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Employment Law Case Update: Race Discrimination and Whistleblowing
- AuthorEmployment Team
Whistleblowing and protected disclosures are becoming an increasingly important topic in the aftermath of Covid-19 and so it's important for employers to recognise when an employee may be making a protected disclosure so they can act accordingly. Today, our Employment Law team reviews the case of Miss J Panahian-Jand v Barts Health NHS Trust and discusses how not to deal with an employee who raises a grievance.
Miss J Panahian-Jand worked for the Barts Health NHS Trust as a bank nurse. One night in May 2019, there was a discussion among the nurses on duty, including Miss Panahian-Jand, about “groupings of staff along racial lines and unfair allocation of work”. To illustrate the cliques or groupings on the ward, Miss Panahian-Jand drew a triangle which included the initials of some of the nurses.
Miss Panahian-Jand, who identifies as white, then had an informal discussion with her supervisor, Mrs Roberts, where she raised concerns about allocation of work, racial division between workers, and bullying of two junior members of staff. Miss Panahian-Jand wanted Mrs Roberts to be aware of her concerns but did not wish to raise a formal complaint. Mrs Roberts told Miss Panahian-Jand not to discuss the allegations.
Over the next few days, discussion continued among some of the nurses about the allegations made by Miss Panahian-Jand and some nurses complained to Mrs Roberts that the allegations had upset them. Mrs Roberts told Miss Panahian-Jand that she should raise her concerns as part of a formal complaint and asked her to “stop engaging in conversations of that nature”. A couple of days later a staff member complained to Mrs Roberts that Miss Panahian-Jand had continued to discuss the allegations of racial discrimination. Mrs Roberts decided that Miss Panahian-Jand had disobeyed her instructions and made the decision to restrict Miss Panahian-Jand from working on Acorn ward at the hospital. Because this was the only ward on which she was qualified to work, Miss Panahian-Jand was effectively restricted from working at the hospital.
The next day Miss Panahian-Jand replied to the restriction and made a formal complaint of race discrimination.
A misconduct investigation began to determine whether Miss Panahian-Jand had ignored Mrs Roberts’ instruction to refrain from speaking about the discrimination allegations. It was Trust policy that the investigation should be concluded in 28 days. However, the investigation was not concluded until early October and Miss Panahian-Jand was not provided with the investigation report until mid-December.
Despite the investigator concluding that there was no case to answer against Miss Panahian-Jand, her restriction was not lifted. The reason given for this was that the grievance she had raised was still being investigated and that there were concerns on how it would affect her relationships with colleagues. She was not reinstated in 2020.
Miss Panahian-Jand filed a claim in the Employment Tribunal (ET) for victimisation.
Under section 27 of the Equality Act, an employer victimises an employee if they subject them to a detriment for doing a protected act, such as making an allegation, in good faith, of discrimination.
The ET found that Miss Panahian-Jand’s informal discussion with Mrs Roberts about race-based discrimination was a protected disclosure. Following her disclosure, Miss Panahian-Jand was subjected to a detriment when she was restricted from working on Acorn ward because this was the only ward at that hospital on which she was qualified to work, which meant she had to find work at a hospital that was unfamiliar to her and further away from her home.
The ET found that the allegation that Miss Panahian-Jand had failed to follow management instruction was not serious enough to warrant restriction. Further, there was insufficient evidence that Miss Panahian-Jand had disobeyed Mrs Roberts’ orders and continued with the conversations. The ET reasoned, therefore, that “there must have been another material factor in Mrs Roberts’ mind for restricting [Miss Panahian-Jand]. We conclude this factor was the fact that she had made race discrimination allegations”.
The ET ruled that Miss Panahian-Jand had been victimised, contrary to the Equality Act. It made a recommendation that the restriction against Miss Panahian-Jand be lifted. It also ordered the Trust pay Miss Panahian-Jand £26,000. This included awards for financial loss, injury to feelings, and a 20% uplift for failing to follow the ACAS code.
This case reminds employers that they owe a duty to employees who make a protected disclosure, even where the disclosure contains allegations which are upsetting, or which the employer believes are unfounded. Grievances or disclosures made in good faith should be taken seriously and investigated by an objective party. Employers who seek to punish an employee for making an allegation in good faith are acting contrary to the Equality Act and risk a tribunal claim.
If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email firstname.lastname@example.org.
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.