ET Rules In Favour Of Paediatric Nurse Who ‘Blew The Whistle’ On Race-Based Shift Allocation At NHS Trust

An Employment Tribunal (ET) has recently ruled in favour of a whistleblower who reported instances of racial discrimination to her employer and was then suspended from work as a result.

Miss J Panahian-Jand v Barts Health NHS Trust and Barts Health Staff Bank: 3202418/2019

Case summary

Miss Panahian-Jand (the Claimant) was a Bank Nurse on the children’s ward at Whipps Cross Hospital in East London.

On 11th May 2019, whilst working on a night shift, the Claimant (who is white) was involved in a general discussion with her colleagues and manager, Heather Roberts, concerning the allocation of shifts (she commented that black colleagues were unfairly being given more work than white staff members). During the discussion she suggested that there should be more of an even split of shifts between groups of white nurses and nurses with an ethnic minority background.

To illustrate this, Miss Panahian-Jand “drew a triangle on a piece of paper to reflect a lack of mixing and included some initials of staff members”, the ET heard. This piece of paper was referred to as the “list” during the proceedings. The ET were also informed that the Claimant “…described groups on the ward divided by race: a group of white nurses; a black and ethnic minority group and some nurses who were in between”.

Following Miss Panahian-Jand’s comments, her manager asked her if she was raising concerns of race discrimination and asked if she wished to lodge a formal complaint. However, Miss Panahian-Jand said that she did not want to do so but wanted to make her manager aware of her concerns.

Two days after the discussion (13^th May 2019), a nurse, who was not present during the initial discussion, said to Ms Roberts that she was uncomfortable with the “list”, which implied that there had been discussions about it amongst ward staff members.

Consequently, Ms Roberts said to Miss Panahian-Jand that she should “stop engaging in conversations of that nature” in the future but if she wanted to make a formal complaint then she was able to. During the ET proceedings, the Claimant said that the instruction to stop discussing it further with her work colleagues was not an explicit order.

However, further nurses approached Ms Roberts in relation to comments made by the Claimant and it was decided that she had disregarded a managerial order to not discuss the “list”. As a result, Ms Roberts requested that the Bank Partners, who allocated work shifts, stop the Claimant from working on the paediatric ward whilst her misconduct was investigated. Miss Panahian-Jand had not been informed that she would be restricted from working on the ward if she continued to make these comments to her colleagues.

The Claimant was informed on 30^th May 2019 that she would not be working on the paediatric ward but would be able to work on other wards at the Trust. However, the Claimant was only qualified to work in paediatric care so the decision to prevent her from working on the children’s ward effectively stopped her from working for the Trust.

After she was informed of the decision, Miss Panahian-Jand then make a formal complaint of racial discrimination in respect of how patients and workloads were assigned on the paediatric ward. Within the complaint, the Claimant alleged that two of her colleagues had made racist comments to her, and that one of these colleagues had blocked her way during a confrontation in the hospital car park several days after.

Following the complaint, the Claimant was prevented from working on the ward, whilst her conduct was investigated by the Trust, but her two colleagues, who she referenced in her formal complaint, remained working.

The Trust, during their investigation into the Claimant’s conduct, found that there was insufficient evidence that she had breached Ms Robert’s instructions not to continue making these comments. As a result, the restriction placed on her working on the paediatric ward would be lifted.

However, within the Trust’s investigation they found evidence which supported Miss Panahian-Jand’s allegations of race discrimination on the paediatric ward. These findings were not disclosed to the Claimant.

The Trust informed the Claimant that it would determine her return to work date after a meeting in early 2020 but this meeting was missed by the Trust’s HR team without giving reasons. As a result, Miss Panahian-Jand did not return to the ward.

During the ET proceedings, it was revealed by Ms Roberts that she was worried about the Claimant’s return to the ward due to the anger and upset the race discrimination complaint made by her had caused. However, Ms Roberts went on to state that she had no involvement in the Trust’s decision for the suspension to remain in place.

The ET ruled in favour of the Claimant, finding that her formal complaint had amounted to a protected disclosure (otherwise known as whistleblowing) and that she had suffered detrimental treatment as a result of raising the problem. Miss Panahian-Jand has been awarded £26,000 in compensation.

Employment Tribunal Judge, Samantha Moor, commented:

For further information on the employment rights of workers who make protected disclosures have a read of this article.

Comment

Employers need to be alert that sometimes, employees making allegations will be sufficient to protect them as whistleblowers even if their concerns are not labelled as whistleblowing. Failing to recognise the seriousness of such concerns, and the protection that the employee is entitled to, is a relatively common omission in cases we see.