ABSTRACT
Below is a summary of the Employment Tribunal’s findings on the main complaints about promotion, refusal to transfer and constructive dismissal: The Employment Tribunal's findings
The unanimous decision of the second Employment Tribunal was that the Applicant was not constructively dismissed and the complaints of victimization and race discrimination were dismissed.
Failure to promotionMs Mubika did not ask for feedback from the panel and she had not complained about the unfairness of the interview at the time.
Ms Mubika did not complain either because she did not believe that the panel had decided not to promote her because of her race or because she feared the consequences, and she agreed during the hearing that one of the witnesses was telling the truth when he had said she had failed the interview. Therefore the conclusion is that Ms Mubika did not complain because she did not believe that she had grounds to do so.
80The complaint had no merit. The conclusion is that the interview panel's decision was not influenced by Ms Mubika's race or previous case or earlier complaints. One panel member (who had written in his original statement that he had heard about me) had no knowledge of the complaints. There was no evidence that the members of the panel had colluded against promoting Ms Mubika or that clinicians on the panel from ethnic minorities were not free to make their own assessment of Ms Mubika's suitability for the position.
The delay prejudiced the Organization. Interview notes kept by the panel members had been destroyed.
The Organization had learnt the lessons from the previous case and had taken steps to ensure that Ms Mubika and all other employees were treated equally and fairly. There may have been bad feelings in some quarters arising out of her previous case, but there was no evidence that the conduct of the Organization amounted to a breach of contract or a repudiation of the employment contract. Indeed Ms Mubika's own evidence was that the Organization wanted her to stay at the hospital. Further that the Organization understood her wish to transfer within the hospital and supported it. The failure to transfer was itself not a breach of contract.
There was an assertion by Ms Mubika that there was racism within the hospital as an institution. She produced no evidence whatsoever to support it. The Organization had taken steps to ensure equal and fair opportunities for all its employees and had taken note of the findings of the Employment Tribunal in connection with Ms Mubika's previous case. (What evidence was given to support this?) The very measures introduced by the Organization were suggested by Ms Mubika to perpetuate the discriminatory practices of which she had earlier complained about. Rather than there being a policy to discriminate against Ms Mubika in relation to promotion, she was encouraged to reapply for the job. She did not do so for what may have been understandable reasons.
Rejection is hard to take. The possibility of further rejection may have deterred her. The Tribunal finds no support for Ms Mubika's assertion that the Organization operated a policy that discriminated against her in relation to promotion and that the policy was implemented by persons from minority racial backgrounds. When the opportunity arose to undertake H Grade duties Ms Mubika refused to do so until she received medical clearance.
In the findings the Chairman included the following memo I wrote to the Black senior clinician whom I felt was putting me under pressure to take on H grade duties for a job I had failed the interview by scoring 12 out of 55:
To: Team Leader
From: MJ Maher
I am responding to your memo of the 5th. I just want to reiterate what I have already said previously in the two meetings you were in attendance, which is that I am not able to take up any of the H Grade duties.
81I believe the Organisation had over two years to fill in those posts but failed. As someone who applied for both H Grade posts and failed to get any one of them because of racial discrimination—confirmed by the Employment Tribunal in both cases—I feel I should not expose myself to a potential roller coaster I will not know how to get off.
I also want to make it clear before anyone decides to force me to take up a single task all of the following requirements are met first:
A letter from my GP stating that I am capable of getting involved in this task without any possibility of harming my mental good health
A referral to Occupational Health, followed by a report confirming that I will be alright to carry out an Η-Grade task without impact on my mental good health
A meeting with my union representative
Until the above requirements are met I would rather not discuss this issue even informally because I have respect for you and do not want this to get in the way of our good professional relationship, so let us stay professional.While I empathize with the position the Organization finds itself in it was an accident waiting to happen—it just took too long.
(I found it stressful to act in a post, or carry the duties of a post, I had applied for and did not get. If I am not good enough to appoint then why would I be good enough to do the job? I would have ended up feeling used and that would have depressed me and destroyed my self esteem. Is that difficult to understand?)
Ms Mubika had decided for her own understandable reason that she wished to move on, and that she had to do so before September and that was the reason for her resignation.
In summary the Tribunal finds no constructive dismissal, no unfair dismissal and no race discrimination.
When the Chair read his findings I found it difficult to listen: it felt like blows falling all over my head, with me unable to protect myself because my hands were tied behind my back.