Mr Z v Medway NHS Foundation Trust: 2300285/2022

Case No. 2300285/2022 1 EMPLOYMENT TRIBUNALS Claimant: Mr Z Respondent: Medway NHS Foundation Trust HELD AT: London South (CVP) ON: 4-8 December 2023 BEFORE: Employment Judge Hart, Mr Sheath, Mr Huggins REPRESENTATION Claimant: Ms Bennett (lay representative) Respondent: Mr Jackson (counsel) The Tribunal Orders that: 1. the identity of patient A and the claimant be anonymised; and 2. the names of the wards that patient A stayed on and the identity of those who cared for her and / or those who worked with the claimant on those ward/s are also to be anonymised. This information should not be disclosed to the public or included in any publication for the duration of the lifetime of patient A and the claimant. This order is made under Section 11(a) of the Employment Tribunals Act 1996 and Rule 50 of the Employment Tribunal Rules 2013. RESERVED JUDGMENT The unanimous judgment of the Tribunal is that: 1. The claims for direct race discrimination do not succeed and are dismissed. 2. The claims for harassment related to race do not succeed and are dismissed. 3. The claim for indirect race discrimination does not succeed and is dismissed. 4. The claims for direct sex discrimination do not succeed and are dismissed. 5. The claims for harassment related to sex do not succeed and are dismissed. Case No. 2300285/2022 2 REASONS INTRODUCTION 1. The claimant is a registered nurse who is male and of Asian Filipino background. He categorises himself as Black Asian and Minority Ethnic (BAME). In the course of his work a female patient (patient A) accused him of a serious sexual assault. The claimant’s claim arises out of the respondent Trust’s decision to report the claimant to the police, suspend him from work and refer him to the Nursing and Midwifery Council (NMC) (his professional body) and a claim that the respondent failed to progress his subsequent grievance. He claims that these decisions were direct race and / or sex discrimination / harassment or indirect race discrimination (referral to the NMC only). 2. It is important to state at the outset that whilst the allegation against the claimant was a serious one, he has not been charged with any criminal offence, the police investigation resulted in no charges against him and the internal investigation found no case to answer. He is now back at work. The case presented to us by both parties was on the basis that the claimant had been falsely accused and was therefore innocent. It was not disputed that this has understandably caused the claimant considerable distress and upset. Nothing in this judgment is intended to cause him further distress and upset. He came across at all times as an honest and open witness. MATTERS ARISING DURING THE HEARING 3. The claimant was represented by Ms Bennett, a lay (non-legal) advocate. The respondent was represented Mr Jackson, counsel. The claimant only attended on days 1 and 2 of the hearing; this was his choice and his representative continued the hearing in his absence. The hearing was conducted by CVP. 4. We were provided with the following documents: 4.1 An initial hearing bundles comprising of 431 pages. During the hearing additional pages were added to comprise a bundle of 468 pages. The references to page numbers in this judgement are to the pages in this bundle. 4.2 Six witness statements. 4.3 A respondent’s chronology, cast list and reading list. The claimant confirmed that these had been agreed. 5. The claimant gave evidence on his on behalf and called Dr Emmanuel and Mr Fernando. The respondent called Ms Streatfield, Ms Fordham and Ms Wilson. 6. At the commencement of the hearing on day 1, we dealt with a number of preliminary issues including agreeing a hearing timetable, agreeing a list of issues and hearing submissions on whether to impose a restricted reporting or other privacy orders (see below). 7. Before we adjourned to read into the papers, we went through the documents Case No. 2300285/2022 3 with the parties’ representatives and confirmed that we all had the same documentation and could access it. We adjourned to read into the papers with the parties warned to attend at 2pm. The claimant was then called to give evidence and sworn in. On being asked whether he had the hearing bundle and statements in front of him, the claimant stated that in fact he had an older version of 385 pages. Ms Bennett then informed us that in fact she also only had an older version of the bundle. She confirmed that she had received the email from the respondent solicitors dated 29 November 2023 at 12:37 with the updated version but claimed that there was no attachment. We decided that the hearing should be adjourned to the next day, so that the claimant and his representative could obtain the up-to-date hearing bundle and familiarise themselves with the documentation. Further that the claimant should be taken off oath. The respondent raised no objection. 8. As part of the preliminary discussions on day 1 both parties were asked if any reasonable adjustments were required in relation to the conduct of the tribunal hearing; both representatives responded no. At the end of day 2 Ms Bennett raised that she had an unspecified disability and that that she had a personal assistant to help her navigate the documentation. She requested extra time to contact her assistant to help locate a document. She was given this extra time and was given further time during the rest of the hearing to locate documents. 9. On day 3 Ms Bennett failed to attend the afternoon hearing due to commence at 13:50, following the lunch adjournment. At 13:54 Ms Bennett sent an email to the respondent (which was then forwarded to the tribunal) stating “I have a family emergency. I had to leave my house immediately and cannot continue the hearing this afternoon. Im very sorry for inconveniences (sic)”. We treated this as an application to postpone to the next day; the respondent raised no objection to the request being granted and we agreed to adjourn to 10am the next morning. The claimant was informed of this decision by email (copied to the respondent), and asked to confirm her attendance at 10am and the nature of the family emergency. She was also advised of the powers available to a tribunal if a party does not attend and is not represented. The next day Ms Bennett attended; she apologised stating it was a “dire emergency”, but provided no further details. We decided to proceed without making any orders against the claimant, or his representative, on this occasion. 10. The evidence was completed at 16:05 on day 4. The representatives were asked as to their preference whether the tribunal should hear their submissions that day or at the beginning of day 5. Mr Jackson, on behalf of the respondent preferred to give oral submissions immediately. Ms Bennett, on behalf of the claimant, preferred to give her submissions the next day and Mr Jackson did not object to this. We agreed since this gave Ms Bennett the evening to consider her submissions. Following submissions, judgment was reserved, due to there being insufficient time to deliver an oral judgment. 11. During our deliberations Ms Bennett sent a document entitled “closing submissions”. This had not been copied to the respondent. The tribunal forwarded the email to the respondent but received no response, and therefore we did not consider this document as part of our deliberations. Having Case No. 2300285/2022 4 subsequently looked at this document we can confirm that it reflects the oral submissions made by Ms Bennett at the hearing, of which we had a full note. MATTERS ARISING FOLLOWING THE HEARING 12. On 10 December 2023, following the conclusion of the hearing and our deliberations, Ms Bennett applied for the tribunal to consider some additional documents including a table compiled by Ms Bennett comparing the Chief Nurse table and HR table and 36 pages of documents “missing” from the hearing bundle. The tribunal were unable to open these documents, therefore on 13 December 2023 I ordered the claimant to resend the “missing” documents along with an explanation as to why they were relevant by 22 December 2023. The parties were informed that the tribunal had already compared the tables as part of its deliberations. The respondent was given a right of reply by the 13 January 2024. On 6 February 2024, the direction for the respondent’s response was varied to 13 February 2024, because Ms Bennett had failed to copy in the respondent in her response dated 22 December 2023. On 19 February 2024, no response having been received from the respondent, I agreed that we would redeliberate to take into account the “missing” documents; no further hearing being required. We confirm that having considered these documents our decision remains as set out in this judgment. Whilst we accept these documents provide some background information they do not add anything to the central issues in dispute. RESTRICTED REPORTING AND PRIVACY ORDERS The Law 13. This case concerns an allegation by a patient A against the claimant of a sexual assault which is an offence under section 3 of the Sexual Offences Act 2003. 14. Section 1 of the Sexual Offences (Amendment) Act 1992 (“SOAA 1992”) provides that: “Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed”. Sexual assault is one of the relevant offences to which the SOAA 1992 applies. Accordingly as the alleged victim of the offence of sexual assault patient A is entitled to anonymity for life There is no requirement under SOAA 1992 for the sexual offence to be proved; it is sufficient that an allegation has been made. Contravention of section 1 is a criminal offence: section 5(1). An employment tribunal...