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Essex NHS trust discriminated against staff member to protect older colleague

Makbool Javaid, Partner - Simons Muirhead Burton

In the case of Mrs C Sawyers v East Suffolk and North Essex NHS Foundation Trust an NHS hospital trust covering east Essex 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 for harassment related to age in the aftermath of a complaint process that stemmed from an incident in 2019 when 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 claimant that another East Suffolk and North Essex NHS Foundation Trust sonographer Lorraine Moroney was going to scan the patient – identified as MG – or that she should wait for Ms Lynn.

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.

“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 the claimant’s complaints about Ms Lynn and Ms Moroney’s conduct on that day on March 25 2019.

The tribunal has concluded, in a judgement on March 25 2022, that Ms Macey, head of midwifery, who was appointed as investigator, wanted to shut down the claimant’s Datix complaint in order to protect Ms Lynn from the consequences of her conduct towards a younger member of staff – the claimant had repeatedly and clearly stated that she wanted to make a formal complaint. HR understood from the Datix complaint that there could be potential disciplinary action required.

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.”

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