Every Thursday for 10 weeks, millions stood on their doorsteps to cheer healthcare workers. Yet for NHS worker Jean-Michel Tchamba, the impact of the pandemic on BAME staff was neglected: “Apart from a few emails saying thank you to ethnic minorities there was no attention given to racism in the NHS”. In 2017, Tchamba won a claim of racial discrimination against his previous NHS employer, the Whittington Hospital NHS Trust.

openDemocracy can reveal that NHS England has faced 324 employment tribunals for racial discrimination since February 2017, 280 more cases than any other UK employer. Tchamba received the second highest pay-out from the NHS in a race discrimination case during this period.

Black and ethnic minority staff in the NHS are more than twice as likely to face discrimination at work compared to their white colleagues, according to surveys of its workforce. Yet if race discrimination cases reach tribunal, they are notoriously difficult to prove. Tchamba’s claim is one of only 2% that succeed at tribunal hearing.

Tchamba worked at the Whittington Hospital in North London as a medical engineering technologist for almost 10 years without any problems.

When new management took over the Medical Physics department, which was responsible for servicing hospital equipment, Tchamba began to feel excluded. He was not invited on a training course [1] and assigned less skilled tasks [2]. Members of staff, including Tchamba, were referred to as the ‘Monkey Team’, a name he perceived to be racially motivated [3]. While the tribunal did not dispute that these events took place, stating that the team description was “loose and crass”, they did not find that these claims were racially motivated as the ‘Monkey Team’ included a white member of staff [4].

“I was really battling to get to remain within the Trust,” said Tchamba. “There was a lot of bullying, a lot of racism at that time. They were trying to stress you, so you would just leave.”

After a number of complaints from Tchamba, the relationship with his managers broke down and he was invited to a meeting. He did not know what it was about.

The director held a letter – part typed, part hand-written – which said: “You [Tchamba] are therefore dismissed with effect from today plus notice (10 weeks) which you will not have to work. You will be paid any leave owed. There is no appeal to this decision. Could you go now and clear your locker of belongings.”

“They called me in, stood up and started reading it [the letter] straight away,” Tchamba said. “They ask me to give back my badge and then I give it to them. They asked me to go straight away.”

“I was completely down to be honest – really stressed. Because you have to go home and you also have to explain to your family.”

The tribunal regarded the nature of Tchamba’s sacking as an “extraordinary event” that “offends the basic principles of natural justice as they have long been observed in the employment context”.[5]

Although the tribunal found Tchamba partially contributed to his dismissal, they ruled direct discrimination on the manner in which the NHS sacked him, saying: “The Respondent [the Whittington Hospital NHS Trust] has not dismissed any other employee in such a manner, giving no notice of issue, giving no right to state a case and maintaining there was no right of appeal. The Claimant is black…it would be unlikely for a white employee with the same length of service, even with identical behavioural concerns, to be summarily dismissed in that manner.”[6] He now works for a different NHS trust.

A spokesperson for the Whittington Health NHS Trust said: "While Mr Tchamba raised nine allegations of race discrimination, these were all dismissed by the Employment Tribunal between 2016 and 2017 save for the allegation relating to the manner of Mr Tchamba’s dismissal. This was the only element of discrimination found in the case and we were not able to prove that the process applied in dismissing was non-discriminatory.

“We have always taken an active approach to tackle any evidence of racism at our trust and we have recently become the first trust in London to sign up to and undertake the NHS Workforce Race Equality Standards (WRES) Culture Change Programme. Prior to this, we completed an Independent Culture Review in 2018 specifically looking at bullying and harassment and our ongoing workplace culture programme is well underway."

Greater risk, less reward

The racism at work in Tchamba’s case is typical of the findings of NHS England’s own Workforce Race Equality Standard which assesses racism in the organisation. The latest figures show that BAME staff are 20% more likely to enter the disciplinary process compared to their white colleagues. 20% of workers are BAME but only 7% are in the ‘very senior manager’ pay band and only 8% are on NHS boards.

Roger Kline is a research fellow at Middlesex University. He wrote a research paper into racism in the NHS in 2014, ‘The Snowy White Peaks of the NHS’, which led to the set-up of the Workforce Race Equality Standard.

Kline highlighted the impact of “racialised patterns of employment” during the pandemic. Some reports have said that up to 60% of healthcare workers who died identified as BAME.

“BAME staff are disproportionately represented on the frontline in lower graded roles as health care assistants, cleaners, porters and band five and six nurses,” he said. “More likely to be on nights where there may be less scrutiny of what's going on. Disproportionally got poor PPE and fit. And there’s lots of evidence that in some trusts BAME staff will be disproportionately redeployed into riskier areas.”

Kline sat on the Workforce Race Equality Standards board until 2017 and described the NHS’s reaction to racism as “glacial”.

“In 2015 I was asked, ‘Is the NHS institutionally racist?’ And I said, well it looks like it might be. The proof of the pudding is how quickly it adapts. How quickly we get to a situation where it’s broadly the same chances of men and women, black and white people, after shortlisting, being appointed. That it’s more or less the same likelihood of black and white people being disciplined, being bullied by colleagues and so on. And although there’s been movement of some of those things, there’s been very little movement,” he said.

“It is recruitment, development and promotion that is the key to everything else. Until there are lots of BAME people in senior and middle ranking positions, the culture is not going to get better.”

While most of the measurements of workplace equality have improved over the years, discrimination statistics have got worse. In 2019, 14.5% of BAME staff said they had experienced discrimination from managers or colleagues. In 2015, it was 14%.

“The staff survey is really interesting because BAME staff give more positive responses on almost all questions except ones related to race discrimination,” he said.

“Most of the NHS doesn’t need persuading it’s got a problem. What it needs to know is what it’s going to do.”

A spokesperson for the NHS said: “Every NHS organisation has been reminded that they must prioritise and carry out risk assessments for their BAME staff. The NHS staff survey and the annual independent assessment of BAME NHS staff experience shows significantly lower reports of discrimination, bullying or harassment but clearly we must continue to support employers to tackle this, where it exists.”

Barriers to justice

When discrimination in the workplace is irresolvable, an employee’s last resort is the employment tribunal. But Tchamba’s win is in the minority. While the average employment claim has a 9% chance of succeeding at hearing, success rates for discrimination cases average between 2-4%.

This is partially due to many being settled out of court. Neil Emery, Associate Solicitor in the Employment Department at Bindmans, says they can also be attributed to the difficulty in proving “insidious forms of racism” that take place within workplaces like the NHS.

Last year, Emery represented an NHS employee. “It was a person of Asian background who was accused of being aggressive,” he said. “The cliché of aggressive people of colour, or particularly women of colour, is obviously a combination of gendered insults and racial insults.”

“Now that in itself is obviously racist, but it is a lot harder to prove it as being actionable racism.”

“If that's your lived experience, that is clearly going to be a grinding and difficult thing to deal with. But from a purely from a purely litigation perspective, it is going to be very tricky to demonstrate that.”

Another huge barrier, especially for low paid employees, is cost. The employment tribunal system is entirely reliant on individual employees pursuing their rights with limited state support. The system was originally established in 1964 as a means of quick and easy justice, with the expectation the employees would represent themselves. But as the law became more complex, claimants that represent themselves do so at a severe disadvantage.

“One of the main problems is the disparity between the cost of tribunal action against the level of compensation that is awarded in tribunal,” noted Emery.

“Last year the tribunal records suggested that the average award [for race discrimination] is about £12,500,” he said. “The cost of taking a case to tribunal will very much depend. But as a rough rule of thumb, we tend to talk about at least £7,000 to £10,000. Realistically, if it’s a discrimination case, it will take longer. It will be much more expensive and it may last for a very long time.”

“Sometimes people simply cannot afford it. Fewer and fewer people have the benefit of legal expenses cover.”

Emery believes that the pain of reliving race discrimination in tribunal can be one of the biggest barriers to pursuing justice.

“For people who have been subjected to race discrimination, when it’s bad, it is very, very bad. Because such a lot of our functional day is spent working, when that goes wrong, you can frequently have a really severe detrimental impact on people’s mental health,” he said. “So I think that is also one of the reasons people don’t bring claims – because sometimes they just don’t want to have to deal with it.”

For Tchamba, the impact of race discrimination and the tribunal system is still being felt.

“I really struggle because it really put me down completely, trying to break my finance, confidence and almost my family as well – not getting the right amount of money that you need for kids. I went through a difficult time and I’m still fighting to come out of it,” he said. “I almost went into bankruptcy.”

“The problem is that every year we receive a survey [in the NHS], asking ‘How can we improve in tackling racism?’ I always say: ‘What is the purpose of the survey when there’s no change?’ When there’s no change, no improvement, the same people complaining.”

“The system is built in such a way that they do not see it as racism but, in the NHS, racism is a reality.”

Footnotes

[1] Tribunal, pages 15-16 para 18: “On 21 October 2014 at 8:26 in the morning the Claimant emailed Manni Rehal to express his disappointment at the fact that two colleagues had been sent on training apparently without consultation with the rest of the Department, to the exclusion of the Claimant."

[2] Tribunal, pages 27-28 para 56: “John Byrne expressed his intention to move the Claimant in to the community…It is right that as a matter of kudos amongst the technicians this job has less kudos because the job does not involved servicing the most complicated machinery which is to be found in the hospital.”

[3] Tribunal, pages 24-25 para 49: “Carrise Forde had told colleagues that she had a conversation with Manni Rehal in which Manni Rehal is said to have included her and other who were named as representing ‘the future’ of the Medical Physics Department. She said that the other people were described as the ‘Monkey Team’…she inferred that the Claimant must have been part of the Monkey Team.”

[4] Tribunal, page 25 para 52: “On the balance of probability, we find that he is likely to have said it…it was a loose and crass thing to say, however it was not racial.”

[5] Tchamba vs Whittington Hospital employment tribunal judgement, page 32, paragraph 65

[6] Tchamba vs Whittington Hospital employment tribunal judgement, page 40-41, paragraph 97-98