NHSE director’s discrimination claims dismissed by tribunal

In a ruling published this week, judges decided unanimously to dismiss Mike Franklin’s complaints against NHSE and Prerana Issar.

Employment judge Corinna Ferguson assessed that Ms Issar’s conduct was “in no sense whatsoever” to do with Mr Franklin’s race, and there was “even less” evidence that sex had “any bearing” on her actions.

The judgment said: “Whether or not Ms Issar’s concerns about [Mr Franklin’s] performance were justified, we are satisfied that they were genuine.

“There is ample evidence that she was chasing him for work and was raising issues about the quality of work from October 2020 onwards. [Mr Franklin] accepted that, at least regards his apparent failure to provide fortnightly updates to her it did not ‘look good’.

“[He] was unable to provide explanations for the apparent lack of response to other emails and said in cross-examination that he had not had an opportunity to respond to these concerns because he has never provided with the details, despite his repeated requests.”

Judge Ferguson said Mr Franklin, who was appointed joint director of equality, diversity and inclusion in summer 2020, was excluded from a direct reports meeting in March 2021 as previous issues between him and Ms Issar had not been resolved.

The tribunal heard an investigation had been launched into their working relationship following concerns about Mr Franklin’s performance and a lack of communication over several months.

Mr Franklin told judges he had repeatedly requested details about the investigation, as well as of the allegations apparently made against him, but it was effectively discontinued when Ms Issar left NHSE in March 2022.

Judges put this down to being consistent with the “general breakdown” in their relationship and “had nothing to do” with Mr Franklin’s race or sex.

Judge Ferguson said the only basis for Mr Franklin’s sex discrimination claim was that Jenni Douglas-Todd, who was joint EDI director until March 2022, was not subjected to the same treatment.

However, she added this further supported NHSE’s defence to the race discrimination complaints, and that Ms Douglas-Todd was not in “materially identical circumstances”.

The judgment said: “We have accepted Ms Issar’s actions for acting as she did, and there is no evidence on which we could find that her conduct was influenced by [Mr Franklin’s] sex.”

The tribunal believed Ms Issar’s comments to Ms Douglas-Todd about the “unfair burden” she had taken on in the job share may not have been “exemplary management”, adding they found it “surprising a senior manager with an HR background would do this”.

They also queried an apparent lack of “proactive management” of Mr Franklin prior to the investigation, but accepted the relationship had broken down and said this did not relate to his race or sex.

Mr Franklin went on long-term absence in summer 2021, and again in autumn 2022, but remains employed at NHSE.

Ms Issar will become Sainsbury’s chief people officer in June after leaving NHSE.