall may not have meant what she said 'in that kind of way', but found that this was not race-related and was an understandable response in the context of an ongoing investigation and the fact that the claimant had not yet made a formal grievance. The tribunal also rejected the allegation that Ms Tindale-Wignall shouted at the claimant on 13 or 14 November 2018; even if the words were used, the tribunal found they were not objectionable and were not said in an objectionable way.

The tribunal further found that the December 2018 roster changes, including the move on 28 December 2018 from Ward 23 to Ward 20, were driven by staffing and operational needs and, in some instances, by the claimant's own request not to work with Ms Tindale-Wignall. The claimant was also paid the lost night-shift enhancements identified in the grievance outcome. Although the tribunal found that the claimant had a reasonable belief for whistleblowing purposes on 11 August 2018, it held that there was no later detriment on the ground of that disclosure. All claims therefore failed, and the victimisation claim had been withdrawn.