ABC v University Hospitals of North Midlands NHS Trust: 1304553/2017

EMPLOYMENT TRIBUNALS

Case No 1304553/2017

Between

ABCClaimant

University Hospitals of North Midlands NHS TrustRespondent

Before

Employment Judge Mark Butler

In person for claimant

Mr M Fodder (instructed by Counsel) for respondent

Date 21 February 2021

JUDGMENT

The unanimous decision of the employment tribunal is that:

[1]The claims are not struck out

[2]The case is postponed.

[3]The case will be relisted for 15 days at the next available dates.

REASONS

These are the reasons given at the request of the claimant following oral judgment and reasons delivered at the hearing.

[4]This case was listed for a 10-day hearing, starting on 03 February 2020. However, the claimant had not produced witness statements in accordance with tribunal directions, nor had she produced a schedule of loss.

[5]The claimant applied for postponement of this case based on medical grounds on 14 December 2019. However, this was not supported by appropriate medical evidence. The claimant’s initial application to postpone this hearing was not accepted. Consequently, Employment Judge Findlay directed that the claimant must provide appropriate medical evidence by 20 January 2020 to support her postponement on the basis that she was unable to prepare or attend the hearing. The claimant sent some documents to the Employment Tribunal on 12 January 2020, but alongside these made a further application to postpone the final hearing. This resulted in Employment Judge Perry, on 24 January 2020, directing the claimant to again provide medical evidence to show that she was unable to prepare for the hearing, and to show cause as to why the claim should not be struck out. Employment Judge Perry placed a deadline for compliance with his Direction of 4pm on 31 January 2020.

[6]The claimant sent by email a number of attachments to the Employment Tribunal on 31 January 2020, in an attempt to comply with the directions of Employment Judge Perry.

[7]This tribunal considered the matter of striking out the claims on day 1 of the final hearing. And we handed down this decision on day 2. In considering the matter we were assisted by a short bundle prepared by the respondents, which included a chronology and outline submissions, along with some of the medical evidence sent by the claimant, and a number of authorities. We were also assisted by submissions made on behalf of the respondent, and by the claimant herself. LAW AND DISCUSSION

[8]Mr Fodder has helpfully laid out the relevant Employment Tribunal rules and some useful case law in his outline submissions. And we have been taken to each of those in turn by Mr Fodder. We refer to the relevant legal principles where necessary and where they are relevant to this decision.

[9]In essence, we were asked to consider the application of Rule 37 of the Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013 to the claimant. Rule 37 gives the Employment Tribunal the power, at any stage of proceedings, either on its own initiative or on the application of a party, to strike out all or part of a claim or response. Strike out must fall within one of several expressed grounds for strike out. Those relevant to this case are those raised by Mr Fodder in his skeleton, namely: i. Non-compliance with any of the rules or with an order of the tribunal ii. That it has not been actively pursued iii. That the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response.

[10]We note that we heard no submissions by Mr Fodder in relation to the claim not being actively pursued and so make no further comment on that.

[11]We were reminded of the approach to be adopted when considering whether to strike out a claim, as approved and applied in the Hasan v Tesco Stores (2016)

UKEAT/0098/16

case: i. Has one of the specified grounds for striking out been established? ii. Does the tribunal consider, as a matter of discretion, that the claim should be struck out, or should the order be amended or should a deposit be ordered?

[12]That highlighted in Hassan is the approach that this employment tribunal adopted when considering whether to strike out the claims.

[13]Mr Fodder helpfully asked the tribunal to take note of Rule 6 of the ET Rules, which is applicable to cases involving non-compliance of Tribunal directions in the ordinary sense. In effect, Rule 6 lays down optional actions the tribunal may consider in such circumstances. We are mindful that whatever decision we reached, the overriding objective was our guiding principle. Has one of the specified grounds for striking out been established? (1) Non-compliance with any of the rules or with an order of the tribunal

[14]There have been clear Directions in this case as to exchange of Witness Statements and as to serving a schedule of loss on the respondent.• Employment Judge Gaskell directed at Hearing 31 January 2019, Schedule of Loss by 29 March 2019, and Witness Statement exchange by 27 September 2019.

• Employment Judge Perry’s Direction of 15 November 2019 amended the dates for sending the Schedule of Loss and for exchange of Witness Statements to 06 December 2019 (this was after the parties sought to agree changes to the directions themselves).

[15]Having not complied with these Directions, the claimant applied for postponement of this case based on medical grounds on 14 December 2019. However, this application was not well supported by medical evidence.

[16]This all culminated in:a. First, Employment Judge Findlay directing that the claimant produces medical evidence to show that she was unable to prepare for or to attend the hearing by no later than 16 January 2020; and

b. Secondly, Employment Judge Perry expressing that the claimant was in breach of the tribunals order to exchange their Witness Statement(s), and directing her to provide medical evidence to show that she was unable to prepare for the hearing, and to show cause why the claim should not be struck out. This was required by 4pm on 31 January 2020.

[17]It is the case that the claimant has sent in some documents to the employment tribunal, as attachments to an email, that she says is medical evidence that supports her position that she was unable to prepare for the hearing. However, in this tribunal’s opinion, it does not reach that height. And although the documents do raise a number of health issues at varying dates, which does show that the claimant has had some medical problems, these documents do not provide the necessary evidence as directed by Employment Judge Findlay or Employment Judge Perry.

[18]The closest the documents come to satisfying that requirement is the letter from the claimant’s GP of 28 January 2020, where it is stated that: “Miss Onuigbo tells me that she is due to attend a court hearing soon and does not feel able to prepare her legal case for such a hearing. Clearly with the above history she does have a lot going on with her physical health and I would be grateful if you would consider postponing the hearing for the time being.”

[19]There is no clear statement that the claimant was unable to prepare for this hearing, nor that she was unable to attend. For the avoidance of doubt, we have considered each of the documents that the claimant sent into tribunal as evidence of her inability to prepare for this hearing. And these have not changed our view in this respect.

[20]In these circumstances, this tribunal has no difficulty in agreeing with the view taken by Employment Judge Perry in that the claimant remains in breach of the tribunals order to exchange their Witness Statement(s). We also find that the documents supplied as medical evidence has not satisfied either the earlier direction of Employment Judge Findlay or that required by Employment Judge Perry to show cause.

[21]For completeness there was also a breach of Employment Judge Gaskell’s Direction in relation to identifying any further documents to be included in the bundle, with the date for compliance being missed.

[22]For the avoidance of doubt, we found that the first part of strike out pursuant to rule 37 has been satisfied in that the claimant has failed to comply with Court directions. (2) Whether a fair hearing is still possible

[23]Turning to this ground for strike out. We start by observing that striking out on this ground alone does take an exceptional set of circumstance, and that is clear from the decided case law in this area. However, consideration of whether a fair trial is still possible retains importance when considering whether as a tribunal we ought to use our discretion to strike out for the other grounds, including strikeout for non-compliance with an order. Authority for this proposition is the judgment of Judge Richardson in Weir Valves and Controls (UK) Ltd v Armitage

[2004] ICR 371

, who identified this as a factor to be taken into account, alongside others including the magnitude of the default, whether the default is the responsibility of the solicitor or the party, and what disruption, unfairness or prejudice has been caused (see paragraph 17).

[24]In considering whether a fair trial was possible. We as a tribunal need to take account of all relevant circumstances. It is clear that in terms of the default in respect of the failure to exchange Witness Statements, not so much the Schedule of Loss, the default has impacted upon the ability of this claim going ahead. And that is significant.

[25]One such exceptional case where there was the tribunal did strike out a claim on the particular ground of a fair hearing no longer being possible is the Riley v CPS

[2013] EWCA Civ 951

case, which we were taken to by Mr Fodder. The factors considered important in supporting the decision to strike out in Riley included:• The mounting costs for the respondent

• The dimming of recollections of the respondent’s witnesses

• The worry and stresses of the respondent’s witnesses

• Whether any of the respondent’s witnesses had left their employ

• The absence of any definite prognosis of any recovery sufficient to take part in the proceedings in the foreseeable future

[26]As part of this analysis, it is clear that we must include in our analysis the fairness to not only the claimant but also the respondent.

[27]However, the Riley case, and borrowing the words from Mr Fodder, does not sit on all fours with this case before us. On reflecting on the Riley case, it is clear that the extent of the medical evidence, and the clear expressions by the medical practitioners as to Ms Riley’s fitness to participate in proceedings, played an important part in the decision to strike out the claim on the grounds that a fair trial was no longer possible. And this is clear through that recorded at para 23 of the judgment, which refers to the Employment Tribunal judge’s decision, and again clear in paragraphs 26 and 28 of LJ Longmore’s judgement. In this case before us there has simply been no view expressed as to the claimant’s fitness to participate in proceedings either in the near past, at present, or in the future. And further, there have not been a long history of attempts to get any such prognosis, which is a relevant consideration in our opinion.

[28]Turning to each of the factors considered in Riley and considering them in the context of this case:• Mounting costs. This case has already seen significant costs being incurred by the claimant, the respondent and the tribunal. In fact, this is the fourth day that has been dedicated to this case to date. There will be clear cost implications should the case not be struck out and the case be relisted. We accept that there are costs in terms of staff time for those acting as witnesses.

• This case does involve recollections of events from as far back as 2014. The longer this case is delayed being heard the greater the impact on the cogency of the evidence. This is a real concern in this case. And this is a case where recollections of events are going to be important. Some of the events that form part of the claim are events that are significantly in the past, which places this case, at least in terms of the allegations that go back to 2014/15, on the cusp of a fair trial being difficult. However, we are mindful that the respondent’s case is very much based on documents that were produced contemporaneously, and that their witnesses have all produced their witness statements in preparation for today, which will have helped their memory in this regard.

• This is a case of discrimination, and this inevitably brings with it stresses for witnesses that are being called or identified in the proceedings. However, we also note that none of the witnesses are named respondents, a factor that we have taken into account.

• We heard no evidence of witnesses having left the employ of the respondent yet. But we appreciate the possibility of this happening over the foreseeable future.

• There is no prognosis as to when the claimant will be fit to attend hearing. Although we did not expect to see any such prognosis given there is no medical evidence, in our findings, to suggest that the claimant is unfit to attend this hearing, nor unfit to have prepared her witness evidence, something we have already explained earlier. Nor was she directed by either EJ Findlay or EJ Perry to enquire about such prognosis. As a litigant in person we would not expect such a query to automatically spring to mind. Had the claimant been directed to produce medical evidence that explained any prognosis of when she was likely to be able to proceed with her claim, then submissions in relation to this being missing would have carried greater weight. But that is not the case here.

• We have taken account of the fact that the claimant has attended yesterday and today and that she was more than able to make her points. Which, in a sense, supports our finding of her ability to participate in proceedings going forward.

[29]We are not convinced that this a case that reaches that level of a fair trial no longer being possible in these circumstances. Although, we do add that it is a very narrow decision in that respect having balanced the factors that have just been explained. Does the tribunal consider, as a matter of discretion, that the claim should be struck out, or should the order be amended, or should a deposit be ordered?

[30]The discussion of whether a fair trial is possible also forms part of our analysis when considering whether to use our discretion to strike out the case too. This discussion is not repeated again here.

[31]We are mindful that the claimant has not been subject to any unless orders. Nor, until the 24 January 2020, has the tribunal been moved to entertain striking out her claims.

[32]We accept that the claimant did have legal representation of sorts, which led to compliance with directions, save for those mentioned earlier. This is not a case of wholesale non-compliance with directions, and the case is almost ready to be heard. We did hear from the claimant that she was seeking legal representation and had been crowdfunding to that end. It is a factor that we have considered but, given that we have no evidence that she is on the verge of securing legal representation, we have placed little to no weight on this particular factor.

[33]But we have also considered that, as per LJ Sedley in Blockbuster Entertainment Ltd v James

[2006] EWCA Civ 684

, it would take ‘something unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial’. And further that the tribunal should consider whether there is ‘less drastic means to the end for which the strike-out power exists’. This builds on Judge Richardson’s decision that ‘…tribunals should consider whether a lesser sanction might be appropriate in the circumstances’ (at paragraph 33 of Armitage).

[34]We consider that in these circumstances we do not think it appropriate, taking account of the overriding objective, to strike out the claimant’s claims. We consider there to be lesser sanctions to strike out that we can impose to achieve the result of taking this case to its conclusion, and this is in the form of unless orders.

[35]After reaching this conclusion not to strike out the claim, we then turned to consider whether this case could start on one of the 10 days already listed, or whether it would need to be postponed.

[36]We are mindful that one of the core principles of fairness in litigation is that every party should be permitted to present his or her case fully and openly. And having reflected on the current state of the case, the claim is simply not ready to be heard. On balance, having considered the claimant’s submissions, we do not consider that the claimant will be in a position to have her case heard this week, and it is very unlikely to be in a position to be heard next week. The claimant is bringing numerous complex claims, and is currently seeking legal assistance, which in the claimant’s submissions is needed in order to produce the statement in question. And there is a significant risk that the claimant may well find herself unable to secure legal representation at short notice, to help her produce her witness statement with a view to starting this hearing within the current listing.

[37]Further, there is some evidence, albeit limited, that the claimant does have some health matters that do appear to be impeding her in a number of ways, although we have accepted, as already stated, that it does not reach that as required by EJ Findlay or EJ Perry. This is a factor that we needed to take into consideration.

[38]Additionally, having a witness statement very late in the day makes it very difficult for the respondents to prepare their case properly. We also took account that this case, if it started this week, given we have lost 2 days already, or early next week, it would certainly go part-heard, which introduces the additional difficulty of finding an appropriate date where this composition of tribunal can sit. In our view, it would make sense to list this case for longer, and in one go. All of which are circumstances we took into account. We are further minded that this will be the first postponement in this case.

Conclusion

[39]Taking all the circumstances discussed above into account, we consider that, applying the overriding objective, this case can only be fairly disposed of by vacating the remaining dates and postponing this hearing, and giving the claimant an opportunity to get her case ready to be heard. In doing so, we consider that a postponement along with a series of unless orders is an appropriate course of action. These will be contained in a separate Case Management document.

Findings of fact

[40]Following the interviewing of candidates, each candidate was then scored on a score sheet based on their interview performance. An example of the score sheet can be seen p.284e.

[41]The respondent destroys the majority of recruitment documents after a period of 12 months, in line with its Human Resource Storage Guidelines (seen at p.215a of the bundle). The only documents that were retained from the 2014 interviews were the completed pro-forma answer sheets of successful candidates.

[42]On 14 January 2014, the claimant interviewed for a Rotational Band 5 Physiotherapist role by Ms Teasdale and Ms Hellis. This interview consisted of 8 pre-prepared questions. The claimant’s answers can be seen at pp220-225. Answers provided by other candidates, namely AB and LB can be seen at pp.225a-225l.

[43]At the interview, the claimant indicated that if she was not successful in interview for the Rotational Band 5 Physiotherapist role then she would like to be considered for the alternative roles of Band 5 Bank Physiotherapist or a temporary Band 3 Physiotherapist.

[44]The claimant scored at least the minimum score required to be offered an alternative role; however, was not ranked high enough to be offered one of the Band 5 roles that she applied for.

[45]During feedback over the phone about her interview with Ms Hellis, the claimant indicated that she would like to take up the offer of a role as a Band 5 Bank Physiotherapist. However, following discussions the claimant had with a colleague in her then employment, she decided instead to accept a temporary Band 3 Physiotherapist role. The claimant was subsequently offered by letter, dated 15 January 2014, a temporary Band 3 Physiotherapist role (with end date of 31 March 2014) with the respondent. The claimant accepted this role.

[46]Both AB and LB were interviewed by Ms Teasdale and Ms Hellis on 14 January 2014:a. LB was appointed following interview on a 1 month temporary Band 5 contract. Which was later extended until 31 May 2014. LB was further interviewed for a permanent Band 5 role on 05 June 2014 (interview notes at pp.284a-284b). LB’s contract was extended, until they were offered a permanent role from 01 September 2014.

b. AB was appointed on a temporary Band 5 contract from 30 January 2014. AB’s contract was extended on a number of occasions, before they were recruited to a permanent Band 5 role on 30 April 2014.

[47]On 24 February 2014, the claimant commenced employment as a Temporary Band 3 physiotherapist. This contract, which was initially due to expire on 31 March 2014, was subject to a number of extensions up until 31 October 2014.

[48]On 05 June 2014, the claimant was interviewed for a Band 5 Physiotherapist role by Ms Teasdale and Ms Hellis. The claimant was not successful in securing this role at interview. Again, in interview feedback, it was explained to the claimant that she had performed well in interview but that there were other candidates that had scored higher based on the interview questions asked.

[49]SD was interviewed on 09 June 2014. A copy of Ms Hellis’s interview notes can be seen at pp284a-284b. They were appointed to a temporary Band 5 post on 07 July 2014, before this was made permanent on 01 November 2014.

[50]PO was interviewed on 08 October 2014. They were offered a temporary Band 5 post on 16 December 2014, before starting a permanent post on 01 April 2015.

[51]On 27 October 2014, the claimant was appointed to a temporary Band 5 Physiotherapist role. This was without a further interview. Although beyond the respondent’s three months rule (that being a rule operated by the respondent that allows it to appoint to a vacancy without a need to reinterview a candidate, so long as the vacancy arises within 3 months of the candidate’s last interview with the respondent) that the respondent has, the claimant was appointed to this post based on her interview performance of 05 June 2014. This contract had an end date of 31 January 2015 (see p.303 of the bundle).

[52]The claimant’s temporary post was extended on 28 January 2015, with an end date fixed at 31 March 2015 (see ppp.330-331).

[53]On 01 April 2015, the claimant is appointed to a permanent Band 5 physio role.

[54]On 19 January 2015, Ms Teasdale and Ms Hellis appointed Ms Nkechinyelu Molokwu, who is black/Nigerian, to a temporary Band 5 Physiotherapist role. Before her post was made permanent on 01 January 2016. Ms Molokwu was promoted to a Band 6 role on 02 October 2017, following a successful interview before a 3-member panel, which included Ms Brown.

[55]On 16 September 2014, the claimant met with Ms Teasdale. At this meeting:a. the extension of the claimant’s temporary contract was discussed.

b. It was also identified by the claimant that a rotation to acute respiratory care would support her in one of her learning and development needs. This is the unchallenged evidence of Ms Teasdale.

[56]By email, dated 17 September 2014, Ms Teasdale confirmed that the claimant’s temporary contract was being extended until 31 October, and that she had asked the principal therapists to look at doing a swap for her onto acute medical wards, and to look at supervision arrangements at band level 5, as per their conversation the day before (see p.293b).

[57]The claimant replied to Ms Teadale on 19 September 2014 (pp293a293b). The claimant explained:

[58]The management team, including Ms Teasdale, considered that the best area for the claimant to gain this learning and development would be Critical Care. This was likely based on there being access to appropriate patients, staffing levels of the team and availability of senior staff to give the best level of supervision and training support. Again this is the unchallenged evidence of Ms Teasdale.

[59]The decision to rotate the claimant into the critical care team was communicated to the claimant by Ms Teasdale by email on 19 September 2014, when she wrote:

[60]This plan was never objected to by the claimant at the time.

[61]None of Simon Davies, Pip Oram, Liam Buckley, Ashley Bridges or Nkechinyelu Molokwu had specific arrangements to work on critical care; however, none of them had specific learning and development needs that would require such an arrangement.

[62]Ms Mukherjee, as part of her role, at least until she left the employ of the respondent on 21 December 2018, would complete the relevant online form that provides Certificate of Sponsorships, along with a unique certificate number, which is then used by an employee to apply for a visa.

[63]Ms Mukherjee would apply for approximately 75-100 Certificates of Sponsorship per year. She did not issue a 5 year Certificate of Sponsorship to any employee of the respondent. The practice of the respondent, in the mind of Ms Mukherjee, was that it would only issue tier 2 visas of up to 3 year in length. This is a practice that Ms Mukherjee adopted due to her understanding.

[64]Ms Khoo was issued a Certificate of Sponsorship, with the respondent named as the Sponsor, on 24 November 2014. This covered the 12 month period of 01 December 2014 to 30 November 2015 (see pp.310a-310d).

[65]The claimant was issued a Certificate of Sponsorship, with the respondent named as the Sponsor, on 25 November 2014. This covered the 12 month period of 01 December 2014 to 30 November 2015 (see pp.310e-310f).

[66]Ms Khoo was issued a further Certificate of Sponsorship, with the respondent named as the Sponsor, on 21 October 2015. This covered the 3 year period of 15 December 2015 to 14 December 2018 (see pp.413- 414).

[67]The claimant was issued a further Certificate of Sponsorship, with the respondent named as the Sponsor, on 09 November 2015. This covered the 3 year period of 13 December 2015 to 12 December 2018 (see pp.431-432).

[68]Ms Khoo’s unchallenged evidence, and which we accept, is that she had never been offered a choice between a 3 year and a 5 year Certificate of Sponsorship.

[69]In an email discussion on 25-27 November 2015 between the claimant and Ms Khoo concerning visa application/certificate of sponsorships, the claimant asked a question concerning how long Ms Khoo had applied for. Ms Khoo’s response was that ‘If you have a permanent position, you just have to decide if you want 3 or 5 years and pay accordingly’ (see p.438a438b).

[70]Following email discussion with Ms Poulson, the claimant applied for and received a 5 year Certificate of Sponsorship.

[71]At the Stage 2 Capability meeting (notes of which are at pp1599 -1605, which took place on 23 June 2017, it was explained to the claimant by Ms Brown that, based on advice that she had received, that the claimant would be placed on clinical suspension form 26 June 2017, but that she would continue with non-clinical duties. Such suspension is recorded as being partly at the claimant’s request and partly due to workforce planning difficulties (see p.1604).

[72]On 26 June 2017, the claimant was suspended from clinical duties in line with that discussed on 23 June 2017.

[73]The claimant was allowed to use her non-clinical time to meet with her union representatives and to work on her case for the hearing.

[74]All employees of the respondent are subject to the respondent’s Information Governance Policy. This regulates access to patient notes, amongst other things. Breach of which is a disciplinary offence.

[75]Two members of staff separately informed Ms Brown that they believed that the claimant was accessing patient clinical records for the purpose of developing her statement of case. Ms Brown checked with Ms Hellis as to whether the claimant had received permission to access patient notes and patient identifiable data, which it was explained that she had not.

[76]Ms Brown, following HR advice from Ms Barnes, advised Ms Cain that she would need to contact Ms Barnes to arrange legitimate access for the claimant to patient notes in compliance with the Information Governance Policy. This is a plausible conclusion, given that Ms Cain engaged in communication with Ms Barnes with respect access to patient notes from 24 July 2017 (see p.588C), and which references data protection matters.

[77]Ms Brown explained to the claimant, discretely, reminded the claimant of the Information Governance Policy and that she should stop accessing patients’ notes for the time being and that she should contact Shona Cain regarding this. Although the claimant under cross examination stated that Ms Brown did not say this, on balance we find that Ms Brown did. This paragraph, along with the preceding two paragraphs, is consistent, to a large degree, with that present in the claimant’s WhatsApp message discussion with Ms Cain at pp686x-686z.

[78]On 25 July 2017, Ms Cain phoned Ms Barnes to request some patient notes on behalf of the claimant to support her case. This was followed up by email (see p.585f). MS Barnes replied by email on that same date, seeking information on which notes the claimant was wanting, and explaining that she would have to ‘link in with clinical governance’, as she understood that it was them that would arrange for the claimant and Ms Cain to go and view them.

[79]Ms Barnes discussed the claimant’s request for notes with the governance team, who advised her that she would need to arrange with health records for the notes to be provided to HR, before then arranging for Ms Cain and the claimant to view them. It was explained to Ms Barnes that the nothing could be taken away form the notes, however, a redacted version could be made available of any notes on the day of the hearing for the panel. This information was emailed to Ms Cain on 26 July 2017, whilst also stating that this could be arranged as soon as details of the patients required were provided (see p.585c).

[80]On 26 July 2017, Ms Cain made a request by email to Ms Barnes for access to three sets of patient notes: patient JB, patient OAM and patient EF. As part of this email, Ms Cain also asked for an extension of time to submit the claimant’s statement of case, as they would need to access the patient notes before this could be completed (see pp.585b-585c).

[81]On 26 July 2017, at 13.52, Ms Barnes emailed Ms Cain to explain that she was being sent copies of notes for JB and EF, and arranged for the claimant and Ms Cain to view these in her presence on the afternoon of 27 July 2017. On that same day, at 14.32, Ms Barnes again emailed Ms Cain to explain that the she and the claimant could have access to the notes for patient OAM (which were held on the Electronic Document Records Management system(, with Ms Hellis in attendance, on the 26 July 2017 after 3.30pm, but that Ms Cain would have to make the specific arrangements with Ms Hellis direct. Confirmation that the claimant’s request for an extension to the deadline to provide her statement of case had been granted was also provided to Ms Cain in this email (see pp.585a-585b).

[82]The claimant and Ms Cain met with Ms Barnes to review the notes of JB and EF on 27 July 2017.

[83]The claimant, nor Ms Cain on the claimant’s behalf, contacted Ms Hellis to arrange to see OAM’s notes. Although Ms Barnes presumed that the claimant had met with Ms Hellis to view the file, we find that on balance this unlikely took place and that was because the claimant nor Ms Cain arranged for the viewing to take place. Ms Hellis gave no evidence of such a meeting, and although not in the claimant’s witness evidence, she was clear under cross examination that she did not meet with Ms Hellis. Further, there are no emails or record of contact by the claimant or Ms Cain to arrange the viewing of OAM notes with Ms Hellis.

[84]However, despite not meeting with Ms Hellis to review OAM’s notes, the claimant did view the OAM patient notes and was provided with a copy of them in advance of the panel hearing. This is the unchallenged evidence of Ms Barnes’s supplemental witness statement (paragraph 5), and the notes of OAM are attached to the claimant’s statement of case (see p.1666). Which must mean that she had had access to them at some point.

[85]On 28 July 2018, the claimant submitted her statement of case.

[86]On 02 August 2018, the claimant sent an email to Ms Barnes and requested another set of patient notes, this being patient RC. Ms Barnes replied that same day explaining that it was too short notice. This was told to the claimant as the capability panel hearing was due to take place the following day (pp588g-588h).

[87]On 14 September 2017, Mr Jim Fahie, who was the claimant’s new union representative, emailed Ms Barnes requesting an anonymized copy of patient notes that had been requested preciously (p.614b). Following emails between MS Barnes, Ms Poulson and Ms Haires as to who would be appropriate to deal with these matters, it was decided that Ms Haire’s should be the point of contact for such requests for the purposes of the appeal, but with Ms Barnes in support (see pp.614a-614b).

[88]The process for requesting notes for the purpose of the claimant’s appeal was set out in an email composed by Ms Barnes, and which was sent to Mr Fahie on 20 September 2017 (p.614h).

[89]The claimant on 25 September 2017, by email to Ms Haire, made a request for two sets of patient notes, those being for patients RC and CB. (pp.618d-618e).

[90]Ms Haire by email on 28 September 2017 agreed that the claimant could view the notes as requested, under supervision, and that this should be arranged through Ms Barnes (pp.618b-618c).

[91]Ms Barnes requested the names so that she could locate the relevant patient notes, but asked that either the claimant or Mr Fahie calls her with the names rather than putting them in an email (pp.618a-618b).

[92]At some point between 28 September and 02 October 2017, the claimant had had a phone conversation with Ms Barnes. The names of patients, for which notes were required, was clarified as being patients with initials RC and CB only, and it was arranged for the claimant to view the notes under the supervision of Ms Barnes on 02 October 2017.

[93]On 02 October 2017, at 09.28, Ms Cain emailed Ms Barnes with a list of 11 patient names, which she says that the claimant and Mr Fahie are requesting to look through. Ms Barnes responded to Ms Cain to explain that the claimant had been in contact directly with her, and had only asked to see two sets of patient notes, namely CB and RC.

[94]The claimant attended a meeting with Ms Barnes, where she was given access to the patient notes relating to RC and CB. The claimant confirmed that she only wanted access to the two sets of patient notes and copied the relevant sections she wanted. These formed part of the appeal bundle. The claimant produces no witness evidence on this, and her answers under cross examination on this point were ambiguous. Ms Barnes gave clear answers under cross examination, that is consistent with the written evidence that we have seen. ISSUE (1st capability process):

[95]The capability management process was provided for under Policy No HR29 ‘Capability Process’. There are two relevant policies in this case. There is the old policy, which was used between July 2010 and May 2015 (see pp.139-170), and there is the current policy that came into effect from May 2015 (pp.171-191).

[96]Whilst working as a Band 3, the claimant completed a placement on a non-acute step down facility in the community for frail elderly patients, known as Stadium Court. For the most of this rotation, the claimant received positive feedback. During this placement, Ms Gemma Cooke raised a concern with Ms Brown about the claimant’s manual handling practice. The concern was that using unsafe methods to move the patient could have caused injury to the patient and both of the Technical Instructors, which led to an interjection by Ms Cooke.

[97]During February 2015, the claimant applied for a permanent Band 6 respiratory physiotherapist position. The claimant was shortlisted for this role. The claimant evidenced that she had previous respiratory physiotherapist experience in her application, as this was a requirement to be shortlisted for this role.

[98]At interview on 27 February 2015, the claimant was asked questions relating to interpretation of arterial blood gasses (ABG’s) or contradictions to manual hyperinflation, amongst other things (a copy of the claimant’s answers in interview are at pp.353h-353m).

[99]As part of the claimant’s on-call induction with Ms Massey, a Senior Physiotherapist, Ms Massey on 13 March 2015 raised concerns about the claimant’s clinical performance in relation to a number of matters, including providing normal values for ABG’s or interpreting what type of failure a patient was in. Further, question were raised in relation to a lack of clinical reasoning. This led to an action of not allowing the claimant to work unsupervised, and the need to introduce an action plan to develop objectives (see Ms Massey’s feedback on the claimant at pp.767-769).

[100]Ms Thomas, also identified similar issues, to that noted in the 3 paragraphs immediately above this one, with the claimant during her initial 6 weeks (02 February 2015 to 13 March 2015) of her cardiothoracic rotation.

[101]Following a discussion between Ms Brown and Ms Thomas, it was decided that Ms Thomas would meet with the claimant with a view to developing a learning package, with clearly defined learning objectives.

[102]The claimant and Ms Thomas had a 1-2-1 meeting on 13 March 2015. During the meeting, the claimant raised concerns about feeling under pressure and in relation to the level of scrutiny she felt under. The meeting was used to develop a learning plan to help the claimant improve her clinical and non-clinical skills. This was to be done using clear weekly objectives alongside long-term objectives, with progress to be assessed in weekly meetings. These weekly meetings would also be used to identify whether the claimant had any other learning needs that needed to be addressed. The next agreed date of review was recorded as 18 March 2015. The claimant signed the form in agreement with its contents (see p.771).

[103]Although the meeting of 13 March 2015 was recorded on a discussion form that has a header that suggests that it was part of the respondent’s disciplinary process, this was not in fact part of such a process. The claimant was not put through a disciplinary process at this time. Ms Brown explains that this form was used to ensure that there was structure to file notes. This was consistent evidence in Ms Brown’s written evidence, her oral evidence and is consistent with the correspondence between Ms Brown and Ms Barnes of HR during May 2015 (see p.887).

[104]The claimant was absent from work from 16 March 2015 to 18 March 2015 with sickness, before being on annual leave from 20 March 2015 to 07 April 2015. Ms Thomas was on annual leave from 08 April 2015 to 10 April 2015.

[105]On 11 and 12 April 2015, the claimant worked with Ms Claire Collinge as part of her on-call induction. Ms Collinge provided feedback on the claimant’s performance during that weekend. Ms Collinge raised a number of matters including that the claimant needed continuous direction and prompting with all patients, she wasn’t forthcoming with questions, that she did not show initiative and that her communication with patients was confusing at times. Ms Collinge concluded that she would question whether the claimant was competent enough to go on the rota (see email at p.1065).

[106]The first review of the claimant’s progress toward the agreed objectives took place on 16 April 2015. This meeting was between the claimant and Ms Thomas. In this meeting, the claimant explained to Ms Thomas that there were differences in respiratory physiotherapy approaches between the UK and Nigeria.

[107]On 17 April 2015, the claimant, Ms Thomas and Ms Cormie had a further meeting. It was noted in this discussion that the structured learning plan had been reviewed, and that a more structured plan would be beneficial to the claimant. In this meeting, it was suggested that the claimant could help the senior physiotherapists understand her learning needs by writing down ‘a summary of the types of respiratory patients and conditions she had dealt with and seen in Nigeria and to identify with what she had seen since working here what was unknown/unfamiliar to her’. A more detailed learning plan was presented to the claimant in this meeting, which was to take the form of a 4 week planned learning framework, followed by a 2 week period of independent caseload (so long as her supervisors identified safe practice in the initial 4 week period). Band 7 Supervisor’s would review the claimant’s progress on a weekly basis (see pp.839-841). The new learning plan, which was to start on 20 April 2015 is set out at pp.779-783. This was the start of the informal stage under the capability policy, which was explained to the claimant in the meeting of 17 April 2015.

[108]During the initial 4 week of this process, although there were some issues highlighted by Band 7 supervisors, it was felt that the claimant ‘had shown improvement enough to warrant a trial of independent case load management and also to assess her ability without direct supervision to assess, identify, problems rationalise treatment, implement treatment analyse and formulate treatment plans for the future…’ (a record of the claimant’s weekly progress is at pp.835-837).

[109]During week 5 of the informal stage of the capability process, 3 incidents were identified following the withdrawal of supervision, which were considered unsafe clinical incidents (the evidence of Ms Brown Witness statement, paragraphs 36-39 went unchallenged on these points):a. Blood pressure patient: An unsafe practice of mobilizing a patient without first reassessing the patient following a drop in the patients normal blood pressure. Failing to accurately record in the patients’ notes that the reading had been taken by the claimant herself or from the patients observation charts. Failure to perform serial monitoring of the patient’s blood pressure during treatment, or to check blood pressure during standing or exercise, or to ask specific questions relating to the patients symptoms that linked to blood pressure changes when she stood the patient up (see point 4 on both p.874 and p.875).

b. Cardiothoracic patient: that the claimant mobilized a cardiac patient under 30 minutes after they had their CVP line removed, and had not documented vital cardiac/blood pressure observations. (see point 3 on p.874 and p.875)

c. Cardiothoracic patient (2): that the claimant had not realized that a patient, who she was transferring from a bed into a chair, was slipping out of the chair, and which needed Ms Thomas’s intervention (ss point 2 on p.873 and p.874).

[110]The claimant met with Ms Thomas and Ms Cormie on 22 May 2015. The claimant was provided with a copy of a letter in which the discussion was recorded. The claimant at no point challenged the accuracy of this letter, and therefore this must be an accurate record of the discussion. Within the letter, and therefore during the meeting, it was explained to the claimant that it was not safe for her begin on-call respiratory work. The claimant was further advised that she would be notified of what the decision on next steps were once Ms Thomas and Ms Cormie had discussed matters with Ms Brown.

[111]Ms Thomas sent an email to Ms Brown on 22 May 2015. This included an attachment, which contained clinical concerns that Ms Thomas had with the claimant (see pp.880-884).

[112]Ms Brown sought guidance from HR (pp.885-889). HR advised that the claimant should be moved on to the new Capability Policy, which had now come into effect.

[113]Ms Brown and Ms Cormie met with the claimant on 03 June 2015. Ms Brown made the decision to escalate the capability management to the formal process under the new May 2015 Capability Policy. This was because the claimant had not yet progressed to a satisfactory level of competence in the field of respiratory physiotherapy. It was explained to the claimant that this would involve a more structured and supportive package to assist develop the claimant’s performance. It was agreed that this package would be a 7-week package. A letter summarising the discussions that took place in that meeting were sent to the claimant as part of a letter dated 06 July 2015 (pp.362-363).

[114]Ms Cormie and the claimant developed what is described as SMART objectives, that formed the basis of the claimant’s development plan. These were developed to match the performance gaps that had been identified (pp.915-919).

[115]The claimant met with her supervisors weekly, which was to review the claimant’s progress against the SMART objectives. 116. 0n 30 June 2015, Ms Cormie met with the claimant to review the claimant’s progress over the first 3 weeks of the learning package. As part of this discussion, areas were identified where the claimant had made progress against her SMART objectives. However, it was also highlighted that there was a ‘lack of demonstration of knowledge’ which was having a negative impact on time management’ (pp.934-936).

[117]On 02 July 2015, the claimant attended at the 4 week review with MS Brown. During this meeting the claimant raised a number of concerns with the process, which led to Ms Brown modifying aspects of it. (pp.950- 951).

[118]The claimant was absent from work on sick leave between 09 July 2015 and 16 July 2015.

[119]The claimant met with both Ms Brown, and Ms Sara Cummins, a Principal Therapist with the respondent on 17 July 2015. It was explained to the claimant that Ms Brown had discussed with HR, and that given her recent period of illness and that she had not met the week 2 and 3 objectives it would be unfair to re-start the process from week 5. The plan was to modify the process to give the claimant more time to achieve her objectives. A revised timetable was put in place (see pp.954-956).

[120]Week 4, 5 and 6 SMART objective progress sheets were completed (pp.977-1012).

[121]The week 7 capability review meeting took place on 14 August 2015. Ms Brown, Ms Cormie and MS Elson, a HR advisor attended the review meeting, whilst the claimant was supported by a colleague, Sister Chidi. In this meeting, week 7 progress was discussed (pp.1019-1034).

[122]Following discussion of progress and a number of concerns raised by the claimant, it was decided that that the claimant would proceed to stage 2 of the modified capability procedure. The reason for this was due to insufficient progress against the SMART objectives. This was communicated in the meeting of 14 August 2015, and recorded in a letter dated 17 August 2015, which provides a summary of the discussion (see pp.1016-1017). The decision to progress to stage 2 was explained:

[123]The final capability hearing took place on 19 October 2015, chaired by Ms Stephanie Morris. Having considered both the staff side’s case and the management case, the Panel decided to extend the capability process for another 3 months. This was due to the switch from the old capability policy to the new policy mid0way through the process. The claimant did not raise any allegations of race discrimination as part of her case (see pp.420-421).

[124]Ms Brown met with the claimant on 30 October 2015 to discuss the next steps in the process. Before meeting again with the claimant, and Ms Cain as her CSP representative, on 09 November 2015 to formally begin the 3 month Formal Capability Review Period and to clarify the objectives against which her progress would be reviewed. The discussion in the meeting of 09 November 2015 was recorded in a letter dated 18 November 2015, and sent to the claimant (pp.436-437).

[125]Following good feedback and progress during this period, the claimant met with Ms Brown on 13 January 2016, with a view to signing off on the majority of the claimant’s capability objectives. Unfortunately, this meeting was only very brief as there was an incident involving Patient 20.

[126]The claimant was suspended from work on 13 January 2016.

[127]Following the conclusion of disciplinary process, the claimant returned from work on 20 June 2016.

[128]The claimant, accompanied by Ms Cain, met with Ms Brown on 28 June 2016. It was agreed that the claimant would be given a six week time frame to revisit her competencies and complete the sign off process (see pp.513-514).

[129]On 11 August 2016, Ms Brown met with the claimant and informed her that her performance had improved to the required level and consistently maintained to a satisfactory level. The claimant was signed off as competent in respiratory physiotherapy and in On-call. This brought an end to the stage 2 capability process.

[130]Chris Gilpin was not in materially comparable circumstances to that of the claimant. Mr Gilpin has never been subjected to a development or capability management process during his employ with the respondent. ISSUE (Second Capability Process):

[131]Patient 1 was an 8 year old boy that had had a knee operation. The claimant provided outpatient treatment to Patient 1 on two separate occasions, those being 28 October 2016 and 17 November 2016.

[132]On 17 January 2017, Patient 1 was treated by one of the Advanced (Band 7) Physiotherapists working with the Outpatient Department. This was because Patient 1 arrived for treatment late due to snow fall.

[133]The Band 7 escalated concerns about the claimant’s treatment of Patient 1 to Ms Heath.

[134]Ms Heath concluded that the claimant had ignored all of the postoperative instructions that was recorded by the consultant surgeons in her treatments of 28 October 2016 and 17 November 2016 (see pp.1201- 1212). The claimant accepted that she had made a mistake with the treatment of Patient 1.

[135]Ms Heath concluded that this safety incident called into question the claimant’s clinical reasoning and standard of performance. And that this triggered the requirement for a review under the informal stage of the respondent’s capability policy. It was explained that Ms Brown would oversee any support needs of the claimant. This was all explained to the claimant in a meeting of 13 January 2017 (see pp.1198 and 1199). And this was confirmed by letter dated 18 January 2017 (see p.1196).

[136]Ms Brown was appointed to take line management lead on the capability process.

[137]Ms Brown met with the claimant on 25 January 2017. This was the first informal meeting under the capability process. Ms Brown, Ms Terry and the claimant attended at this meeting. A number of matters were discussed in this meeting. Including the identifying of learning needs, exploring if there were ay underlying causes for the capability issues, and to set SMART objectives. Discussion also took place as to why the claimant had been placed into the capability process. This included discussing the incident that was identified on 13 January 2017, and a further two incidents (patient A38365 and patient C09618). It was further discussed that Ms Teasdale and Ms Hellis had made a decision that the claimant should not participate in weekend or late shift working on the rota, but that this decision would be reviewed towards the end of the six week development period (for the letter recording the details of this meeting see pp.556-562).

[138]The claimant met with both Ms Brown and Ms Terry on 01 February 2017. In this meeting the new performance SMART objectives were agreed, which covered a six week period (these are at pp.1328-1339). The claimant’s 6 week learning timetable is at pp.1363-1364.

[139]As part of this process, it was agreed that the claimant’s progress would be considered through completing of learning logs, case reflections and through discussions of patient sessions between the claimant and her supervisor.

[140]Between 08 February 2017 and 22 February 2017, there were three clinical incidents reported by Ms Clubley, as supervisor, which involved the claimant.

[141]Clinical incident 1 was discussed with the claimant initially with Ms Clubley immediately after the event, and then at a progress meeting that took place on 15 February 2017, in the presence of Ms Brown, Ms Clubley and Ms Cain (as the claimant’s CSP representative). In this incident it was reported that the claimant had failed to identify in the patient’s postoperative notes that there was a discrepancy in the weight-baring status of the patient. The claimant did not challenge the accuracy of this note (see patient treatment record at p.1416, which is signed as accurate by both Ms Clubley and the claimant).

[142]Clinical incident 2 was discussed with the claimant immediately after the event, and then at a progress meeting that took place on 15 February 2017, in the presence of Ms Brown, Ms Clubley and Ms Cain (as the claimant’s CSP representative). In this incident the claimant had failed to recognise that a patient was showing signs of becoming unwell during treatment, and therefore failed to modify the treatment accordingly. This led to Ms Clubley intervening in the treatment. The claimant did not challenge the accuracy of this note (see patient treatment record at p.1421, which is signed as accurate by both Ms Clubley and the claimant).

[143]Clinical incident 3. This matter was discussed with the claimant following the conclusion of the treatment of the patient. In this incident, the claimant’s supervisor, Ms Clubley, flagged concerns about the claimant’s decision to continue with mobilising the patient without further investigation, despite what was described as unusual and worsening upper limb pins and needles. This led to Ms Clubley having to intervene to top the transfer assessment (see p1431-1432). The claimant did not challenge the accuracy of this record with Ms Clubley in crossexamination, nor with Ms Brown.

[144]Ms Brown held a review meeting with the claimant on 22 February 2017. And following discussion with HR, Ms Brown decided that the claimant’s case would progress to the first formal stage of capability management. This decision was made based on the three clinical incidents recorded above. This is all recorded in the letter dated 10 May 2017 (see p.563).

[145]The claimant was absent from work between 23 February 2017 until 08 May 2017.

[146]The claimant met with Ms Brown on 09 May 2017, with Ms Terry and Ms Clubley also in attendance. Notes of that meeting are at pp.1448- 1449. The purpose of the meeting was to:

[147]The first formal meeting under the capability policy took place between the claimant, with Ms Bridges accompanying the claimant as her CSP representative, Ms Terry, Ms Clubley and Ms Brown on 17 May 2017. During this meeting the three clinical incidents that led to the escalation to the formal part of the capability process were discussed. Discussion of the SMART objectives, the setting of a 6 week review period, arrangements for reviewing progress and the claimant’s health also took place (see pp.564-567).

[148]Following further clinical incidents (clinical incident 5, which was discussed with the claimant in the first formal progress review meeting on 24 May 2017 (see.1481-1493) and clinical incidents 6 and 7, which were discussed with the claimant in the second formal progress review meeting on 31 May 2017, Ms Brown escalated the matter to Ms Hellis. Following advice from HR, it was decided that the claimant’s case would progress to the second formal stage of the capability procedures. This is documented in the letter dated 01 June 2017. The reason for this was that:

[149]The initial second formal capability meeting took place on 07 June 2017. Ms Brown was accompanied by Ms Barnes, of HR, and the claimant was accompanied by Mr Bridges, her CSP representative. It was explained in that meeting that the second formal review period would be shortened to two weeks given the level of clinical risk associated with the three incidents discussed in the first formal stage. It was further advised that any further clinical incidents that raise a safety concern within that two week period would trigger a final review. Whereas, if there were improvements in the claimant’s performance during the 2 week formal period, then there was scope to extend the period to enable the claimant to complete her objectives. The main areas of key concern that needed to be addressed by the claimant were discussed and recorded. The option of redeployment was also explored with the claimant (this was all recorded in a letter dated 07 June 2017, see pp.572-575).

[150]On 16 June 2017, the claimant met with Ms Brown and Ms Clubley to review progress during the first week of the second formal capability stage. The claimant was not accompanied by a union representative at this meeting, despite having had the opportunity to be accompanied. Notes of this meeting are at pp.1557-1562.

[151]During this meeting, 4 patient matters, one of which was considered a safety concern, had been identified and were discussed:a. The first concerned a spinal patient (ACDF patient) on ward 218. Where concerns were raised by Ms Clubley that the claimant had failed to adequately control the treatment situation, and to pick up on and react to patient cues (Patient Treatment Record is at pp.1564-1565). This was considered a safety issue by Ms Brown

b. An Orif Clcaneus potential discharge patient seen on ward 218 with Ms Clubley. Where communication with patients were discussed.

c. A total knee replacement patient seen with Ms Rachel Sutton. The discussion concerned patient progression, treatment and to escalate matters where necessary.

d. A spinal patient that the claimant had seen with Ms Clubley on 09 June 2017, where following mobilising the patient, the claimant reauscultated the patient at different points to her initial auscultation.

[152]Ms Brown decided that she would need to discuss with Ms Barnes the next steps to take, given the safety incident with the ACDF patient.

[153]A final second stage capability review meeting took place on 23 June 2017. Ms Brown, Ms Barnes, Ms Heathcote (as minute taker), the claimant and both CSP representatives, Ms Cain and Mr Bridges were in attendance. A letter summarising the discussion of that meeting was sent to the claimant on 29 June 2017 (see pp.1597-1598), with the notes of that meeting at pp.1599-1605. Five clinical incidents of risk to patients were discussed in this meeting:a. The first incident of concern was that already discussed at the meeting of 16 June 2017, that being the ACDF patient, noted above.

b. The second incident of concern had also already been discussed at the meeting of 16 June 2017. This was the total knee replacement patient seen with Ms Rachel Sutton.

c. A second total knee replacement patient was discussed. This patient was seen with Ms Clubley on 20 June 2017. It was recorded that the claimant had wanted the patient to undertake various exercises, including encouraging the patient to bend their knee. Ms Clubley intervened in the treatment as she considered the treatment inappropriate as the patient’s knee had been bleeding and she did not want to open the wound which would increase the risk of infection. We accept Ms Clubley’s evidence on this, given its consistency with the documents at pp.1607-1610, which includes a summary email to Ms Brown and the Patient Treatment Record, both of which were recorded at the time of the incident.

d. A Tibial Plateau ORIF with fibular fracture, who the claimant treated with Ms Terry on 22 June 2017. During treatment, Ms Terry became concerned that the patient was becoming faint and that the claimant had missed visual cues of this. This included the patient leaning onto a frame with his forearms and going pale. Ms Terry intervened in this treatment. Ms Terry recorded an accurate note in relation to this matter (see reflection and feedback note completed by MS Terry on 22 June 2017, p.1614).

e. On 20 June 2017, a patient who was identified as Enhanced Recovery, where it was recorded that the claimant had failed to identify necessary missing information. Ms Terry’s produced a reflection of this event following the event (see.pp.1616-1617). In relation to one particular patient, the claimant communicated to Ms Terry that the patient was not for enhanced recovery. On investigation, Ms Terry realised that the post-operation record, where enhanced recovery would be recorded, had not been completed (p.1619). On considering the patient notes, it was clear to Ms Terry that the claimant had not investigated further, and that she had not considered the typed orthopaedic note which stated: The claimant had not read all of the information regarding the operation procedure before reaching her conclusion.

[154]On the basis of the further unsafe clinical incidents, and as the claimant had not demonstrated significant improvement in her practice against the objectives that were set, Ms Brown explained that the decision had been made that the claimant would be referred to the final review panel. This decision was made by Ms Brown, and was the final decision that Ms Brown made in relation to the claimant’s capability process.

[155]Ms Brown explained to the claimant that dismissal was a potential outcome of the panel, and that she was suspended from clinical duties, which was partly at the request of the claimant. AND

[156]The final panel hearing was arrange to take place on 03 August 2017. This comprised of Ms Meers (chair), and Ms Travis-Kay. It is they that had the responsibility of considering the evidence in the hearing and to make a decision as to what, if any, action was to be taken with respect the claimant.

[157]In preparation for the final panel, Ms Brown prepared a detailed report, which had a number of appendices appended to it. This was completed on 26 June 2017 (pp.1125-1636).

[158]The claimant produced a staff side case dated 27 July 2017 (see pp.1637-1644).

[159]The final panel hearing took place on 03 August 2017. Notes of this hearing were found at pp.1718-1766. During the hearing:a. Ms Brown presented the capability report that she had produced;

b. The panel then asked questions of Ms Brown;

c. Mrs Cain, on behalf of the claimant, presented the staff side case;

d. The claimant specifically addressed two of the incidents referred to in the report;

e. Ms Brown questioned the claimant;

f. Ms Brown made a closing statement;

g. Both Ms Cain and the claimant made a closing statement.

[160]The panel considered alternatives to dismissal, in particular whether the claimant could be moved to a static band 5 role. However, this was considered not possible given the clinical issues raised about the claimant’s practice.

[161]Having considered the case put forward by both sides, the panel determined that the claimant should be dismissed on the ground of capability with immediate effect. The claimant was informed this in the meeting (see pp.1765-1766), with the decision further communicated to the claimant by letter dated 03 August 2017 (pp.1709-1711). The precise reasoning that the panel had in mind when reaching the decision to dismiss is expressed in the letter as:

[162]The claimant appealed the decision to dismiss her on 23 August 2017 (see p. 607-608). The claimant appealed on the following grounds:

[163]The appeal hearing took place on 09 October 2017, with Ms Inwood chairing the hearing, and with Ms Eptlett also on the panel. The claimant attended the hearing, with her representative, Mr Fahie (notes of the meeting are at pp.1937-1956).

[164]The claimant’s appeal was dismissed. The reasons for this decision are contained in the letter dated 18 October 2017, at pp.634-641.

[165]The comparator put forward by the claimant, referred to X during the hearing, had not been the subject of any clinical performance issues.

[166]The claimant treated the patient, LB, on 19 May 2015.

[167]As part of the patient treatment, the claimant records the patients blood pressure. However, there is no indication as to whether this reading was taken from the claimant or from the nurses chart. There was only one blood pressure reading recorded during the claimant’s treatment of the patient (see copy of claimant’s notes on treatment of LB at p.862).

[168]Ms Cormie recorded her concerns of the claimant’s treatment of patient LB, which included certain detail being missed (see p.848).

[169]A Patient Session Record was completed by Ms Cormie on 22 May 2015 (see p.847). This recorded a number of matters, including:a. That the claimant had undertaken basic observations and identified that blood pressure was down, but had not noted whether this was out of trend;

b. Did not recheck the patient’s blood pressure during the treatment, and had not question the patient about symptoms.

[170]The above, caused Ms Cormie concern with the claimant’s treatment, as there was an entry in the patient’s medical records from Dr Ahmed concerning blood pressure issues, which would have then required blood pressure to be carefully monitored and recorded. BACKGROUND MATTER 2:

[171]The first and second of these issues have already been addressed above, at paragraphs 152(d) and 152(e).

[172]On the 22 June 2017, the claimant was treating a post-lumbar decompression statement.

[173]There was a miscommunication between the claimant and Ms Terry in terms of what treatment had been undertaken. This is clear in the discussion at the final hearing capability hearing on 03 August 2017 between Ms Brown and Ms Cain (see p.1747).

[174]This matter was not deemed to be a clinical incident, and had no bearing on the decision reached by the panel at the final capability hearing. Miscellaneous matters

[175]On 06 June 2016, the claimant presented a claim form (‘the 2016 claim’) alleging direct race discrimination by the respondent. This was brought whilst the claimant was employed by the respondent. In bringing this complaint the claimant had the benefit of legal representation. Conclusions Race Discrimination

Conclusions

[176]Through non-appointment to the band 5 role in either January or June 2014, this tribunal accepts that this could well be considered a detriment by the claimant. However, the claimant has not adduced evidence to satisfy the tribunal that there is a prima facie case that these detriments were in any way less favourable treatment because of her race.

[177]The claimant’s case on this issue, put simply, is that she was not appointed to the Band 5 roles in January or June 2014 due to her race. However, this is implausible, given that both Ms Teasdale and Ms Hellis scored the claimant of such a score that led to the claimant being appointed to an alternative role, with a view to keeping her within the trust. This temporary role was extended on numerous occasions. With Ms Hellis appointing the claimant from 01 April 2015 on a permanent contract to a band 5 role. If Ms Teasdale and/or Ms Hellis had wanted to discriminate against the claimant in the way that she brings her claim then they had the opportunity to do so through denying the claimant any employment with the respondent following interview.

[178]However, even if we are wrong on that, the tribunal, given its findings above, are satisfied that appointments made by Ms Hellis and Ms Teasdale were based on scoring of candidates undertaken at interview stage, based on answers given to objective questions. There is no evidence that race tainted this process. The explanation given by Ms Hellis and Ms Teasdale, and accepted by the tribunal, would have satisfied the burden that would have rested with the respondent, had the claimant satisfied the initial burden that rested on her.

[179]Furthermore, the later appointment of Ms Nkechinyelu Molokwu, who is black/Nigerian, and a reverse comparator to the claimant, to a temporary Band 5 Physiotherapist role (which was made permanent on 01 January 2016), following the same process that the claimant had gone through, further supports our conclusion on these issues.

[180]Turning to the two week placement of the claimant in Critical Care. The claimant has adduced no evidence to satisfy the tribunal that she perceived this treatment to be a detriment at the time. To the contrary, the claimant appeared content, based on the contemporaneous documents, to be given the opportunity to rotate into Critical Care. Not only did she appear content, she indicated a willingness to be considered for such placements. Further, there is no evidence brought forward of the claimant bringing complaint about this placement.

[181]The reason behind this rotation is clearly due to the learning and development needs of the claimant. It was identified by the claimant that she would benefit from a rotation to an acute medical ward. And this is what led to this rotation being facilitated. The rotation was because of development need and not because of or related to the claimant’s race as alleged.

[182]Further, the comparators referred to, namely Simon Davies, Pip Oram, Liam Buckley and Ashley Bridges, are not suitable comparators as there is no evidence to suggest that they had the same learning and development needs as that of the claimant. Simply being of a different race and not being required to undertake a rotation on critical care does not make these individuals suitable comparators.

[183]In respect of the issue relating to not being given a choice between a 3 year and a 5 year tier 2 visa, we make relatively short conclusions. There is no evidence adduced by the claimant that Ms Mukherjee treated the claimant differently to anybody else, nor that she would in the future, had Ms Mukherjee remained employed by the respondent. Indeed, the claimant was treated exactly the same by Ms Mukherjee as her named comparator, Ms Khoo, and all other visa applications which were completed by Ms Mukherjee. Further, the claimant was, albeit at a later date, given a 5 year tier 2 visa. In these circumstances, the claimant has not satisfied the initial burden that rests on her. There is simply no evidence form which this tribunal can conclude that the claimant has been subjected to less favourable treatment because of her race.

[184]Given our findings of fact above, the claimant has failed to establish that she has been treated to a detriment in respect of her request for patient notes. All of the notes that she requested, she was given access to, save for one set of patient notes due to the timing of the request, which was only a day before the final panel was due to meet. This is against all other requests being positively responded to. Ms Brown did request that the claimant stop accessing patient clinical notes directly, due to being under clinical suspension. However, as part of this, explained that this was due to the respondent’s Information Governance Policy, and that there was a process that she needed to follow. It would be unreasonable for this tribunal to consider either the response to the late request for a set of patient notes or the approach from Ms Brown to be a detriment for the purposes of a race discrimination claim. Where the claimant followed the appropriate procedure and the request was able to be met, the respondent gave the claimant access to relevant patient notes. Furthermore, the claimant has adduced no evidence that would go anyway to establishing a causative link between any such allegations and her race.

[185]Also based on our findings above, the tribunal is satisfied that the claimant was subjected to a performance management process between 17 April 2015 and October/November 2016 due to unsafe practices that were identified. This triggered the initial process, but further clinical incidents and lack of progress towards learning objectives triggered the need for the process to progress through its various stages. The claimant adduces no evidence that satisfies the initial burden that rests on her, with there being no evidence presented to support that this process was in any way influenced by her race.

[186]Similar to those conclusions made in relation to the first capability process, the claimant’s second performance management process was initiated and was progressed through the relevant stages due to unsafe practices of the claimant being identified. Likewise, the claimant adduces no evidence that satisfies the initial burden that rests on her, with there being no evidence presented to support that this process was in any way influenced by her race. There are a series of incidents that take place during this period. These matters were all discussed, and, in the decision of this tribunal, were the reasons why the capability process was escalated as it was. These decisions were made for reasons that were nothing to do with the claimant’s race.

[187]In terms of the dismissal of the claimant on 03 August 2017 being an act of discrimination, the claimant adduced no evidence to suggest that the decision by the panel to dismiss her was in any way related to her race, nor that the decision-makers had any knowledge that they were making their decision on information tainted by allegations of race discrimination. In reaching the decision to dismiss the claimant, the panel chaired by Meers, reached their decision to dismiss the claimant based on the evidence of clinical incidents and based on the information that came out of the discussions at that panel meeting. There is simply no evidence brought by the claimant that would support any other conclusion.

[188]Moving on to the allegation that Ms Cormie wrote an allegedly false allegation in a typed letter dated 29 June 2015. The tribunal was satisfied that the report produced by Ms Cormie was both accurate based on her observations, and was an objective appraisal of the claimant. There may well be a disagreement between the claimant and Ms Cormie as to what was required with this patient; however, the letter itself does not record that the claimant had not checked blood pressure before standing the patient up, as alleged in the agreed issue, but that the claimant had failed to provide sufficient information in terms of when the blood pressure reading was taken nor did the claimant re-check the patient’s blood pressure throughout treatment of that patient, especially given the patient’s medical records. And in our findings, both of these statements are accurate. The claimant has not been subjected to a detriment in these circumstances. And further, there is nothing to support that any such report was in any way written in some part due to the claimant’s race. Had that been the case then Ms Cormie is unlikely to have recorded some positive aspects of the claimant’s treatment.

[189]In relation to the allegations of false reports produced by Ms Terry. Based on our findings of fact above, the claimant has not adduced any evidence to establish either a detriment, nor that any such treatment could be considered to be less favourable treatment or unwanted conduct related to her race. The reports, we found were accurate, and were based on observations made by Ms Terry at the time.

[190]For the avoidance of any doubt, we conclude that the claimant has not satisfied the initial burden that rests on her in respect of any of the allegations of race discrimination, and so all of those allegations fail. But further, that in all of the situations, had the claimant satisfied the initial burden, the respondent had adduced evidence to support that such treatment was for reasons unconnected to the claimant’s race. Unfair Dismissal

[191]Turning to the unfair dismissal complaint. It is clear, based on the evidence that we have seen in this case that the reason for the claimant’s dismissal was for the potentially fair reason of capability. The dismissing panel clearly had this in mind at the point of deciding to dismiss the claimant.

[192]In reaching the decision to dismiss the claimant, the respondent had undertaken a thorough investigation process. This involved going through a number of different stages of the respondent’s capability process. Each clinical incident identified, led to a discussion between the claimant and the supervisor in question. Before, being considered in review meetings (as per our findings of fact). At each stage the claimant was warned of the need to improve. The claimant had ample opportunity to discuss incidents within these meetings. And Ms Brown, in particular, listened to both the views of the relevant supervisor and the claimant, before reaching her conclusions. We have already found that the reports relied upon were accurate reports, and that it was on the basis of these identified clinical incidents that led to the claimant going through the capability process.

[193]In advance of the final panel hearing on 03 August 2017, both Ms Brown, on behalf of management, and the claimant put together a file outlining their case, and attaching all the necessary evidence. These were put before final panel chaired by Ms Meers. Ms Brown’s report is at pp.1125-1174 of the bundle, with 73 appendices attached (pp.117501636). The claimant’s response is at pp.1637-1644, and has 14 appendices attached (pp.1645-1703).

[194]It is this tribunal’s decision that the panel’s decision to dismiss the claimant for capability reasons, based on all of the evidence it had before it, collected through a series of thorough investigations and meetings with the claimant, and the recording of incidents in reports from the claimant’s supervisors that we found to be accurate reports, is a decision that falls within the band of reasonable responses. We are also satisfied that the panel did consider alternatives to dismissal, which is what we would expect a reasonable employer to do.

[195]Further, there does not appear to be any failings in respect of the appeal process that would have rendered the overall process to be unfair either.

[196]In these circumstances, the dismissal was a fair dismissal and the claimant’s claim for unfair dismissal is dismissed. Jurisdiction: time

[197]Given that we have concluded that none of the matters above were acts of discrimination, then the question as to whether the discrimination claim or parts of it were out of time does fall away. However, we consider it prudent to comment on this in any event.

[198]In terms of the allegations themselves, they have been pleaded as isolated events, which would mean, given the date of presentation of the claim form and the dates of ACAS early conciliation, that any act that took place before 26 July 2017 would fall outside of the primary time limit.

[199]The claimant’s case did change to a degree during proceedings, with the claimant trying to introduce that the allegations were part of a continuing act, with Ms Brown being the instigator of all of the matters complained of. And that all of the allegations were part of Ms Brown’s plan to discriminate against her and have her dismissed from the respondent. However, that makes little sense in the overall context of the case. This would require this tribunal to find that the initial appointment, extension of contracts and elevation to a Band 5 permanent role were all with a view to dismissing her later for reasons connected to her race. It would require this tribunal to conclude that there was a conspiracy, with Ms Brown orchestrating the falsifying of documents, of which the claimant brought no evidence and which was not put to the respondent’s witnesses under cross examination. It would require the tribunal to conclude that she was deemed to be competent during the first capability process with a view to putting her through a second such process, at which point the claimant would be dismissed. In short, such is extremely implausible.

[200]The majority of the allegations, it is clear as to when the treatment complained of took place. However, this needed further exploration with respect the second capability process. The claimant explained in her evidence that her allegation of discrimination with respect the second capability process concerned the decisions of Ms Brown to first put her into the process, and secondly to escalate her through the process. The last decision in this respect made by Ms Brown was at the final second stage capability review meeting on 23 June 2017. This must be the final date that forms part of this specific allegation, especially given that the decision to dismiss is pleaded separately, and Ms Brown had no decisionmaking responsibility at that stage.

[201]This means all acts, taking account of the dates on which the acts took place, aside from the allegation relating to access to patient notes and the allegation that the decision to dismiss her was an act of discrimination, are outside of the primary time limit and would require an extension of time, which would be on a just and equitable basis. The burden of which rests on the claimant. The claimant has put forward no evidence as to why it would be just and equitable to extend time to give the tribunal to determine these matters, nor were any submissions made in this respect by Mr Lewis-Bale (and rightly so given the lack of evidence provided by the claimant).

[202]So even if we were wrong in relation to our conclusions that the allegations brought were not acts of discrimination, those matters outside of the primary time limit would have been dismissed for being brought out of time in any event.

[203]The abuse of process issue as per the rule in Henderson v Henderson is not a matter that this tribunal needs to address, given our findings above, in respect of both the substantive claims and the alternative position in relation to time limit/jurisdiction.