Michelle Cox from Liverpool, was employed by NHSE&I Commissioning as a Continuing Healthcare Manager, based in Manchester from May 2017. She describes herself as a black woman and was the only black nurse in the employer’s North region in 2018, when she was appointed as the regional lead to the Chief Nursing Officer’s Black Minority Ethnic Strategic Advisory Group.
At an employment tribunal in Manchester late last year (2022), the tribunal heard evidence that Ms Cox, between 2019 and 2021, had faced discrimination, harassment and victimisation from her employer and her whistleblowing claims had not been upheld after she raised a grievance and appeal.
After deliberation, the tribunal has now (on 15 February 2023) unanimously found in favour of Ms Cox’s claims.
During the hearing, NHSE&I called upon a number of witnesses to give statements. In the case of her line manager Ms Gill Paxton, Employment Judge Batten described her evidence as ‘less than credible’. Saying: ‘Her responses to cross-examination were often unhelpful, evasive or defensive. At times, she sought to avoid answering questions from Counsel for the claimant or did not explain her evidence despite it being probed.’
The tribunal heard how Ms Cox faced direct discrimination by her manager on several occasions, with the tribunal hearing evidence of her being purposely excluded from team events, including at least two team away-days that were arranged for occasions she couldn’t attend. One such incident was scheduled for a time she was due to be at the Chief Nurses Office’s Black Minority Ethnic conference.
On another occasion, Ms Cox was also not informed that a team member, junior to herself, had been promoted and ‘was acting up,’ despite a thorough, fair and proper recruitment process not being followed. This was also contrary to anti-discrimination recruitment practices. Her manager then excluded her from recruiting to new senior posts in her team.
The tribunal heard that Ms Cox raised concerns about work practices throughout her employment and was dismissed or discredited by her manager. On one occasion, an issue was raised by Ms Cox regarding Independent Review Panels, which her team members were ‘sitting on’. Ms Cox pointed out that this was a breach of independence and legal obligations. However, her manager dismissed her claim and told her she ‘had cleared it with legal’. There was no evidence to suggest this had ever happened.
The final insult, and most alarmingly, was confidential information about Ms Cox’s health being discussed by her manager with a team member during which she encouraged the team member to report concerns she had regarding Ms Cox.
Having raised an internal grievance regarding the process, the tribunal heard evidence that the employer failed to uphold her grievance despite the underlying findings made. Her evidence regarding discrimination at her grievance, which also included evidence of another BME employee only getting an equivalent pay uplift after it was highlighted her white counterpart had received the same, was dismissed in the internal processes.
Ms Cox’s role on the Chief Nurse Black Minority Ethnic Strategic Advisory Group was to make sure issues impacting on BME staff, and particularly BME nurses, are raised if there are specific issues pertaining to recruitment, retention, career pathway and staff experience of BME staff.
Ms Cox therefore questioned the organisation as to how she could fulfil this role when she was aware ‘that the very issues that I speak publicly about, trying to eradicate poor practices, are currently happening to myself within my team with a potential to impact on my professional reputation and as a registrant.’
On examination of the grievance process for the purposes of the tribunal case, it was deemed that outcome was ‘inadequate in a number of respects, particularly because it failed to examine the claimant’s complaint, the essence of which was that her treatment (by Ms Paxton) was race discrimination.’
Ms Cox, who was represented by the Royal College of Nursing’s (RCN) Counsel at the employment tribunal, said: “I am clearly delighted with the outcome. I was confident that the evidence put forward demonstrated a pattern in discriminatory behaviours due to the colour of my skin.
“It sadly proves that institutional racism is still present in organisations, despite the efforts to make it more inclusive for people of all races and backgrounds.
Michelle has a long reputation of raising issues of social injustices within nursing platforms to amplify the unheard voices of staff and patients.
She continued: “I want this outcome to send a strong message to anyone facing similar behaviour in the workplace, particularly due to race, to have the courage to speak up. Little too often does this behaviour just become the ‘norm’ for many colleagues, it needs to be challenged more often and organisations need to work towards a no tolerance policy where discriminatory attitudes, behaviour and racism is concerned.
“I thank the Royal College of Nursing for pursuing this case on my behalf and for supporting me throughout it. I am hopeful to now put this stressful and upsetting period of my life behind me and hope this landmark outcome leaves a legacy for change for staff experiencing race discrimination. I now wish to take time to heal and recover.”
Estephanie Dunn, Regional Director for the RCN in the North West, said: “Far too few of these cases reach this point and I am proud of the regional legal team who have progressed and fought this case on behalf of both Ms Cox and of other BME colleagues who are too afraid to speak up.
“I was personally shocked to hear some of the evidence in the case and the treatment Ms Cox has faced from a flagship publicly funded employer who should be setting standards.
“We hope this ruling now drives change and provides greater accountability for poor behaviours and actions. We need more people like Ms Cox to speak up and challenge appalling discriminatory behaviour that is happening every day to BME colleagues who are ultimately stunted in or lose their career paths as a result.”
Ferguson Doyle, Senior Legal Officer and Solicitor for the RCN in the North West who supported Ms Cox’s case, added: “This is a landmark case in many ways, especially given that the employer’s mishandling of Michelle’s grievance and appeal were found to be acts of discrimination in themselves. In this case the evidence was clear and Ms Cox had an extremely credible case against her employer.
“It is also credit to Judge Batten who has taken the time to fully examine and document the findings for each piece of evidence and determine this damning verdict against NHSE&I. Reading the final judgement just demonstrates the seriousness of the issues and discrimination Ms Cox faced in the workplace and it is clear she has been extremely let down by her employer.”