NHS England has lost an employment tribunal case against a senior black nurse on grounds of race discrimination and whistleblowing, and has been criticised for serious flaws in its own investigations.
A judgment published today found Michelle Cox, a black woman who was an NHS continuing healthcare manager based in NHS England’s North West regional team, was excluded by her manager “at every opportunity”.
In 2018, she was appointed the regional lead to the chief nursing officers’ black minoirty ethnic strategic advisory group in the North West.
The case centres on problems between Ms Cox and her line manager, then regional head of continuing healthcare, Gill Paxton, which took place from around April 2019 to November 2020.
Employment judge Marion Batten said: “The tribunal considered there was a pattern of behaviour by [Ms Paxton], that towards the claimant and towards no other employees, which had the purpose and effect of unlawful harassment.
“Ms Paxton created an intimidating and hostile and humiliating environment for the claimant at work. Her actions in excluding the claimant were intentional in many regards, and her actions had that effect.”
Ms Cox – who worked as a Band 8 nurse – filed a formal grievance in January 2020 after saying she had felt “undermined, marginalised and ignored”. Among her concerns was a more junior member of her team being promoted without her knowledge, and not being involved in the recruitment process for two senior roles.
The tribunal heard Ms Cox was not informed one of her team members, who is white, had been promoted. And when some temporary pay rises were made to two white members of her team, a black colleague was not offered one until she raised a grievance about it.
Judges also found Ms Paxton, who is white, “excluded” Ms Cox during the recruitment for two vacant roles, believing she “went to some length to circumvent” her.
The tribunal ruled Ms Paxton – who is now an associate director of nursing in the West Yorkshire integrated care system – had created an “intimidating and hostile and humiliating environment” for Ms Cox, which had the purpose and effect of unlawful harassment.
The tribunal also upheld Ms Cox’s complaint of detriment for whistleblowing, including for raising concerns that members of her team were sitting on continuing healthcare “independent review panels”, which she pointed out was a breach of independence and legal obligations.
At the time the concern was “dismissed” as Ms Paxton had “cleared it with legal”, but, according to the judgement, there was no evidence of this.
Ms Cox raised a formal grievance with NHSE, which constituted a protected act for victimisation and whistleblowing, and this was considered by NHSE.
NHSE investigations did not address race discrimination
But judges said it did not address the “underlying issue” of race discrimination which she raised. Aspects of NHSE investigations into Ms Cox’s concerns were “woefully inadequate”, it said.
In particular, the tribunal took issue with the outcome of a grievance procedure, where “any possibility of race discrimination is not addressed beyond a short statement to the effect that 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” and failed to take into account “certain actions may have been subconscious bias or racially motivated”.
It was also critical of the outcome of a subsequent grievance appeal.
While this partly upheld Ms Cox’s grievance, the tribunal pointed out this was not communicated to the line manager who was the subject of the complaints, meaning “the grievance outcome was not effectively actioned”.
It added an apology to Ms Cox from regional chief executive Bill McCarthy which was “couched in terms of “work[ing] closely with … HR to make sure that lessons are learned” rings hollow - there was no evidence as to how this suggestion had been put into effect”.
The tribunal judgement stated that Ms Cox is still employed by NHS England, but it is not known if she is currently working or in what role.
NHS England told HSJ it did not want to comment about any individuals at this stage, but said: “No one should ever experience racism, discrimination or prejudice at work and NHS England will fully consider the learning from the employment tribunal.”
West Yorkshire ICS said it did not wish to comment.
Ms Cox was represented by the Royal College of Nursing’s counsel during the employment tribunal, with the union calling it a “landmark” case.
She said: “I am clearly delighted with the outcome. I was confident that the evidence put forward demonstrated a pattern of 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.”
Ferguson Doyle, a senior legal officer and solicitor for the RCN in the North West, and who supported her during the tribunal, said: “This is a landmark case in many ways, especially given that the employer’s mishandling of Michelle’s grievance and appeal was found to be acts of discrimination in themselves.
“In this case, the evidence was clear and Ms Cox had an extremely credible case against her employer.”
UPDATED: This article has been updated to include comments from Ms Cox and the Royal College of Nursing