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Where there’s a will, there’s a way…

In R Hastings -v- Kings College Hospital NHS Foundation Trust a former IT manager was awarded £1m in compensation after an employment tribunal found that the King’s College Hospital NHS foundation trust in South London racially discriminated against him and dismissed him unfairly following an incident in a hospital car park. The Claimant was represented by Mr David Stephenson of Doughty Street Chambers and the Respondent by Mr Ben Collins QC of Old Square Chambers.

Mr Richard Hastings had worked for the NHS Trust since 1996 but was dismissed in October 2015 on the grounds of gross misconduct following an accusation of assault after an altercation with a Trust contractor and delivery van driver in the hospital’s car park in 2015.

In July 2015, Mr. Hastings was in a loading bay waiting for a parking space to become free when he was sworn at by a white van driver. When Hastings approached the van, which contained three men and tried to take down the van’s registration number, he was subjected to racial abuse and assault. The delivery driver, Archard, and Hastings exchanged swear words which Hastings admitted but stated it was in self-defence. Various racial remarks were also made to Hastings by Archard and a contractor, a passenger in Archard’s van. After Hastings gave Archard and the contractor his name and his job role, the passenger repeatedly insisted “that’s not your real name,” in what Hastings perceived to be a reference to his “English sounding name for a black man.” Upon discovering that Hastings was an IT manager at the hospital, the contractor declared “Look! They’ll let anything happen here,” in what Hastings perceived to be another racist comment.

Hastings stated that he became concerned when he believed the heated altercation would become physical. He said that in the course of the altercation Archard placed his hand on his (Hastings) forearm and when Hastings lifted his arm to extricate himself, he unintentionally made contact with the contractor’s face. Hastings denied intentionally hitting him.

Hastings called the hospital’s security office for assistance during the altercation, but nobody came to his aid. After the incident, Hastings told his colleagues about the incident and they encouraged him to report it. He reported it but after the contractor and van driver said that that he assaulted the driver, he was suspended

The Trust called an investigatory meeting with Hastings, but the meeting was more of an interrogation rather than an investigation into the dispute. The tribunal found that various opportunities to investigate Hastings grievance of having been racially abused and to gather evidence supporting Hastings’ innocence were overlooked and thus the initial investigation was “fundamentally flawed.” Judge Sage stated that Hastings “provided evidence of racial abuse and of foul and offensive language being directed at him, but this was not investigated. We conclude that by failing to investigate this, the claimant was treated less favourably because of race... he was assumed to be the aggressor. The white witnesses were accepted to be the victims.”

Following an investigation which the tribunal said was tainted by “unconscious bias,” Hastings was dismissed on the grounds of gross misconduct.

The tribunal found a “catalogue of failings” in the foundation trust’s processes which showed a difference in treatment between Hastings and the contractor and van driver. The tribunal found that Hasting’s evidence was treated with distrust and disbelief by his employers and found him to be an honest witness while identifying several inconsistencies and flaws in the opposing evidence. The security office admitted receiving the call even though no record of the call was logged. In spite of this, Hastings was depicted as the aggressor and the contractor as the victim of the attack, despite the CCTV footage showing otherwise.

Hastings said that he had failed to reestablish his career despite applying for hundreds of jobs, had trouble sleeping, had lost weight and had been left “completely broken” by the experience. The substantial damages awarded reflect the significant loss of Mr Hastings’ pension rights following his dismissal.

A representative for King’s College Hospital NHS Foundation Trust said: “The Trust has apologised to Mr. Hastings and we would like to extend that apology once again.”

It is obvious that if this case had been investigated properly at the outset and the correct questions asked, the outcome would have been different, and the Trust would not have been found liable and would have been financially better off.

This case highlights the fact that a failure to follow fair, thorough and unbiased disciplinary procedures can result in substantial compensation awards. It also highlights the importance of reviewing all the evidence, or lack of evidence, and questioning any omissions or potential bias and the importance of diversity training for staff.

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Sim Jakhu is a Legal Administrator at Pure Business Law who also undertook a summer Legal Internship with us in 2017. She is an LLB Graduate from De Montfort University as of July 2018 and has been working at Pure Business Law since completing her studies. Sim enjoys travelling and has a strong interest in cars.

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