NHS trust bosses urged to address racial ‘disciplinary gap’

A guide for NHS employers has been published to help them to address racism in formal disciplinary procedures, as ethnic minority staff continue to enter them at a higher rate than white staff.

The document, titled Closing The Gap: a guide to addressing racial discrimination in disciplinaries, was launched today.

NHS Providers said it would act as a “comprehensive guide” for trust leadership to recognise and tackle the “discriminatory disciplinary gap” in the health service’s workforce.

"A workplace where racism is permitted to flourish cannot be serious in its ambition to be an anti-racist organisation"

Michelle Cox

This gap refers to the significantly higher likelihood of minority ethnic staff being reported, and these reports being acted on, by professional disciplinary procedures.

According to the most recent Workforce Race Equality Standard (WRES) data for the NHS, ethnic minority staff are 1.14 times more likely to enter a formal disciplinary process than white colleagues; in half of trusts, they are 1.25 times more likely.

The new guide, written in collaboration with healthcare law firm Hempsons, outlines the causes for this, which include conscious and unconscious bias, a lack of cultural awareness and sensitivity among leaders, systemic or structural issues disadvantaging this staff group, organisational cultural issues, bullying, and other disparities in relations between employees and human resources (HR).

It states the consequences of this, such as the risk of losing talented staff, the impact on wellbeing, reputational damage to the NHS, as well as legal and financial implications, and offers examples of interventions which could be made to address it.

The guide cites several recent examples of the disciplinary gap causing harm or distress to nursing and other healthcare staff, as well as those which showed that structural racism exists in the NHS.

One case cited, not specifically about disciplinary procedures but relevant to structural racism, was that of senior black nurse Michelle Cox.

Ms Cox won a landmark employment tribunal against the NHS after she successfully proved that she had been subjected to bullying, sidelined from opportunities by her line manager and had suffered whistleblowing detriment because of her race.

This case caused significant psychological harm to Ms Cox, who later said was still dealing with trauma and poor mental health months after the tribunal.

Another case, specifically about the disciplinary gap, was that of an IT infrastructure analyst at a London trust who, after an “altercation” with three white colleagues in a car park, was taken through a disciplinary process, which led to his dismissal for gross misconduct.

The guide said that, in this case, a later tribunal found that this disciplinary process was “tainted by unconscious racial bias”.

Ms Cox, in response to the publication, told Nursing Times that, in her view, NHS organisations must “challenge their individual and collective disparities” to regain the confidence of minority ethnic staff.

She added: “A workplace where racism is permitted to flourish cannot be serious in its ambition to be an anti-racist organisation.

“The data year on year from WRES is undisputed; we know that global majority staff are more likely to enter formal disciplinary proceedings than white staff and… are likely to be given harsher penalties.

“One cannot underestimate the psychological injury to staff and the reputational damage to organisations from the implementation of... discriminatory, deep-rooted conscious and sub-conscious biases within policies frequently being observed in public employment tribunals.”

Closing The Gap also sets out, to trust leaders, that this gap exists at a regulatory as well as trust level.

This is something the Nursing and Midwifery Council (NMC) has acknowledged as an issue it intends to continue working on.

The guide lays out several examples of best practice from across NHS England where trusts have worked to reduce the disciplinary gap.

Barking, Havering and Redbridge University Hospitals NHS Trust, which, according to the guide, provides care to three of London’s most diverse boroughs, attempted to reduce the gap by cultivating a “restorative, just and learning culture”, and to resolve issues informally.

Specific interventions included a board and senior leadership-led cultural change, ensuring all HR and equality, diversity and inclusion (EDI) staff were trained in the restorative, just and learning culture, and investing in external mediation to avoid matters being escalated to formal disciplinary procedures in the first place.

The trust also focused on psychological safety by encouraging staff to speak up, giving feedback on poor examples of disciplinary procedures, and providing “active bystander” training to further encourage staff to whistleblow on discrimination.

“With the right investment and focus, trusts will be able to ensure the NHS continues to be a great place to work"

Julian Hartley

Since implementing these interventions, minority ethnic staff are still 1.02 times more likely than white staff to enter formal disciplinary processes, but this is far lower than the London average of 1.47 times – where 1.0 is equally as likely.

The guide also lists several other trusts which have made similar interventions, and how it has helped to reduce the heightened rate of minority ethnic staff entering disciplinary procedures.

NHS providers chief executive Sir Julian Hartley, in a foreword to the guide, said: “People are the backbone of the NHS, and trust leaders know that caring for their workforce enables them to care for others.

“As NHS staff continue to tackle the extraordinary pressures they are facing and look to keep the service fit for the future, it is clear that a focus on wellbeing and experience at work will be key.

“With the right investment and focus, trusts will be able to ensure the NHS continues to be a great place to work.”

Andrew Davison, head of employment at Hempsons added: “With its extensive experience in employment law, Hempsons brings a unique legal perspective to understanding and closing the disciplinary gap.

“Our lawyers are passionate about using their experience to help trusts address this issue, which is a crucial part of any organisation’s work on anti-racism as well as for promoting diversity, inclusion, and equality within the NHS workforce, and for ensuring that all staff are treated fairly and equitably.”