The Equality Act 2010 provides protection for staff against discrimination on the grounds of race, colour, nationality, and ethnic or national origins. This includes protection against direct discrimination, indirect discrimination, harassment and victimisation.

The Equality Act also imposes a general equality duty on public sector organisations to have due regard to the need to eliminate unlawful discrimination, harassment, and victimisation; advance equality of opportunity between people who share a protected characteristic and those who do not; and foster good relations between people who share a protected characteristic and those who do not.

NHS trust leaders have a duty to ensure that their disciplinary procedures are fair and non-discriminatory, and that employees are not unfairly disciplined on the basis of their race or ethnicity. Discrimination, whether direct or indirect, does not have to be intentional to be unlawful.

Learning from recent cases

Recent employment law cases have shone a spotlight on race discrimination within the NHS.

The cases of Michelle Cox v NHS Commissioning Board, Samira Shaikh v Moorfields Eye Hospital NHS Foundation Trust and Ms P Mntonintshi and Ms U Jama v Barking Havering & Redbridge University Hospitals NHS Trust all received considerable publicity and have focused attention on the practices of their employers. It is difficult to estimate the costs and time involved in defending each high-profile case, but even in cases where the financial remedy may not be high, both will be significant. Running alongside the moral case for taking steps to close the disciplinary gap, high-profile, reputation damaging and expensive cases against NHS organisations provide further incentives to reduce the inequality.

Cox v NHS Commissioning Board, Shaikh v Moorfields Eye Hospital NHS Foundation Trust and Kweyama v Central and North West London NHS Foundation Trust (though not about disciplinary action), illustrate how the employment tribunals approach allegations of discrimination.

In an employment tribunal, once an employee has provided sufficient evidence from which the tribunal could conclude that discrimination has occurred (prima facie), it is for the employer to discharge the burden of proof by providing a sufficient explanation of its action (or inaction) which is not discriminatory. If an employer is not able to do this, the tribunal will infer that discrimination has taken place and the claim will succeed.

For example, in the Michelle Cox case, the employment tribunal, having made findings of fact, inferred discrimination in part because the employer failed to adequately explain the behaviour towards Ms Cox. This included a failure to explain why a grievance panel had not properly considered the possibility of racism towards Ms Cox and her line manager's repeated poor behaviour towards her.

In the context of the disciplinary gap, employers need to adequately explain the basis upon which a disciplinary case was initiated and that it was conducted in a way that was not tainted by discrimination.

In the case of Hastings v King's College Hospital NHS Trust (KCH), the tribunal awarded Richard Hastings £1m in relation to his successful claim. Mr Hastings worked as an ICT Infrastructure Analyst for KCH. Following an altercation with three white contractors in the car park on KCH premises, Mr Hastings was taken through a disciplinary process which led to his dismissal for gross misconduct.

The tribunal found that the disciplinary investigation was 'tainted by unconscious racial bias'. It noted that the complainants were referred to as 'victims' and the investigator accepted their evidence without challenge and failed to record that Mr Hastings had been assaulted first by a complainant. There had also been a failure to investigate Mr Hasting's complaints of racial abuse. Mr Hastings succeeded in his unfair dismissal and direct race discrimination claims.

The good practice set out by NHS England in Learning lessons to improve our people practices, although not directly aimed at removing the disciplinary gap, provides useful guidance on employee relations processes. As the guidance sets out, ensuring objectivity, focusing on developing a restorative just and learning culture, applying a rigorous decision-making methodology, assigning sufficient resources and ensuring board level oversight are all important elements of good practice.