• Employment tribunal rules Peter Hale was not discriminated against on racial grounds and he was not unfairly dismissed
  • Brighton and Sussex University Hospitals Trust has a troubled history of race relations
  • Trust has another employment tribunal outstanding with a discrimination claim

A senior medical manager has lost his case for race discrimination against a trust with a troubled history of race relations.

An employment tribunal last month issued its judgment, ruling against Mr Peter Hale, saying Brighton and Sussex University Hospitals Trust had not discriminated against him on racial grounds and that he had not been unfairly dismissed.

Mr Hale, a general surgeon and clinical director of the digestive diseases unit at the trust, was surreptitiously recorded making comments after a fractious meeting with medics that later saw him dismissed by the trust.

Four doctors he managed – three from India and one from Pakistan – had made a grievance claim against him in November 2013, alleging unfair treatment in respect of their contract status.

One month later Mr Hale chaired a management meeting to discuss a new rota for the department. The employment tribunal’s ruling said it was “common ground that the meeting was heated. The complainants used the meeting as an opportunity to air their various grievances against the trust, which [were] attributed to the claimant”.

After the four doctors left, a recording device remained in the room which picked up Mr Hale making comments they regarded as racially offensive.

His comments included “some of these sub-continent elements, what you end up with [is] long-term resentments and grievances and all sorts of stuff. They are their own worst enemies, you could see that today.”

Mr Hale was taken through BSUH’s disciplinary and appeal process, the latter heard by trust chair Julian Lee, and dismissed in May 2015.

Mr Hale, who is white, had also made a complaint of racism against the four doctors, claiming their comments “racism and slavery are gone” and “we are just used like slaves” meant “he was being likened to a slave master in his treatment of them because he was white”, the tribunal’s judgement said. The trust dismissed his grievance.

Mr Hale’s case was that the trust had discriminated against him by referring him to a disciplinary process but not the four doctors, and that he would have been treated differently if he was from a BME background.

Related to this point, the trIbunal’s judgement said: “We feel the subjective opinions of the respondent’s officers (HR director Graham White and deputy medical director Keith Altman) were very much influenced by race. The claimant is not an ethnic minority, he is white British and does not fit the normal profile of a person subjected to racial harassment and we believe this unconsciously affected the respondent’s attitude towards his complaint. It is inconceivable that the respondent would have been dismissive of this complaint had he been an ethnic minority, mindful no doubt, of the backlash this would create from the BME Network”.

But it added: “We are satisfied that the claimant was dismissed because of his conduct” and that “we are satisfied that a non-white hypothetical comparator would have been dismissed in similar circumstances.”

Mr Hale was referred to the Medical Practitioners Tribunal Service, formerly the disciplinary panel of the General Medical Council, which regulates doctors’ professional practice.

In September last year a panel ruled that: “Although your comments were derogatory and dismissive, the tribunal is satisfied that they were not racially motivated.”

The trust would not comment on the Hale case.

Earlier this year a consultant at BSUH won a claim of unfair dismissal against the trust, although the employment tribunal rejected his complaints of victimisation under the Equality Act 2010. HSJ understands the trust is appealing this ruling.

The trust has another employment tribunal outstanding, with a discrimination claim submitted by BSUH’s associate director of transformation Vivienne Lyfar-Cissé.

Dr Lyfar-Cissé is chair of the NHS BME Network and a case management hearing on her claim of race discrimination is due on June 28.

BSUH has a troubled history of race relations and in 2011 signed a memorandum of understanding with the Race Equality Commission to undertake a zero-tolerance approach to racial harassment.

In 2015 HSJ reported Dr Lyfar-Cissé’s allegations that several staff had been let off with warnings or training after incidents of this kind.

In 2008 Dr Lyfar-Cissé was awarded an out-of-court settlement by the trust after she suffered race discrimination and victimisation.

Then chief executive Duncan Selbie issued a public apology in which he said: “The trust recognises that it did not have the constitutional right to remove Dr Lyfar-Cissé… and as such now recognises her as the elected chair [of the BME Network].”

He added: “It is my personal duty as chief executive to create an environment where it is known that racism will not be tolerated and whenever discovered that it is addressed firmly and quickly.”

The trust launched the Commitment to Change programme to tackle discrimination in 2008 and this was re-launched in 2012.