Director’s discrimination claims ‘staggering’, NHS England tells tribunal

A tribunal has been urged to throw out claims of race and sex discrimination by an NHS England director against his employer and its former chief people officer.

Representatives of NHS England and Prerana Issar argued there were “clear, non-discriminatory reasons” for events Mike Franklin had reported to the tribunal, and that he had conflated a perceived unfairness with discrimination.

Mr Franklin, NHSE joint director of equality, diversity and inclusion, has brought claims of race and sex discrimination against NHSE and Ms Issar to a tribunal, which began on Monday at Montague Court in Croydon, south London.

Mr Franklin was appointed to the joint EDI director role in summer 2020. He was on long-term absence from about summer 2021 and, the tribunal heard, took sickness absence again in autumn 2022. He remains on long-term absence.

Ms Issar joined NHSE in 2019 and stepped down in March 2022, when NHSE said she was taking time to “recover fully from a covid-related illness”. Her responsibilities included equality and diversity in the NHS and she oversaw Mr Franklin’s work.

In a written submission presented to the hearing yesterday (Wednesday), NHSE and Ms Issar’s representatives said some of Mr Franklin’s claims – including that Ms Issar blocked another colleague’s promotion due to their race – “beggar belief”.

Her representatives argued Ms Issar’s intervention in this situation was because Mr Franklin and Jenni Douglas-Todd, another NHSE joint EDI director until last March, had sought to “poach” one of her direct reports without informing her.

The written submission said Mr Franklin’s claims were “staggering”, after he said he “could not see another reason”, and added: “His blindness to the obvious non-discriminatory reasons for [Ms Issar’s] reaction does him no credit.

“It indicates he is willing to make serious and harmful allegations of discrimination even when they have no basis.”

‘Exasperated’

An investigation was launched into Ms Issar and Mr Franklin’s working relationship after she became “exasperated” with his performance and lack of communication over several months, the tribunal was told on Tuesday.

Mr Franklin told the tribunal that the investigation was not initiated under a specific policy, while other witnesses said during evidence that NHSE did not have a policy covering this type of situation.

Multiple alleged incidents were listed. These included Ms Issar “repeatedly chasing” progress on projects that were often taken on by junior members of staff, while one report was allegedly pulled from submission to the NHSE board due to its apparently poor quality.

Anton Emmanuel, head of the NHS’s workforce race equality standard programme, said of Mr Franklin during oral evidence that there was a “divergence between the quality of what was being delivered and the description of the work”.

The tribunal was told Mr Franklin had repeatedly requested details about the investigation, as well as of allegations apparently made against him.

He sent Ms Issar an Equality Act questionnaire in August 2021, which included questions about allegations that were apparently made about him by other colleagues, and was told he would receive a reply within two weeks.

Mr Franklin eventually received a response in December 2022, he said, but the investigation had effectively been discontinued when Ms Issar departed NHSE in March last year.

Ms Issar’s and NHSE’s representatives said it would have been “preferable, and fairer” for Mr Franklin to have received details prior to the investigation, but argued there was still no suggestion he had been discriminated against.

‘No proper basis’

They told the tribunal heard there was “no proper basis” for claims Mr Franklin’s treatment was related to race, sex or a protected act.

This included claims he was treated unfairly by senior colleagues after alleging that disability was “not being taken seriously” by NHSE, his “exclusion” from direct report meetings and mistakenly being told he was suspended.

It was argued that, even if the tribunal concluded he was treated unfairly, this was not tantamount to discrimination.

But Mr Franklin’s representative told the tribunal judges: “You have not been presented with factual evidence and examples by [Ms Issar and NHSE that is] sufficient to demonstrate they have treated another director in the same way they treated [Mr Franklin].

“That raises something more than just unreasonable conduct.”

The tribunal hearing finished yesterday (Wednesday), and a judgment is due to be made in the spring.