Ms G Trif v NHS Hull Clinical Commissioning Group and others: 1803196/2021 and 1801111/2022
| Jurisdiction | England & Wales |
| Judgment Date | 20 March 2023 |
| Date | 20 March 2023 |
| Published date | 31 March 2023 |
| Court | Employment Tribunal |
| Subject Matter | Race Discrimination |
| Citation | 1803196/2021 and 1801111/2022 |
Case No: 1803196/2021
1801111/2022
1
EMPLOYMENT TRIBUNALS
Claimant: Ms G Trif
Respondent: NHS Hull Clinical Commissioning Group (1)
Ms S Lee (2)
Ms M Stephenson (3)
Heard at: Hull On: 20, 21, 22, 23, 24, 27 & 28 February
and 1, 2 & 3 March 2023
Before: Employment Judge Miller
Mr K Lannaman
Mr D Wilks OBE
Representation
Claimant: Mr D Patel – counsel
Respondent: Mr D Bayne – counsel
JUDGMENT having been given on 6 March 2023 and sent to the parties and
written reasons having been requested in accordance with Rule 62(3) of the
Employment Tribunals Rules of Procedure 2013, the following reasons are
provided:
REASONS
1. The claimant was employed from 22 February 2021 to 4 November 2021 by
the first respondent as an Equality and Diversity Manager.
2. The first respondent (the CCG or Hull CCG) was, at the relevant time, a
Clinical Commissioning Group with responsibility for commissioning
services from health providers, including GPs, in Hull. Since the time this
claim was about, there has been a reorganisation and what was Hull CCG
is now part of a wider organisation called the NHS Humber and North
Yorkshire Integrated Care Board. This new organisation also includes what
was formerly North Lincolnshire Clinical Commissioning Group.
3. The second respondent, Ms Susan Lee, was the claimant’s line manager
and the Associate Director of Communications for the Hull area at the
Case No: 1803196/2021
1801111/2022
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relevant time. She was part of the panel that interviewed and appointed the
claimant to the role. Ms Lee was also the Equality, Diversity and Inclusion
Lead (EDI Lead) for the CCG. Ms Lee was line managed by Ms Erica Daley
who was the Chief Operating Officer for Hull CCG.
4. The third respondent, Ms Moira Stephenson, was employed at the relevant
time by the CCG as a Human Resources Manager. She was line managed
by Emma Kirkwood who was the Head of HR.
5. The claimant made a claim of race discrimination and breach of contract on
14 June 2021, while she was still employed by the respondent. She made a
further claim for race discrimination and victimisation on 28 February 2022.
6. There was a case management hearing on 24 May 2022 at which the
issues were identified and recorded by EJ Morris. Those are the issues that
we have determined at this hearing. They are claims of Direct Race
Discrimination, Harassment related to race, victimisation and breach of
contract.
7. The breach of contract claim was included in the first claim while the
claimant was still employed. It was agreed that the Tribunal does not have
jurisdiction to consider a breach of contract claim while a claimant is still
employed. The claimant made an application to amend her second claim on
25 April 2022 to include that claim for breach of contract which we allowed
as that application was not opposed at this hearing.
8. There are 18 specific allegations of harassment and direct discrimination
and additional allegations of victimisation. The allegations and issues are
attached as appendices to these reasons.
9. At the start of the hearing, the claimant was invited to withdraw the claims
against the second and third respondents on the basis that the first
respondent would be liable for any successful claims. The claimant declined
to do so and, in our judgment, the circumstances in which the tribunal can
remove parties under rule 34 are limited to those circumstances where it
appears the respondents are wrongly included. This is plainly not the case
in this case as the claimant does have the right to bring claims against
named individuals under s 110 Equality Act 2010.
10. We have been provided with a substantial agreed bundle of documents and
additional documents which we admitted for reasons given at the time. We
have had a witness statement from the claimant and from each of the nine
witnesses on behalf of the respondent. The respondent’s witnesses are:
a. Ms Susan Lee – Associate Director of Communications and
Engagement for the Hull Area and second respondent
b. Ms Moira Stephenson – Human Resource Manager and third
respondent
c. Ms Emma Kirkwood – Head of Transformational HR
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d. Ms Helen Davis – Now Interim Director of Nursing and Quality for
the North Lincolnshire Place and at the relevant time Deputy
Director of Nursing and Quality with the delegated lead, for the
Equality, Diversity and Inclusion portfolio within North Lincolnshire
CCG
e. Ms Amanda Heenan – Equality, Diversity and Inclusion Consultant
for the first respondent
f. Ms Clare Linley – Formerly Strategic Lead for Nursing and Quality
and Hull and North Lincolnshire CCGs
g. Ms Karen Marshall – Formerly Lay Member for NHS Hull CCG with
responsibility for Audit, Remuneration and Conflicts of Interest
h. Ms Toni Yel – Head of Integrated Commissioning and CCG Covid
Vaccine Place Lead for Hull CCG
i. Ms Alexandra Seale – Formerly Chief Operating Officer at North
Lincolnshire CCG.
11. All witnesses attended and gave oral evidence.
12. We have also heard and considered detailed submissions from Mr Patel on
behalf of the claimant and Mr Bayne on behalf of the respondent.
13. We extend our gratitude to the parties and their representatives for the
proportionate and courteous way in which the cases for the parties have
been presented.
Findings of fact
14. We have not made findings about every disputed issue. As far as possible
we have limited our findings to matters directly related to the list of issues.
We have also had regard to the surrounding circumstances in reaching our
conclusions, even if we have not referred to them directly in our judgment.
Where it is not explicit, we have decided any disputed issues of fact on the
balance of probabilities.
15. The claimant applied for the job of EDI manager and she was interviewed,
remotely on MS Teams, on 20 January 2021 by a panel comprising of Ms
Lee, Ms Helen Davis and Ms Amanda Heenan. Ms Heenan was, at the
relevant time, a consultant who had been engaged by the CCG to provide
specialist EDI advice. She had worked with the CCG for many years. Ms
Davis was at the relevant time the deputy director of Nursing and Quality for
North Lincolnshire CCG. She was the EDI lead for that CCG.
16. The reason that Ms Davis was on the interview panel was because
although the claimant was employed by Hull CCG, her job was to be split
between Hull and North Lincolnshire CCG.
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