A Black nurse has been awarded £23k at tribunal after an investigation into accusations she had been sleeping at work was found to be discriminatory.
Beatrice Mbonda, who worked at Quarryfields Care Home, was given a final written warning for gross misconduct after she was accused of sleeping during the night shift over two consecutive nights.
However, the Sheffield tribunal heard that only white members of staff who had worked these shifts were interviewed as part of the investigation.
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The company also failed to investigate a video submitted by Mbonda that showed a white nurse sleeping while on shift.
As a result, the tribunal ruled that Mbonda’s claim of race discrimination was well founded and she was awarded £23,603.45.
Background
Mbonda, who described her ethnic origin as Black African, began working as a nurse at Quarryfields Care Home in 2015.
On 9 and 10 March 2023, Mbonda was working a night shift along with several healthcare assistants.
Three white staff members reported to the care home’s manager, Victoria Watson, that they believed Mbonda had been sleeping while on duty during those shifts.
Amanda Swift, clinical nurse manager, was instructed to investigate the complaints.
Dawn Deer, who worked with Mbonda on the night shift of 10 March, wrote in a statement that she could hear snoring coming from the treatment room where Mbonda was thought to be. She said she was worried she would not be able to wake her up if a resident at the care home required urgent attention.
On 14 March, Emma Hughes, a healthcare assistant, accused Mbonda of shouting at her in an intimidating way after she had refused to take a member of the care home to hospital because she was feeling unwell.
Hughes also accused Mbonda of sleeping in the clinic room, saying she had knocked on the door but was ignored and heard snoring.
Swift met with Mbonda that day and informed her of the complaints. Mbonda was taken off night shifts pending an investigation.
Shortly afterwards, Mbonda was signed off work by her GP because of work-related stress.
A week later, colleagues who had worked on the same night shifts as Mbonda were invited to meetings to discuss the allegations.
Of these employees, only one person, Hannah Anaba, was Black, and she told Swift that she did not want to be involved in the investigation. An investigation meeting took place on 14 April.
Mbonda confirmed that she was aware of the care home’s policy on sleeping on duty, which classified it as gross misconduct, but repeatedly denied that she had done so.
She said that while she had been in the clinic room the doors were closed but not locked, and she had been listening to music and the news on her phone.
During the meeting, Mbonda said she believed the allegations were retaliation for what had happened earlier in the shift when staff had refused to take a resident to hospital.
On 17 April, Mbonda emailed Swift asking why all the staff on the shifts had not been questioned. Swift decided to close the investigation that day and did not reply to Mbonda’s email or interview any other members of staff.
Both Swift and Watson considered the allegation of sleeping on duty to have been proven.
Mbonda returned to work for a short period in May. On 30 May, Watson told her she was going to report her to the Nursing and Midwifery Council and that she should not practice any more. She told her to resign with immediate effect and took her work keys from her.
A disciplinary hearing was held on 8 July, where Mbdonda was accompanied by Louise Fennell, her union representative.
Mbonda and Fennell raised concerns that the allegations may be racially motivated, pointing out that only white members of staff had been interviewed and the five Black members of staff who had been on shift on the 9 and 10 March had not been interviewed.
They requested for these staff members to be interviewed and the hearing to be postponed until this had happened.
Kim Payne, home manager, asked Mbonda whether she had experienced any discrimination previously. Mbonda said that she had “several times”, noting that Deer had told her she did not want to work with her anymore. She pointed out that Deer had refused to do something Mbonda had asked and was now reporting her.
Payne did not conduct any further interviews or go back to those who had already been spoken to, despite the concerns raised by Mbonda and Fennell.
The only reason Payne gave for this was that it was not normal practice to re-interview at the disciplinary stage because the investigation had already taken place.
On 20 July, Mbonda was informed that the allegations against her had been upheld and she was issued with a final written warning.
The tribunal heard that Payne did not believe interviewing other employees would have changed the outcome of the disciplinary process. “She appeared to approach the disciplinary hearing with a closed mind and did not take on board what the claimant and her trade union representative were saying,” the tribunal stated.
Mbonda appealed the final written warning on 26 July, stating that both the investigation and the hearing were flawed and that the investigation and the hearing officer failed to respond to her concerns that the allegations were racially motivated.
Mbonda was sent a video by an agency worker which showed Angela Briggs, a white nurse, asleep in a chair at work wearing her uniform while sitting next to a care home resident.
The appeal lead, Hannah Blundell, was informed about the video and told by Fennell that Black members of staff were too scared to speak out.
The tribunal heard that Blundell did not appear interested in and did not explore the allegation further.
Fennell subsequently sent the video to the care home’s HR department and, two months later, Watson interviewed Briggs. However, no further action was taken and she was not invited to a disciplinary hearing.
Mbonda’s appeal was rejected, with Blundell writing there was “no evidence” that the allegations were racially motivated.
On 9 December, Mbonda resigned.
Judge’s comments
Employment judge Ayre found that the respondent failed to carry out a full and fair disciplinary process by only relying on evidence from white staff while failing to speak to Black members of staff who had been present.
Ayre noted that, during the disciplinary hearing, Mbonda raised concerns that Black members of staff had not been interviewed and the allegations were racially motivated. However, despite this complaint, no further interviews were carried out.
Additionally, the judge found that Payne had a “closed mind” to the disciplinary process and the suggestion of discrimination.
“An allegation of race discrimination is an extremely serious one and not to be treated lightly,” said Ayre. “It is in our view surprising that the respondent did not even ask those who had made complaints and whether the complaints were in any way motivated by race.”
Ayre reiterated that a proper investigation should look for evidence of innocence as well as of guilt.
The tribunal highlighted that Mbonda was found guilty from the time the complaints were made against her and there was “nothing she could do to change the respondent’s mind about the allegations”.
Lawyer’s comments
Paman Singh, principal associate at Weightmans, said the case highlighted the importance of “open-minded decision making, testing competing evidence and never expanding allegations without giving the employee a proper opportunity to respond”.
The care home’s failure to investigate the video of Briggs sleeping demonstrated “inconsistent treatment”, which was central to the tribunal’s finding of race discrimination, Singh explained.
He reminded employers to be consistent in their treatment of employees and to take on board evidence that contradicted earlier conclusions, even if it resulted in the process being extended.
“Overall, the judgment serves as a useful reminder that poor process, inconsistency and failure to engage with discrimination concerns can expose employers to significant legal and reputational risk,” added Singh.