Tribunal finds ESNEFT discriminated based on age during complaint fallout
- Credit: SARAH LUCY BROWN
An NHS hospital trust has been found to have unlawfully discriminated against a member of staff to protect an older colleague.
Sonographer Cebonie Sawyers won her claim against East Suffolk and North Essex NHS Foundation Trust (ESNEFT) for harassment related to age in the aftermath of a complaint process dating back to 2019.
On March 25 2019 a midwife – Beverly Lynn – verbally attacked Ms Sawyers after she carried out a scan on Ms Lynn’s daughter-in-law in her absence.
This arose from miscommunication – nobody told the Ms Sawyers that another sonographer, Lorraine Moroney, was going to scan the patient – identified as MG – or that she should wait for Ms Lynn.
The tribunal heard that Ms Moroney was so unsettled by Ms Lynn’s conduct when she found out the scan had taken place without her that she considered calling security.
It went on to hear that Ms Sawyers was startled into silence while Ms Lynn continued to shout and point at her saying words to the effect of “I am a midwife”, that Ms Moroney was to do the scan, and “can you not read?”.
The judgement from Employment Judge Russell, following a hearing in August and September last year, said: “The Tribunal found Ms Lynn to be an unsatisfactory witness. In cross-examination, her manner towards the claimant was abrasive, sarcastic and, at times, hostile.
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“She displayed a sense of entitlement that she should have been in control of arrangements for the scan. On her own account, Ms Lynn was furious that things had not gone according to her plan and appeared to regard herself as the wronged party despite accepting that she had made the 'can you not read' statement and being, in her words, emotionally upset with the claimant.”
The issues in the claims of direct discrimination because of race or age and of harassment related to race or age all arise from the handling of Ms Sawyers' complaints about Ms Lynn and Ms Moroney’s conduct on March 25, 2019.
Cover manager Clarissa Gordon-Clement encouraged Ms Sawyers to make an electronic complaint.
However, the tribunal found that while Ms Gordon-Clement encouraged Ms Sawyers to make an electronic complaint she did not advise her that it could be raised more seriously as a grievance.
Ms Sawyers resigned on October 7, 2019, after a protected period in which she was unhappy with the way the trust was failing to deal with her formal complaints.
In her resignation letter, she referred to the incident on March 25, 2019, and the subsequent failure to deal with her formal complaints.
The trust accepted that in hindsight it should have acted more quickly and that mistakes were made managing the grievance poorly and taking months to start it.
In a judgement on March 25, the tribunal concluded that Ms Macey, head of midwifery, who was appointed as investigator, wanted to shut down the electronic complaint in order to protect Ms Lynn from the consequences of her conduct towards a younger member of staff.
Judge Russell added: “Throughout, we conclude, the focus of the respondent and in particular Ms Macey was to press for an informal resolution to protect Ms Lynn, a more senior and older employee, and not to accede to the claimant’s repeated requests for a formal investigation.
“This culminated in the closure of the grievance on September 17 2019 on the incorrect basis that the claimant had not completed a form which was not required by the grievance policy then in force.”
He added: “In deciding whether the conduct was related to a protected characteristic, the Tribunal concludes that the relevant part of the factual matrix is the respective seniority of the claimant and Ms Lynn; given that Ms Lynn had been working for the respondent since before the claimant had been born, seniority was related to age.
“There was an attitude that the claimant was overreacting and should just accept the apology pressed upon her. There was an evident reluctance by all concerned to treat this as a formal complaint or to subject Ms Lynn to possible disciplinary action for her inappropriate behaviour towards the claimant."
“The Tribunal concludes that this was because of the claimant’s more junior and younger position by reference to an older and more senior member of staff, Ms Lynn."
However, the tribunal concluded that there was no reason to believe the poor handling of the complaint was due to racial discrimination.
Ms Sawyers will be entitled to a remedy. She seeks compensation and recommendations, but because she is not employed by the trust it may be outside the powers of the tribunal.
The remedy hearing will be listed for one day, as soon as possible after August 1.
Giles Thorpe, Chief Nurse at East Suffolk and North Essex NHS Foundation Trust, said: “We are extremely sorry for the distress Ms Sawyers has experienced and have significantly strengthened the way in which we manage concerns raised by colleagues.”