The claimant is a Black African mental health nurse working for the NHS (the respondent) in a secure residential unit for men sectioned under the Mental Health Act. During his employment he was subject to a serious assault by a patient along with racial abuse which included a patient referring to him as “f*cking black” and was threatened “I am going to stab you”. Following the incident a report was completed but it did not have any mention of racist abuse.
The following month the claimant then raised a grievance about the incident, stating that hate crimes were being committed against staff on a daily basis and were going unpunished by the NHS. He also alleged that they had failed to safeguard black staff members as a result of its inadequate incident reporting systems. The claimant’s grievance was not upheld, and he went on to make claims in the Employment Tribunal of direct and indirect race discrimination and racial harassment.
At the Employment Tribunal they did not uphold the Claimant’s claims of harassment and direct discrimination because the Respondent’s failings (not ensuring that all incidents of racial abuse were reported by employees) were not themselves related to race. However, it did hold the Respondent liable for indirect discrimination.
The ET reported that a perception had formed amongst many black staff that reporting every single racist incident was pointless. The ET held that the failure to create a culture in which all such incidents were formally reported contributed to an environment in which racial abuse from patients was more likely to occur.
The Claimant appealed the ET’s decision to not uphold his direct discrimination and harassment claims to the Employment Appeal Tribunal.
The EAT upheld the ET decision that the NHS was not liable for harassment, it was not enough that the harassment related to race. The Respondent’s action or inaction had to be related to race and on the facts of this case it was not.
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