Trainee emergency call operator racially discriminated against during drug investigation

18 Mar 2019 By Maggie Baska

Tribunal unanimously rules employer carried out ‘deeply flawed’ inquiry after employee who took caffeine supplements accused of distributing smart drugs

A London tribunal has awarded more than £16,000 to a trainee emergency call operator after it unanimously ruled he had been racially discriminated against by his former employer during a drug investigation.

Jerry Ogbonna was suspended without pay just five days into his employment with Partnership of East London Cooperatives (PELC) after his employer accused him of consuming and distributing illegal drugs to his colleagues. He had in fact been using off-the-shelf caffeine supplements.

The tribunal ruled that the subsequent investigation did not properly identify what drugs or substances were consumed or by whom, or even ascertain the legality of the drugs in question.

Judge Tobin, who oversaw the case, said Ogbonna, who is black, was subject to “suspension, investigation and summoned to an unjustifiable disciplinary hearing” in circumstances under which no white comparator would have faced the same. 

The tribunal concluded that PELC committed unlawful race discrimination. 

Ogbonna began working as a trainee emergency call operator with PELC, an urgent care provider, on 2 August 2017.

Five days into an intensive 10-day training course to handle calls to 111, the NHS’s urgent helpline, Ogbonna was suspended without pay when other trainees raised concerns about ‘smart drugs’ – performance enhancers which may or may not have been legal – being distributed on the course.

He was also accused of giving a substance to another staff member that caused her to collapse and required an ambulance, and of taking a photograph of a senior staff member without permission and posting it to a WhatsApp group against company policies.

PELC told the tribunal it had followed its disciplinary policies and procedures by undertaking an investigation as part of the allegations against Ogbonna.

The tribunal found PELC’s own investigation had determined Ogbonna had not consumed or distributed an illegal substance but had been taking Pro Plus, a caffeine supplement widely available in supermarkets. The tribunal found there was no attempt to ascertain the legality of this drug.  

It also determined that the other trainee’s collapse was completely unrelated and that Ogbonna had no input or responsibility for any breach of PELC’s social media policies.

PELC contended Ogbonna had provided a statement on the day of his suspension, and he was invited to a follow-up formal investigation meeting on 13 September, however Ogbonna resigned on that day, and as such PELC ended the investigation and any disciplinary action. 

However, Ogbonna told the tribunal he resigned because he was reluctant to return to work with his “detractors” or with senior staff members who he claimed had deliberately omitted or falsified information to harm his career.

Ogbonna contended it was on the grounds of his race that the allegations were given any credence. He claimed that Paul Barratt, PELC’s head of operations, had instructed the head of HR to reinvestigate the claims, and that Ian Lain, the head trainer, had “deliberately falsified information” to protect a staff member that had supplied the tablet to the employee who collapsed. 

The tribunal found the accusations that Ogbonna had consumed smart drugs were “a series of speculation and innuendo devoid of real substance and containing surprisingly little facts”.

While the tribunal did not find deliberate falsification, Judge Tobin said Lain was “convinced that the complainant was up to no good, even if the evidence would not support this.”

“The investigation did not properly identify what drugs or substances were consumed and by whom. The investigation did not clarify who else was given such drugs or substances. Astonishingly the investigation did not ascertain the legality of such drugs or substances,” he said. “The conclusions of the investigation were wholly unsustainable. This was a deeply flawed investigation at every level.”

The tribunal awarded Ogbonna £16,202.59 compensation for injury to feeling, loss of earnings and an additional Acas uplift. 

Kate Benefer, employment law partner at Royds Withy King, said this case demonstrates that many claims for unfair dismissal and discrimination succeed because of flaws in the investigation process. 

“These can range from a simple misunderstanding of the investigator’s role to a proper investigation not taking place, due to a lack of time, skills and resources of HR, as was the case here,” said Benefer. 

She said employers should construct an investigative plan if preliminary findings indicate possible race discrimination. This involves identifying witnesses, including the accused employee, and gathering evidence, such as employment records, to consider during the investigation.

PELC has been contacted for comment, and Ogbonna could not be reached for comment. 

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