A senior Black nurse in the North West has won what has been described as a “landmark” employment tribunal against NHS England and NHS Improvement for racial discrimination.
The judgement, published on Monday, found that Michelle Cox had been treated unfavourably by her employer because of her race and because she was willing to speak up.
“It sadly proves that institutional racism is still present in organisations”
Ms Cox, who was employed by NHS England and NHS Improvement Commissioning as a continuing healthcare manager based in Manchester, faced discrimination, harassment and victimisation from her employer between 2019 and 2021, the tribunal held late last year heard.
The nurse, who was appointed as the regional lead to the Chief Nursing Officer’s Black Minority Ethnic Strategic Advisory Group in 2018, was found to have been excluded by her line manager, Gill Paxton, at “every opportunity”.
The judgement ruled that her line manager had “created an intimidating and hostile and humiliating environment” for Ms Cox at work.
The tribunal heard how Ms Paxton purposely excluded Ms Cox from team events, including two team away-days that were arranged for occasions she could not attend.
One of these days was scheduled for a time Ms Cox was due to be at a national conference for minority ethnic nurses.
In addition, the tribunal found that Ms Paxton had discussed Ms Cox’s health with a team member and during the same conversation had tried to “encourage” that staff member to report Ms Cox.
Ms Paxton also excluded Ms Cox from the recruitment process for two new senior posts in her team.
“The tribunal found that [the line manager] went to some length to circumvent the claimant and had intended that the claimant would not be involved, without any good reason,” said the judgement.
Another incident saw Ms Cox not being informed that one of her team members had been promoted to a band 8b position.
In January 2020, Ms Cox sent a formal letter of grievance complaining about some of these issues. She had said she felt “undermined, marginalised and ignored”.
“We hope this ruling now drives change and provides greater accountability for poor behaviours and actions”
But the tribunal found that the outcome of that grievance carried out by her employer had failed to address the “underlying issue of race discrimination” that had been raised.
The possibility of discrimination was only alluded to by way of the employer saying there was “no evidence of any actions or behaviours having been deliberate or a deliberate attempt to discriminate against the claimant on grounds of race”.
Instead, the employer’s response to the grievance had only went as far as to suggest that Ms Paxton had “made some poor management decisions which had comprised and upset the claimant”, the tribunal determined.
“The tribunal considered this conclusion to be woefully inadequate – it fails to consider or address whether certain actions may have been subconscious bias or racially motivated,” it added.
It also raised concerns about a subsequent grievance appeal lodged by Ms Cox.
Meanwhile, the tribunal also upheld Ms Cox’s complaint of detriment for whistleblowing.
It found that Ms Cox had raised concerns at work that amounted to protected whistleblowing complaints, and that this had likely affected the way she was treated at work.
One example highlighted of Ms Cox blowing the whistle was when she complained about her team members sitting on independent review panels – something she highlighted was a breach of independence and legal obligations.
Her line manager Ms Paxton “dismissed” the issue and said she had “cleared it with legal”. However, the tribunal judgement said there was “no evidence” that this was the case.
The tribunal ruled that the less favourable way in which Ms Cox had been treated overall was “because of race”.
Ms Cox, who was represented by the Royal College of Nursing’s counsel at the employment tribunal, said: “I am clearly delighted with the outcome.
“I was confident that the evidence put forward demonstrated a pattern in discriminatory behaviours due to the colour of my skin.
“It sadly proves that institutional racism is still present in organisations, despite the efforts to make it more inclusive for people of all races and backgrounds.”
She added: “I want this outcome to send a strong message to anyone facing similar behaviour in the workplace, particularly due to race, to have the courage to speak up.
“Little too often does this behaviour just become the ‘norm’ for many colleagues, it needs to be challenged more often and organisations need to work towards a no tolerance policy where discriminatory attitudes, behaviour and racism is concerned.”
“No one should ever experience racism, discrimination or prejudice at work”
She said she hoped this “landmark outcome leaves a legacy for change for staff experiencing race discrimination”.
Ferguson Doyle, senior legal officer and solicitor for the RCN in the North West who supported Ms Cox’s case, said one of the reasons why this case was landmark was because the employer’s mishandling of Ms Cox’s grievance and appeal “were found to be acts of discrimination in themselves”.
Meanwhile, Estephanie Dunn, regional director for the RCN in the North West, said “far too few” cases like that of Ms Cox’s reached this stage.
“We hope this ruling now drives change and provides greater accountability for poor behaviours and actions,” she added.
An NHS England spokesperson said: “No one should ever experience racism, discrimination or prejudice at work and NHS England will fully consider the learning from the employment tribunal.”
In addition, a statement for the NHS West Yorkshire Integrated Care Board – where Ms Paxton now works – said: “We are committed to creating an environment that recognises and values the diversity of all colleagues and people using our services.
“We will consider the outcome of the tribunal and any actions for our organisation.”