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Samira Shaikh: Yet another NHS race discrimination case lost by the NHS.

Yet another NHS race discrimination Employment Tribunal car crash – drawn to my attention by the indefatigable Joan Myers.

Samira Shaikh, a Band 3 Ophthalmic Technician, was found to have been discriminated against by Moorfields Eye Hospital NHS Foundation Trust. Despite representing herself against the full armoury of a barrister funded by taxpayers, herself she successfully showed she had been subjected to:

  • direct race discrimination,

  • harassment related to race,

  • victimisation and

  • she won a claim for constructive dismissal linked to her treatment.

In summary, Samira Shaikh (and others) raised concerns about racism, including in career progression, which led to a managerial response of avoidance and retaliation.

The evidence

Evidence accepted by the Employment Tribunal included

“Mr Holm mimicked the Filipino accent by imitating the way a Filipino nurse spoke, and kept repeating mispronounced words and belittling the nurse. The second allegation (b) was that on 22 September 2020, Mr Holm mimicked an Indian doctor when asked for a request of imaging, mimicked her accent, laughing at the way they pronounced “will” due to their accent, and imitated that the doctor was of Indian descent.” (Para 87)

“during the meeting on 23 September four members of staff addressed how they felt discriminated towards their skin colour and gender. Mr Holm ignored all comments and made jokes throughout the meeting” (Para 88)

“the respondent moved the Claimant out of the adult department and into paediatrics following her querying management’s plan of action following discrimination claims from four other members of staff” (Para 94)

“The evidence generally points strongly towards Mr Holm stereotyping the claimant as a ‘loud ethnic female’, in particular the email sent to Ms Tinkler on 24 September 2020, the fact that Mr Holm indicated the move was to allow for a ‘cooling off period’ and Mr Holm’s evidence in cross examination that the move was because of the perceived ‘outburst’. This conclusion is also supported by the subsequent references made by Mr Holm to the claimant being ‘aggressive’ when she was not in fact displaying any aggressive behaviour, coupled with the false allegation that the claimant was audible to patients after the meeting. We also take into account that the reason for the move was that a complaint about discrimination had been made, and only the claimant and Ms Chekar were moved.” (Para 95)

“We find that Mr Holm did not take well to allegations of discrimination being raised and from that point on perpetuated a stereotype of the claimant as a ‘loud ethnic female” (Para 106)

“on 2 November 2020, the respondent brushed off additional concerns raised by the claimant regarding BAME progression. We find that, despite this meeting having been convened to deal with the previous allegations raised, BAME issues were not mentioned at all in this meeting”. (Para 113).

“We bear in mind that the whole point of the meeting was to address such concerns, and that the falsely adapted minutes from the previous meeting were now placed before this meeting, perpetuating the stereotyped narrative against the claimant. We find that the respondent did not take action or make any real attempt to understand what the issues were. Management was by this point so sensitive about allegations that discrimination had occurred that rather than dealing with such allegations head on they did not touch on the issues at all” (Para 114)

The Trust response

The response to these events will feel familiar to those who have followed other recent NHS race discrimination cases. In particular:

The internal investigation into Samira Sheik’s grievance somehow did not find evidence of the race discrimination that was found by the Tribunal which reported:

“The claimant’s grievance was dealt with by Ms Malcomson from HR. She produced an investigation report in May 2021. In short, Ms Malcolmson concluded that it was evident that there were some failings in terms of how the claimant was supported by the management team, however the claimant was not discriminated against on the basis of race.” (Para 77)

The main management witness sought to destroy evidence:

“Mr Holm came to the office while people were having lunch and advised everyone to start deleting emails as emails between staff members can be incriminating and can be used against them. He showed people how to delete emails and offered to assist. He gave further detail in cross examination that Mr Holm looked stressed, and showed people how to start with the inbox and then go to the backup and delete this” (Para 78)

The Trust subjected Samira Sheikh to detriment as soon as she and others raised concerns about racism – notably by moving her to another role and area

There was a refusal to engage constructively (or at all) with the allegations of racism

This case invites the same question as every other NHS race discrimination case that has been recently upheld and begs the same question: why were opportunities not taken by the Trust to intervene to stop the discrimination the tribunal found? This is especially so given that the Tribunal pointedly states:

“in January 2022 Mr Holm was given a final written warning for emails sent between himself and a colleague in June 2020 which were derogatory towards another employee and found to be discriminatory.” (Para 79)

A number of those involved with this case have subsequently had promotions since these events.

Samira Sheikh, on the other hand, had had to leave the Trust with her health in tatters.

I suggest, however, that we look beyond just the failings of the individual manager or Trust. It should now be clear that the NHS cases that reach Employment Tribunals are the tiny tip of the iceberg. We should ask why the Trust ever allowed this case to develop as it did.

This is not just a Moorfields problem. It is a national one.

I’d strongly suggest that every Chief People Officer in the NHS immediately audits every single complaint of racism by staff to identify and prevent similar cases in their own backyard. I know some are already doing just that and some have already found some.

Most race discrimination never reaches Tribunals largely because staff decide (amongst other reasons) that:

  • it is a waste of time highlighting racism because they won’t be believed and even if they are little will change

  • it is likely to make things worse

  • they are better off keeping quiet and suffering in silence

  • they should leave their employer or join the NHS bank or an agency where at least they can have some say in where they work?

A new survey launched by brap and myself seeks to comprehensively map what employers do when racism is challenged and how staff experience their treatment - in order to better challenge and change those processes – learning with accountability.

We are drawing on Employment Tribunal cases such as this one as well as the lived experience gained from this survey

Please complete the survey and share it with colleagues. The more responses provided, the greater authority it will have. You can download and share it here

And then read the tribunal decision.

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