Autem vel eum iriure dolor in hendrerit in vulputate velit esse molestie consequat, vel illum dolore eu feugiat nulla facilisis at vero eros et dolore feugait

3 Things We Learnt In Law This Week (24 January 2019)

Tribunal Awards NHS Manager £1m In Racial Discrimination Case

A former NHS trust manager who was unfairly dismissed and suffered racial discrimination has been awarded a reported £1 million by London South Employment Tribunal.

Richard Hastings, an IT manager at King’s College NHS Foundation Trust, was dismissed for gross misconduct in October 2015 after he was accused of assault following a dispute with a van driver in his workplace car park.

The ET ruled the investigation into the incident was “fundamentally flawed” due to unconscious racial bias.

It found that opportunities to collect further evidence to support Hastings’ claims of innocence were repeatedly missed and that Hastings – who was of African Caribbean origin – was treated less favourably than a white counterpart would have been. Investigators were said to have made up their minds about his guilt and only pursued evidence which would support this.

The ET heard that on 29 July 2015, Hastings was driving into the hospital car park when he approached a van that had sped aggressively past him, intending to note its registration number. The driver, named in court documents as Mr Archard, was allegedly abusive toward Hastings, swearing at him, “using the c-word,” and calling him “f***ing stupid”.

In his statement, Hastings recalled a second individual standing between him and the number plate. After giving Archard his name, the passenger allegedly kept insisting “that’s not your real name”, taken by Hastings to mean “he would not have such an ‘English sounding’ name for a black man”.

Hastings admitted the parties got into a “war of words” and he swore at Archard, but said in his defence he felt very threatened. Archard reportedly said: “What are you? Are you a f***ing manager?” and when Hastings confirmed that he did work at the hospital, Hastings stated that Archard replied: “Look! They’ll let anything happen here.”

Hastings admitted he called Archard a “f****ing idiot” and a “pussy”. He grew concerned the incident was turning physical when Archard placed his hand on Hastings’ forearm. Hastings admitted he “lifted his arm to extricate himself” and made contact with the contractor’s face, but denied having hit or punched him.

Hastings called the hospital’s security office for help but no record of the phone call was logged, although the office confirmed they had received the call. No one came to his aid.

Once the van drove away, the incident was reported. A member of security, named in court documents as Mr Taylor, contacted Archard, who said he believed he was the wronged party. Taylor told the tribunal that following the conversation, he viewed the CCTV of the incident and from this formed the view that Hastings had “pushed or punched” Archard.

In a statement given to aid the investigation, Archard claimed Hastings had bent down, sniffed his head and said that he “smelt like a dirty ****”. He also alleged Hastings said that he had “beaten and taken apart people like him”.

The director of ICT, Mr Sweeney, suspended Hastings on 31 July 2015. During the hearing, Sweeney admitted Hastings had said there was a racial element to the incident, but Sweeney said he had assumed it would be picked up in the investigation led by Taylor.

The “fundamentally flawed” investigation saw Hastings “interrogated” and the investigatory report “worded in a manner that called into question the veracity of [Hasting’s] evidence.” The tribunal found the trust guilty of unfair dismissal and racial discrimination.

“[Hastings] was treated less favourably because of race”, wrote Judge Sage. “We form this conclusion from the fact that [the] sole focus was on the claimant’s conduct. He was assumed to be the aggressor. The white witnesses were accepted to be the victims.”

Jess Varnish Loses Employment Tribunal Legal Case Against British Cycling

Jess Varnish has lost her legal battle to prove she was an employee of British Cycling and UK Sport in a ruling that has been greeted with relief from those that fund Olympic sport.

The 28-year-old former member of the British Cycling team, had brought the test case to an ET to be able to sue both bodies for sex discrimination and wrongful dismissal.

Varnish alleged in 2016, after being dropped from the team, that she was the victim of bullying and sexist language from Shane Sutton, who was the technical director of British Cycling. An inquiry found the team had a “culture of fear”. Had Varnish been successful, it could have led to changes in how UK Sport funds British athletes; in effect it would have had to treat them as employees.

Her barrister claimed the “extreme control” exercised by British Cycling and UK Sport during her time as a rider was similar to that used by an employer. The body’s legal team argued the funding was more like a university grant. Athletes can receive up to £28,000 per year. Friends of Varnish said that she was disappointed but believes the changes to British Olympic sports since she went public three years ago mean that athletes are now much better treated.

UK Sport said in a statement: “The verdict provides reassurance that the relationship between UK Sport, national governing bodies and athletes is as it has always intended to be — to provide the means and support for talented athletes to achieve their dreams of realising success. Whilst this verdict did not find Jessica Varnish to be an employee or worker of UK Sport or British Cycling, we have already taken action to strengthen the duty of care and welfare provided to athletes.”

Theatre Company In Harassment Case To Face Intervention From Equality Commission

A theatre company that was at the centre of a sexual harassment case last year has become the first in the industry to sign a formal agreement with the Equality and Human Rights Commission, promising to better protect its employees.

Following an ET in 2017, Rainbow Theatre Productions was ordered to pay £10,500 to Helen Haines, an actor in one of its shows, after the judgement found she was sexually harassed by colleagues while working for the theatre-in-education company.

EHRC, the UK’s national equality body, has used its powers under the Equality Act to enter into a legal agreement with Rainbow to ensure that its workers are better protected against harassment in future and that it is better equipped to deal with complaints.

The landmark agreement marks the first time a company from the theatre industry has become subject to the conditions of a section 23 agreement, EHRC told The Stage.

The terms mean that Rainbow is required to undertake training on sexual harassment, prepare an equality and diversity policy, an anti-harassment policy and disciplinary and grievance procedures.

It must also ensure staff members are aware of the policies and make clear what constitutes acceptable conduct at work.

The company will be monitored by EHRC over the next year. If the commission is not satisfied, it will consider using its wider enforcement powers, which include investigations and court action.

EHRC chief executive Rebecca Hilsenrath said: “No one should ever feel threatened or unsafe in their working environment. It is up to the employers to protect their staff from sexual harassment in the workplace. Where organisations are failing to do this, we will step in and ensure action is taken.”

She added: “We are pleased that Rainbow recognises that more needs to be done to protect its staff and we will continue to work with the company as it puts in place the necessary steps to improve conditions for its staff.”

EHRC said it would be reviewing recent sexual harassment employment tribunal judgements on a rolling basis to determine whether further action was needed, and that several other companies – outside the theatre industry – were currently under consideration.

SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Emma Roberts
Latest posts by Emma Roberts (see all)
Emma Roberts

Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.

%d bloggers like this: