UK & Europe
Clyde and Co were instructed by Insurers to represent a dentist, Dr S, in a claim brought under the Equality Act 2010 where the Claimant alleged that she was subject to harassment on the grounds of her race.
The Claimant’s case was based around two comments made by Dr S during the course of a consultation to discuss whether the Claimant should undergo the removal of a tooth under sedation. The Claimant had previously attended upon Dr K, a dentist working in the same practice as Dr S, in 2020 for a discussion as to the extraction of her UL7 tooth. The Claimant, who during the course of the claim described herself as of multi-dimensional ethnic origin, was told by Dr K that people of ethnic minorities can have increased bone density which might result in additional complications during extraction. The Claimant denied that this was said. The Claimant then attended upon Dr S to discuss the possibility of having sedation in order to remove this tooth. The general risks of the procedure were outlined. The Claimant asked whether there were any risk factors particular to her. In the course of responding to this, Dr S made the comments about which the Claimant complained. He explained that there may be a greater difficulty removing her tooth as people of African-Caribbean origin have denser bone and, according to the Claimant, gave an example of a previous incident where this had occurred. The Claimant added in her witness statement that Dr S had “giggled” whilst explaining this to her.
The Claimant subsequently brought a claim against Dr S seeking damages for discrimination under sections 13 and 19 of the Equality Act 2010 and for harassment under section 26 of the Equality Act 2010. Following a hearing where Clyde and Co argued that the Claimant had failed to properly particularise her claim, the Court ordered that the claim should proceed solely on the basis of the allegation of harassment and listed the case for a trial on this issue.
Section 26(1) of the Equality Act 2010 provides that:
A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
i) violating B's dignity, or
ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B
Section 26(4) provides that:
In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account-
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
The relevant protected characteristic in this case was race.
Case law has established that in order to succeed under section 26 the Claimant must establish, first, that the Defendant engaged in unwanted conduct; second, that the unwanted conduct was related to a protected characteristic; third, that subjectively, the Claimant perceived that the Defendant’s comments had the effect of violating her dignity and/or creating a humiliating environment for her; and finally, that objectively it was reasonable for the Defendant’s conduct to be so regarded.
At trial, the Claimant did not contend that the statement made by Dr S - that people of African Caribbean descent can have more dense bone - was untrue, nor that this might affect the difficulty of removing the tooth. Instead, the Judge found that focus of her complaints was now that Dr S had “giggled” when he gave her this advice, and that Dr S had made an assumption about her ethnicity before he made this comment. The Judge, following the submissions made by Roger Harris, Counsel instructed by Clyde and Co on behalf of Dr S, placed significant weight on the fact that the “giggling” was not referred to in the email of complaint written by the Claimant the day after the consultation; nor the Letter of Claim, the Particulars of Claim or the Reply. He was not satisfied that Dr S did in fact “giggle”.
The Judge consequently found that the reference that Dr S had made to the Claimant’s ethnicity was not “unwanted conduct” for the purposes of section 26(1)(a) as the Claimant’s ethnicity was relevant to the discussion of risks faced by the Claimant. He found that Dr S’s conduct did not have the effect of violating the Claimant’s dignity, nor did it create an intimidating, hostile, degrading, humiliating or offensive environment, either on a subjective or an objective basis. The Claimant’s case was therefore dismissed and judgment was entered for the Defendant.
Cases under the Equality Act 2010 are increasingly common and, like this one, are often made wholly without merit. The personal impact of these cases upon clinicians is perhaps even more significant than claims in clinical negligence. This successful defence is just one example of Clyde and Co’s significant experience in supporting the treating clinician throughout these difficult cases and achieving a discontinuance/dismissal. In fact, Clyde & Co have a 100% success rate in rebutting these novel claims brought under the Act arising out of clinical care.