Last Friday, 10th January 2020, Samira Ahmed won an important tribunal case against her employer, the British Broadcasting Corporation. The BBC was unable to show a fair reason for paying her six fold less than another presenter (Jeremy Vine) for doing similar work.
For those of us interested in the health sector, the case is notable for several reasons.
The institutional response
First, the institutional response to Ahmed’s complaint seems to have been characterised by poor listening and poorer reasoning. This basic in-house failure has left the BBC with a substantial legal bill.
This will feel familiar to many who follow the tribunal cases of health professionals such as A&E doctor, Chris Day. His whistleblowing case has seen NHS institutions rack up more than £700,000 in legal costs so far. [Coincidentally, this is the amount the BBC is said to owe Ms Ahmed in back pay].
The union response
Second, when faced by institutional failure to address her complaint, Ahmed had to take the matter to an employment tribunal. She was supported to go to trial by her union, the National Union of Journalists (NUJ).
In contrast, the British Medical Association’s (BMA) former Head of Legal, Viv du-Feu admitted on oath in 2016 that in his almost three-year tenure the BMA had supported no doctor to full trial; this despite many BMA members experiencing inequalities around gender and race. Du-Feu’s admission also reflects on the BMA’s unhelpful approach to whistleblowing cases such as mine and those of e.g. Dr David Drew and Dr Raj Mattu.
The tribunal response
Third, the judgment in Ahmed -vs- BBC takes forty pages to deal with a hearing totalling roughly two weeks. It presents a forensic examination of how Samira Ahmed was treated compared to Jeremy Vine (a comparator). The tribunal understood that discrimination in the professional workplace may well be a case of unfairness without animus; blind privilege rather than personal hostility.
In my whistleblowing case, the tribunal gave a shorter judgment despite a far longer hearing. On race discrimination, it mixed up the evidence and claims, doing justice to neither. The tribunal seemed to imply racism was unlikely as surgeons hadn’t confessed to personal racist dislikes. It overlooked the fact that two reports had found racism in our surgical workplace. It failed to determine why the hospital did nothing to tackle those responsible and instead removed those of us who complained of racism. It failed to do justice to a wealth of evidence showing how the hospital treated relevant white surgeons in a more benign and protective manner, even after they e.g. altered evidence and dissembled about it when caught.
I queried these issues with the tribunal judge and also raised my concern that he’d (1) already had two previous judgments overturned due to the appearance of bias; (2) neglected, here, to reveal his prior working relationship with the Alder Hey Chair, until months after a 2-day preliminary hearing; (3) even then neglected to reveal his “really very good” personal friendship with a senior doctor who was both a former Clinical Director to the hospital CEO, and also a longstanding colleague of the Alder Hey surgeons; (4) only revealed the latter weeks before trial (when recusal and cancellation may have cost tens of thousands in lost barrister fees). The tribunal judge dismissed these and other concerns but the Employment Appeal Tribunal criticised his dearth of reasoning as “unwise”.
Samira Ahmed’s case raises familiar questions about public sector HR, and institutional deafness to unfair treatment.
But it also points to the positive impact that a motivated union can have in challenging institutions. It also shows how vital it is for tribunals to do proper fact finding; carefully comparing the treatment of employees rather than leaping to judgment. It reminds too how serious discrimination can flourish without the institution disliking those it treats unfairly.
Some lessons for the medical profession seem clear.
Our main union, the BMA, is a big part of the problem. It fails too many doctors who, like Samira Ahmed, face discrimination. Its own Romney report shows it has allowed discriminatory conduct to flourish in its ranks for so long that even internal staff don’t trust the union to deal fairly with their complaints about discrimination.
There appears to be a wider paucity of leadership across the profession.
In football, Gary Neville was widely praised for discussing the broader societal and political drivers to on-field racism. It’s hard to recall medical leaders challenging racism so prominently and unequivocally.
And it’s facile to speak of “zero tolerance” for racism, as if that statement suffices. In medicine, as elsewhere, there’s a risk it’s too often a glib excuse for zero-ideas and zero-interest.
Indeed, the “zero tolerance” sound-bite may be counter-productive. If the perceived threat is that every “off colour” remark is to be treated as a “hanging offence” it may make people less willing to report or admit racism. This risks leaving both parties fearful and unreconciled – so racism goes unaddressed, while reports of it are resented.
In UK medicine, racism has much to do with informal systems of patronage within which minorities are less considered for grace or favour. This can take effect in life-changing ways, whether in picks for promotion or for disciplinary action. It may lead to unsafe convictions if medical experts feel slightly emboldened in throwing a minority colleague under the bus. On the other side, it leaves open the possibility that white doctors are over-rewarded and under-disciplined – even to the extreme of empowering criminals like surgeon Ian Paterson, while diminishing the voices of minority colleagues who protested his actions.
The medical profession has often sought data, quantitative and qualitative, to understand problems affecting health. On racism, it seems sometimes to quail at accepting either form of evidence, and sluggish to promote studies of its own. Quantitative evidence of discrimination can get explained away, while qualitative evidence may be dismissed as proof that discrimination is merely in the eye of the minority beholder.
It’s as if racism, as an issue, is managed like climate change. Many in the profession seem reluctant to hear or believe the accumulated experiences. Some seem more angered by those reporting racism than racism itself. Together, this frustrates efforts to invest seriously in research and reform.
Fairness ought to be a central tenet of ethical practice for medical and legal professions. Samira Ahmed’s case stands to offer both some overdue learning.
Her case challenges the apparent complacency of the BMA by showing how a motivated professional union (NUJ) can empower an employee to challenge major institutional discrimination.
The judgment in her case also highlights the variable quality of employment tribunals. Her written judgment shows thoroughness and reasoning that in other cases may, with life-changing consequence, be sorely lacking.