Dr M Weaver v Black Country Healthcare NHS Foundation Trust: 1307891/2023

EMPLOYMENT TRIBUNALS

Case No 1307891/2023

Between

Dr M WeaverClaimant

Black Country Healthcare NHS Foundation TrustRespondent

Before

Employment Judge Flood

Date 10 December 2025

JUDGMENT

[1]The complaints against the Respondent for direct race and/or age discrimination and harassment related to race and/or age contrary to ss 13 and 26 of the Equality Act 2010 (“EqA”)) as set out at paragraphs 2.2.6; 2.2.27; 3.2.6; 4.1.4 and 5.6.5 of the List of Issues set out below were dismissed upon withdrawal.

[2]The remaining complaints against the Respondent of unlawful detriment on the grounds of having made a protected disclosure (contrary to s 47B of the Employment Rights Act 1996 (“ERA”)); direct race discrimination, direct age discrimination, race related harassment, age related harassment and victimisation (contrary to ss 13, 26 and 27 of the EqA are not well founded and are dismissed. CORRECTED REASONS The Complaints and preliminary matters

[1]The Claimant presented his claim form with appended grounds of claim (pages 2-39, Pleadings and Orders Bundle) on 13 November 2023, having completed early conciliation between 29 September and 27 October 2023. The respondent defended the claim and its ET3 and grounds of resistance were shown at pages 42-91, Pleadings and Orders Bundle.

[2]There was a preliminary hearing in private for case management before Employment Judge Knowles on 7 June 2024 (‘1st PH’) where particulars of the complaints the Claimant wished to bring were discussed. Employment Judge Knowles confirmed that (by consent) the claimant’s claim and the respondent’s response were amended as set out in the amended grounds of claim (pages 93-119, Pleadings and Orders Bundle) and amended grounds of resistance (pages 120-165, Pleadings and Orders Bundle). An agreed list of issues had been submitted in advance of this hearing and was updated during the hearing to include the additional issues as a result of the amended claim. The matter was listed for final hearing with a time estimate of 20 days for June 2025.

[3]The matter came before Employment Judge Kight for a further preliminary hearing in private on 14 January 2025 (‘2nd PH’). At the 2nd PH Employment Judge Kight refused the Claimant’s application to amend his claim as set out in his e mail to the Tribunal of 14 October 2024. The matter came before Employment Judge Beck for a further preliminary hearing in private on 4 March 2025 (‘3rd PH’) which had been listed to deal with applications by the claimant for specific disclosure and issues raised by the Respondent around the claimant’s disclosure. It had also been listed to address issues arising from a “rule 50 application for redaction/anonymity”. Due to a national IT problem on that day causing a delay to the start of the hearing, it was not possible to deal with this. The application made by the Respondent for an anonymity order was dealt with by Employment Judge Camp on the papers, and by an order sent to the parties on 10 April 2025 this was refused.

[4]The matter came before Employment Judge McCluggage for further case management on 29 April 2025 (‘4th PH’). An order for specific disclosure was made in respect of the Respondent. In addition the Respondent’s application to redact names and identifying details of whistleblowers who wished to remain anonymous was granted. Employment Judge McCluggage prepared a summary of the matters complained of without naming any whistleblower or including identifying detail which is set out at pages 229-230, Pleadings and Orders Bundle. The listing was reduced to 19 days and some timetabling was done.

[5]The final list of issues agreed between the parties (‘List of Issues’) was at pages 200-210 and is set out below. This was referred to extensively during the hearing. On day 11 of the hearing, Ms Brooks confirmed that the claimant was withdrawing the allegations (brought in the alternative) of direct race/age discrimination and race/age related harassment as set out at paragraphs 2.2.27 and 4.1.4 of the List of Issues. Those complaints were accordingly dismissed upon such withdrawal.

[6]An agreed bundle of documents (‘Main Bundle’) was produced for the hearing and where page numbers are referred to below, these are references to page numbers in the Main Bundle, unless otherwise specified. In addition to the Main Bundle, we had before us an additional bundle (‘Supplemental Bundle’ referred to as ‘SB’ as prefix when page numbers in that bundle are referenced) prepared by the claimant and a further bundle submitted by the respondent containing the various pleadings and orders of the Tribunal in the claim (‘Pleadings and Orders Bundle’). On day 3 of the hearing, the respondent submitted an agreed chronology, cast list, list of acronyms and reading list. At various points during the hearing additional relevant disclosure documents were produced by both parties as follows (no objection was made to any of the additional document by the opposing party):6.1 On day 2 the claimant provided a more complete copy of the document which was shown at pages 1796 onwards of the Main Bundle. The additional pages were added as pages number 179 a, b and c and added to the Main Bundle.

6.2 On day 2 the claimant provided additional pages numbered 669-675 of the Supplemental Bundle.

6.3 On day 2, the claimant provided an accessible version of the video recording of a Teams meeting of R’s Delivery Board which took place on 19 July 2023. The Tribunal was directed to view this from a point 1 hour 42 minutes into the recording until the end, which it did in chambers at the end of a sitting day.

6.4 On day 6, the claimant provided a number of pdf documents pertaining to matters that had arisen in evidence namely a full copy of the claimant’s appraisal document, a copy of R’s grievance policy, copies of three papers produced by various organisations entitled ‘Racism remains embedded om MHS organisational culture’; ‘Beyond the snowy white peaks’ and ‘A fair experience for all NHSE’.

6.5 On day 9, the claimant provided a copy of R’s Dignity at Work Policy version 1.2 updated to 22 June 2022. This is a different version to the Dignity at Work policy in the Main Bundle at pages 2180 onwards which was version 1.0 updated to 17 May 2021. The claimant also provided a copy of a letter from his solicitors at the time, Weightmans, to the respondent’s solicitors dated 1 February 2024; a copy of an Occupational Health (‘OH’) report dated 13 February 2024; a copy of letter from Weightmans to Dr Dalton dated 3 June 2024 and a further OH report dated 28 June 2024.

6.6 On day 10, the claimant provided a further copy of the claimant’s 2018- 19 appraisal document including comments from his line manager.

6.7 On day 11, the respondent provided a copy of the transcript of the meeting held by its Local Decision-Making Group Panel (‘LDMG’) on 18 October 2023.

6.8 On day 11, the claimant provided four additional pdf documents: a copy of an e mail and attached letter from the claimant to Mr Vanes dated 1 September 2023; a copy of a document headed ‘Enforcement Undertakings’ addressed to the respondent from NHSE dated 30 January 2025; an extract from the gov.uk website entitled ‘Whistleblowing for employees’; and a document headed ‘A practical guide for responding to concerns about medical practice’ provided to those in an RO role as at March 2019.

[7]The respondent undertook to prepare an updated Supplemental Bundle index and copies of suitably paginated additional documents which was submitted before the Tribunal started its deliberations. The Supplemental Bundle ran to 1030 pages once all additional documents had been included.

[8]There was another bundle which contained the witness statements. The witnesses this tribunal heard from in person are set out below. The Tribunal has used the initials of various individuals as they are defined above or in the findings of fact below and replicated this in the List of Issues set out below.

[9]The final hearing commenced on Monday 2 June 2025 with no parties in attendance to enable the Tribunal to do pre reading. The parties attended at 2pm on Tuesday 3 June for preliminary matters to be dealt with and the Tribunal then carried on with its reading. The evidence commenced on day 3 (Wednesday 4 June) with a further reading day without the parties taking place on day 5 (Friday 6 June) given the lengthy witness statements and extensive documents referred to.

[10]During the hearing a number of matters arose that are worthy of comment. On day 7 (Tuesday 10 June) an issue arose during the cross examination by Ms Brooks of the first of the respondent’s witnesses. Mr Sutton objected to the line of questioning that was about to commence in relation to what took place at the respondent’s Delivery Board meeting on meeting on 19 July 2023 on the basis that (as raised on day 1 of the hearing in the preliminary matters discussion), the events that took place at that meeting are the subject of an ongoing internal investigation process and the Tribunal should not be straying into what occurred at the meeting. It was pointed out that the events of this meeting do not form the basis for any of the allegations of discrimination, victimisation or detriment that are before this Tribunal. Rather it is the way the respondent responded to the complaints that arose after this meeting that is the subject matter of the complaints. Ms Brooks submitted that she felt that the question as to whether the response to what happened at this meeting is appropriate cannot be looked into, unless the Tribunal also examined what happened in the meeting itself.

[11]The Tribunal expressed its concern that this issue has arisen at this stage of the hearing. The recording of the meeting and transcript was adduced by the claimant and not objected to by the respondent. The Tribunal had already informed the parties that it had viewed the video recording and the transcript this had been referred to in evidence. We understand no specific objection has been raised to date.

[12]The Tribunal was concerned that the questions did not stray into areas that are not for it to determine and therefore not relevant and expressed the view that it no desire to make findings of fact that are not within its remit and validly fall elsewhere. However it is important in cases of discrimination and whistleblowing that the Tribunal is permitted to hear evidence of background matters that the parties say are relevant to the rationale for decision making. This may be relevant to the issue of whether inferences can be drawn from primary facts. There is no specific reason or legal principle that requires a Tribunal not to consider matters that form the basis of an internal enquiry if this is necessary and relevant to the questions it had to determine, and this is the key. We understand the points made about embarking on the slippery slope of allowing questions. Our decision communicated to the parties orally was that some limited and specific questions could be asked by Ms Brooks on behalf of the claimant in relation to the documents and recording we have before us already in evidence. There were two caveats and those were that before each question, we needed to understand from Ms Brooks which numbered provision of the List of Issues her question pertained. Secondly, we had to be told to how the question and any answer will assist the Tribunal in determining the issues of fact and law it must decide. We acknowledged that a list of issues should not be adhered to slavishly at the expense of the core claim itself, but this List of Issues had been in place for very many months, both parties have been professionally represented throughout the proceedings and no objection has been raised as far as we are aware to the framing of the List of Issues.

[13]The Tribunal also explained that it needed to consider proportionality and timing, and we needed to be clear that the questions being posed are in fact addressed to the correct witness. As we understood it, the questions related to the decision communicated to the claimant on 2 August 2023 at page 1548 that the Trust was going to commission an investigation under its FTSU policy having received concerns following the delivery board meeting both at the meeting and more generally. If a particular witness had no involvement in or influence over that particular decision, they may be unable shed any light about whether that decision was one which was lawful. The Tribunal reassured the parties that the extent to which evidence we heard is relevant was a matter for the Tribunal and if we believed it did not assist us in determining the issues, we would not make reference or rely on it.

[14]The claimant’s evidence was completed by the end of day 6. Mr Sutton informed the Tribunal that he did not have any cross examination questions for the remainder of the claimant’s witnesses and would not take any point in submissions about the strength of evidence and the weight to be placed on it, if such witnesses were not called by Ms Brooks to give their evidence on oath/under affirmation. On that basis no further witnesses for the claimant attended but their witness statements were taken in evidence by the Tribunal as if they had been sworn.

[15]On the morning of day 8 (Thursday 11 June), the Tribunal was informed that Ms Brooks had become unwell overnight and was unable to attend that day. The parties attended (the claimant in person) and the hearing was adjourned by agreement until the following day. On the morning of day 9, Ms Brooks handed up a list of the 10 questions she wished to ask Ms Williams pertaining to the Delivery Board meeting on 19 July 2023. Mr Sutton questioned the relevance of these questions, and objected to questions which asked the witness to comment on what she saw or heard at the meeting as the relevance of this meeting to the issues before this Tribunal was that complaints had been received by the respondent after this meeting, some of which referenced in part what occurred at the meeting. The Tribunal was content for Ms Brooks to ask questions numbered 1 to 5 and 8, but not (at least in their current form) questions 6, 7, 9 and 10. These four questions asked the witness to comment on events at the meeting itself rather than the response to complaints referencing the meeting. A more tailored question as to how much the witness was influenced by what occurred at the meeting itself when deciding how complaints should be responded to was asked and answered by the witness.

[16]On day 11 (Monday 16 June) Mr Palmer was unable to attend the hearing as he had become unwell the day previously. The Tribunal informed the parties that he hoped to be well enough to attend the following day. In addition on that morning, the claimant had made a written application to amend his claim to add two additional allegations of detriment, namely:(i) that MF colluded with others to secure complaints against the claimant such as to enable her to commence a FTSU investigation against the Claimant in August 2023.

(ii) that MF colluded with others to secure the submission of complaints to NHSE such as to achieve the removal of the claimant from his roles as RO and CMO in November 2023. The Tribunal was unable to deal with this matter in Mr Palmer’s absence so informed the parties that this application would be heard together with any objections at the start of the next day of sitting. It was suggested that the respondent may wish to provide a written response in advance. That response was provided on the morning of day 12 with the amendment strongly objected to largely on the basis that it was effectively a repeat of an amendment application refused by Employment Judge Kight in January this year (see above). The response intimated that the respondent may seek an order for costs in relation to the application. Upon asking the claimant whether the application was still pursued, and allowing some time to consider the claimant confirmed that the application to amend was being withdrawn.

[17]On day 13 (Wednesday 18 June 2025) during the cross examination of GD, GD initially became upset, and a short break was taken. Just before lunch, Ms Brooks became upset during the course of her cross examination of GD and had to leave the Tribunal which led to an abrupt adjournment of the hearing. After a short break, the claimant and Mr Sutton attended before the Tribunal and the claimant asked for the hearing to be adjourned for the day to enable Ms Brooks to recover as she was feeling unwell and unable to continue that day. Mr Sutton agreed with the proposal and asked that MF be discharged from her oath today (as she was unable to attend the following day). It was suggested that no further evidence would take place that day and the parties would again look at scheduling of witnesses to ensure that evidence could be completed within the allotted time. A revised timetable was agreed and communicated to the Tribunal the following day and on the basis that the respondent was no longer intending to call two of its witnesses. The proposal had been that the evidence would be concluded by day 15 (Friday 20 June 2025).

[18]Following completion of the respondent’s evidence on Friday 20 June 2025, an agreed timetable was made for the provision of submissions to the Tribunal. The parties were to prepare their written submissions and simultaneously exchange these by 5pm on Monday 23 June 2025. Oral submissions would then take place on Tuesday 24 June 2025, with the Tribunal then spending the remaining three days of the listing making its decision and preparing a reserved judgment and reasons.

[19]On the morning of 23 June 2025, the Tribunal was informed that Ms Brooks had been taken unwell over the weekend and was not well enough to prepare written submissions or attend for oral submissions the following day. Ms Brooks attended her GP who advised her she was not fit to attend the hearing or do any work on the case and as such the claimant applied for the hearing to be postponed with an update to be provided the following day. The respondent confirmed that it had no objection and suggested that the matter be relisted for Thursday 26 June for oral submissions (or that written submissions only be provided in the event that Ms Brooks remained too ill to attend the Tribunal). The Tribunal ordered that the hearing be therefore postponed with an update to be provided by the following day at 4pm.

[20]The claimant updated the Tribunal as ordered on 24 June 2025 and provided medical evidence on a confidential basis which indicated that Ms Brooks was not fit to engage with the Tribunal proceedings for a period of at least a month. An application to postpone the hearing for a month was made and a suggestion that rather than oral submissions, that written submissions only be provided. The Tribunal asked the respondent for its views and informed the parties that it would meet in chambers to consider the matter on Wednesday 25 June at 10am. The respondent informed the Tribunal on the morning of 25 June 2025 that it was concerned about delay to proceedings and suggested that the matter be confined to written submissions only and that these be exchanged by 25 July 2025. The claimant was asked by the Tribunal to confirm its position on the proposal and stating initially that his preference was to provide oral submissions after an 8 week period, but then confirmed in a later e mail that the preference was to proceed on the basis of written submissions only, with 8 weeks to provide these,

[21]The Tribunal carefully considered the application for postponement made by the claimant and the representations made. It determined that it would not be in the interests of justice and the overriding objective to continue with the hearing that week to hear oral submissions. The claimant had provided medical evidence to support the application to postpone. On the basis of the information shown, the Tribunal had concerns about the claimant’s ability to participate in the hearing if it were to continue as originally listed. We accepted that a delay to these proceedings may cause prejudice, but to both parties equally.

[22]For all of these reasons, the hearing was adjourned. However the Tribunal determined that the submissions be confined to written submissions. It was not in the interests of justice or the overriding objective to require the attendance of the parties to give submissions orally, given the circumstances set out above and the difficulties involved in finding a suitable date for attendance for the Tribunal and the parties. The Tribunal was keen to carry out its deliberations promptly but determined that these should not commence until the parties have had the opportunity to provide submissions in writing. There are very many legal complaints and issues to be determined, and the Tribunal would be assisted by understanding the relative position of the parties on each of the issues in dispute (following the completion of evidence) before it started its deliberations.

[23]As submitted by the claimant, the Tribunal was content for the parties to have 8 weeks to prepare their written submissions, after which time it would meet and make its decision (to be sent to the parties as soon as practicable after this has taken place). As it was unlikely that time could be found from the list for the Tribunal to reconvene before September 2025, this 8-week timescale was unlikely to impact the timings of the ultimate decision. The Tribunal were able to find 3 days out of the list to meet to make its decision on 8, 19 and 11 September 2025.

[24]The parties provided their written submissions on 20 August 2025. Both were lengthy documents with C’s submissions running to 152 pages and R’s to 56 pages. Reading such submissions, let alone analysing these and applying these to the facts found took several hours of Tribunal deliberation time. It is not practical or proportionate to summarise such lengthy documents in this judgment and reasons but rather submissions are incorporated and have been considered fully in this judgment. Where appropriate the Tribunal has made reference to specific submissions on the matters of law and fact in dispute throughout this document. Whilst the substantive decisions on the issues of fact and law in dispute were completed during this period, the written decision and reasons had not been finalised by the Judge and took several more full days of judicial time which had to be found out of the Tribunal’s list (which has been particularly heavy) between late September and November. This was an extensive exercise given the number of disclosures relied upon, detriments claimed and the complexity of some of the factual issues upon which the Tribunal needed to determine. The Tribunal apologises for the delay in the completion of the written judgment and reasons but feels it necessary to stat that it was not assisted by the volume and length of documents prepared by the parties. The Issues

[25]The issues to be determined by the Tribunal (‘the List of Issues’) were as follows: 1. Jurisdiction1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 30 June 2023 may not have been brought in time.

1.2 Whether the complaint was presented to the Tribunal before the end of the period of three months beginning when the act complained of was done or where the conduct extends over a period of time, the last of them as required by s123(1)(a) EqA; and, if not,

1.3 Whether the Tribunal should consider the complaint on the ground that it is just and equitable in all the circumstances to do so pursuant to s123(1)(b) EqA. 2. Direct Discrimination (Race and/or Age) (s13 EqA) For these purposes the Claimant identifies as white and Asian. The Claimant’s age at the relevant time was between 60 and 62 depending on the date of the event in question. The Claimant’s relevant age group being 60 – 65 years. The relevant Age Group for comparison is those below 55.

2.1 Whether the Claimant has been treated less favourably because of Race and/or Age contrary to s13 EqA.

2.2 The alleged less favourable treatment complained of is:2.2.1 Not long listed for CEO post – October 2022

2.2.2 Delaying and/or reducing funding for the Community Transformation Program

2.2.3 The Chief Strategy Officer referred to the Community Transformation Board project as having "failed", whilst it was still in the implementation phase.

2.2.4 Failure to provide simple (paid for) estate refurbishment for a trials room for the Research and Innovation team which the Claimant led, causing loss of commercial trials and funding to support the team and the Research Strategy and demoralising the Team.

2.2.5 Refusal of repeated requests for essential administrative support

2.2.6 Undermining the Claimant’s RO role by standing down a DAW complaint against a doctor (Dr RH) without reference to him as RO.

2.2.7 Pausing the Claimant’s application for the DCEO role.

2.2.8 Raising and/or treating a complaint against the Claimant formally as a means of preventing his application for DCEO being progressed.

2.2.9 Commencing and/or considering a FTSU complaint lodged against the Claimant (rather than treating any complaint as a grievance).

2.2.10 Commencing a Maintaining High Professional Standards investigation as part of a disciplinary process against the Claimant.

2.2.11 Failing to inform the Claimant of the concerns raised by colleagues in or other detail of the concerns).

2.2.12 Failing to inform the Claimant of sufficient details of the complaints made

2.2.13 Removing or suspending the Claimant's duties as RO and CMO.

2.2.14 Escalating some complaints to external investigation under FTSU without attempting informal resolution.

2.2.15 Escalating the complaints to a MHPS investigation.

2.2.16 Failing to follow the Respondent's polices in respect of grievances.

2.2.17 Failing to follow the National guidance regarding complaints against Responsible Officers in respect of the Claimant.

2.2.18 Failing to follow the Respondent's and NHS FTSU policy.

2.2.19 Failing to attempt to resolve the issue informally, specifically but not limited to by using the NEDs to negotiate.

2.2.20 Failing to attempt to resolve the issue informally, specifically but not limited to by using the NEDs to negotiate.

2.2.21 Failing to follow National Guardian Office (NGO) Guidance on FSTU as FTSU NED Lead.

2.2.22 Appointing an individual who was not impartial to consider the Claimant's DAW complaints. The individual was the Chair's mentee, SG.

2.2.23 Appointing an individual who was not impartial to manage the complaints made against the Claimant. The individual was the Chair's mentee, SG.

2.2.24 The Chair persisting in appointing SG in relation to matters pertaining to the Claimant's employment despite the Claimant's representations that she was conflicted out and not impartial in any event.

2.2.25 The requirement that the Claimant has to report to the interim CMO, initially a cardiologist and subsequently a DCMO from another trust seconded to the interim CMO role, every week about his clinical work.

2.2.26 Failing to progress the Claimant’s DAW complaints.

2.2.27 The Respondent's CFO would shake her head in meetings in disagreement when the Claimant spoke.

2.2.28 Notifying the Claimant of “New Concerns” on 20th December 2023.

2.2.29 Setting vague, non-specific and personal Terms of Reference for the

2.3 For the purpose of determining this issue, the comparators for allegation 2.2.1 will be MF, QZ, KD and ME and for the other allegations will be GD and/or a hypothetical comparator occupying the same or a similar position to the Claimant and with similar qualifications and experience but who did not share his race and/or was not in his age group.

2.4 Whether the relevant circumstances of the comparator were materially different from those of the Claimant. 3. Victimisation (s27 of the EqA 2010)

3.1 Did the Claimant do a protected act within the meaning of s27(2) of the EqA? The Claimant relies on the following:3.1.1 15 November 2022 - the Claimant raised concerns in a meeting with Chair of the Trust, JV, AW and AG, the Senior Independent Director (SID) about the CEO selection process including that a criteria of CVs not being 'too medical' was likely to be race discrimination. The Respondent accept this is a Protected Act,

3.1.2 17 August 2023 - DAW Complaint - The Respondent accept this is a Protected Act.

3.1.3 18 September 2023 - DAW Complaint - The Respondent accept this is a Protected Act.

3.2 Did the Respondent subject the Claimant to a detriment because the Claimant had done or the Respondent believed that the Claimant had done, or may do, a protected act? (EqA 2010, s 27(1)). The alleged detriments are as follows: -3.2.1 Delaying and/or reducing funding for the Community Transformation Program;

3.2.2 In around May/June 2023 the Chief Strategy Officer referred to the Community Transformation Board project as having “failed”, whilst it was still in the implementation phase;

3.2.3 Failure to provide simple paid for estate refurbishment for a trials room for the Research and Innovation team which the Claimant leads, causing loss of commercial trails and funding to support the team and the Research Strategy and demoralising the team;

3.2.4 Refusal of requests for administrative support.

3.2.5 The CFO putting forward the recommendations in the Estates Strategy Paper in March 2023.

3.2.6 In June 2023, undermining the Claimant’s Responsible Officer (RO) role by standing down a DAW complaint against a doctor without reference to him as RO;

3.2.7 Pausing the Claimant’s application for DCEO role;

3.2.8 In or around August 2023, raising and/or treating a complaint against the Claimant formally as a means of preventing his application for DCEO being progressed;

3.2.9 FTSU complaint lodged against the Claimant, rather than treating any complaint as a grievance or attempting informal procedures first;

3.2.10 Commencing a Maintaining High Professional Standards investigation as part of a stand-alone process or a disciplinary process against the Claimant;

3.2.11 Failing to inform the Claimant of the concerns raised by colleagues in or other detail of the concerns;

3.2.12 Failing to inform the Claimant of sufficient details of the complaints made able to properly answer any issues raised;

3.2.13 Removing his duties as RO and CMO;

3.2.14 Requiring the Claimant to report to the Interim CMO on a weekly basis;

3.2.15 Refusal to provide the Claimant with information about the substance of a complaint and the names of the complainants who are the basis of the FTSU;

3.2.16 Escalation of complaints about the Claimant to external investigation under FTSU;

3.2.17 Failing to follow the National guidance regarding complaints against Responsible Officers;

3.2.18 Failing to follow the Respondent’s polices in respect of grievances;

3.2.19 Failing to follow the Respondent’s and NHS FTSU policy;

3.2.20 Failing to attempt to resolve the issue informally, specifically but not limited to by using the NEDs to negotiate;

3.2.21 Failing to follow National Guardian Office (NGO) Guidance on FSTU as FTSU NED Lead.

3.2.22 Appointing an individual who was not impartial to consider the Claimant’s DAW complaints. The individual was the Chair’s mentee, SG.

3.2.23 Appointing an individual who was not impartial to manage the complainants made against the Claimant. The individual was the Chair’s mentee, SG.

3.2.24 The Chair persisting in appointing SG in relation to matters pertaining to the Claimant’s employment despite the Claimant’s representations that she was conflicted out and not impartial in any event;

3.2.25 Failing to progress the Claimant’s DAW complaints;

3.2.26 Notifying the Claimant of “New Concerns.”

3.2.27 Setting vague, non-specific and personal Terms of Reference for the

3.3 All of the above, save for paragraph 3.2.19 were because of the first act set out at paragraph 3.1.1.

3.4 The acts set out in paragraphs 3.2.11 to 3.2.18 were because of the second act set out at paragraph 3.1.2.

3.5 The acts set out in paragraphs 3.2.22 to 3.2.25 were because of the second and third acts set out in paragraphs 3.1.2 and 3.1.3. 4. Harassment (Age/Race) (s26 EqA)

4.1 Did the Respondent:4.1.1 Chair persisting in appointing SG in relation to matters pertaining to the Claimant's employment despite the Claimant's representations that she was conflicted out and not impartial in any event.

4.1.2 that the Claimant has to report to the interim CMO, initially a cardiologist and subsequently a DCMO from another trust seconded to the interim CMO role, every week about his clinical work.

4.1.3 CFO email to say that a former MD she knew could come and assist the Trust with its out of hours cover work (which was part of the Claimant's team responsibilities)

4.1.4 CFO would shake her head in meetings in disagreement when the Claimant spoke

4.2 Was this unwanted conduct?

4.3 Was it related to the Claimant’s Race and/or Age?

4.4 Whether, having regard to all the circumstances, including the perception of the Claimant, it is reasonable for the conduct to have the effect of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. 5. Whistleblowing (s47B(1) ERA)

5.1 Whether the complaint was presented to the Tribunal before the end of the period of three months beginning when the act complained of was done or, where that act or failure is part of a series of similar acts or failures, the last of them as required by (s48(3)(a) ERA); and, if not,

5.2 Whether the Tribunal is satisfied that it was not reasonably practicable for the Claimant to present the complaint before the end of that three-month period; and, if so

5.3 Whether the complaint was presented to the Tribunal within such further period as the Tribunal considers reasonable.

5.4 Do any of the following amount to qualifying disclosures of information to the Respondent which, in the reasonable belief of the Claimant, tended to show that malpractice, wrongdoing or failure the Claimant disclosed was taking place or was likely to take place under s43B(1)(b)(d) and/or (f) ERA.5.4.1 27 April 2022- The Claimant raised the issue of procedural unfairness with the acting CEO, MF, concerning the process followed in appointing the Deputy COO.

5.4.2 31 October 2022 - The Claimant wrote to CPO, AW, expressing his concerns about not having been long listed on the basis of discrimination on the grounds of race.

5.4.3 13 November 2022 - The Claimant wrote to AW reiterating his concerns regarding the long listing process for the CEO role.

5.4.4 15 November 2022 - the Claimant raised concerns in a meeting with Chair of the Trust, JV, AW and AG, the Senior Independent Director (SID) about the CEO selection process including that a criteria of CVs not being 'too medical' was likely to be race discrimination.

5.4.5 8 January 2023 - the Claimant wrote to AW expressing his dissatisfaction with the review of the CEO process that had taken place and concerns regarding the management of the Trust.

5.4.6 16 January 2023 - the Claimant wrote to AG the Senior Independent Director of the Respondent expressing concern as to how an allegation of abuse and substandard patient care was dealt with by the Trust.

5.4.7 19 July 2023 - the Claimant emailed the CEO expressing his concern that there may be a closed culture in the Trust's governance.

5.4.8 26 July 2023 - the Claimant raised concerns at a Board meeting about the impact on very vulnerable patients of a proposal to close the Gerry Simon Clinic.

5.4.9 17 August 2023 – DAW complaint.

5.4.10 18 September 2023 – DAW complaint.

5.5 Did the Claimant have reasonable belief that his disclosures were made in the public interest and tended to show that the malpractice, wrongdoing or failure the Claimant disclosed was taking place or was likely to take place and/or had been, was being or was likely to be deliberately concealed?

5.6 Has the Claimant been subjected to any detriment by any act or deliberate failure to act by the Respondent on the ground that the Claimant had made a protected disclosure pursuant to s47B ERA 1996? Specifically, has the Claimant suffered any of the detriments below because of any of the above disclosures:5.6.1 Delaying and/or reducing funding for the Community Transformation Program;

5.6.2 In around May/June the Chief Strategy Officer referred to the Community Transformation Board project as having “failed”, whilst it was still in the implementation phase.

5.6.3 Failure to provide simple (paid for) estate refurbishment for a trials room for the Research and Innovation team which the Claimant led, causing loss of commercial trails and funding to support the team and the Research Strategy and demoralising the team;

5.6.4 Refusal of repeated requests for essential administrative support - These occurred (5.6.1 to 5.6.4) because of the first and fourth protected disclosures.

5.6.5 In June 2023, undermining the Claimant’s Responsible Officer (RO) role by standing down a DAW complaint against a doctor without reference to him as RO - This was because of the fourth protected disclosure.

5.6.6 Pausing the Claimant’s application for DCEO role - This was because of the first, fourth, seventh and eighth protected disclosures.

5.6.7 In or around August 2023, raising and/or treating a complaint against the Claimant formally as a means of preventing his application for DCEO being progressed - This was because of the first, fourth, seventh and eighth protected disclosures.

5.6.8 Commencing and/or considering a FTSU complaint lodged against the Claimant (rather than treating any complaint as a grievance); This was because of the first, fourth, seventh and eighth protected disclosures.

5.6.9 Commencing a Maintaining High Professional Standards investigation as part of a disciplinary process against the Claimant; This was because of the ninth protected disclosure.

5.6.10 Failing to inform the Claimant of the concerns raised by colleagues in or other detail of the concerns) - This was because of the first, fourth, seventh and eighth protected disclosures.

5.6.11 Failing to inform the Claimant of sufficient details of the complaints made able to properly answer any issues raised; This was because of the ninth

5.6.12 Removing or suspending the Claimant’s duties as RO and CMO; This was because of the ninth protected disclosure.

5.6.13 Refusing to provide the Claimant with information about the substance of a complaint and the names of the complainants who are the basis of the FTSU or MHPS investigation; This was because of the first, fourth, seventh and eighth protected disclosures.

5.6.14 Escalating some complaints to external investigation under FTSU without attempting informal resolution; This was because of the first, fourth, seventh and eighth protected disclosures.

5.6.15 Escalating the complaints to a MHPS investigation; This was because of the ninth protected disclosure.

5.6.16 Failing to follow the Respondent’s polices in respect of grievances; This was because of the first, fourth, seventh and eighth protected disclosures.

5.6.17 Failing to follow the National guidance regarding complaints against Responsible Officers in respect of the Claimant; This was because of the ninth protected disclosure.

5.6.18 Failing to follow the Respondent’s and NHS FTSU policy; This was because of the first, fourth, seventh and eighth protected disclosures.

5.6.19 Failing to attempt to resolve the issue informally, specifically but not limited to by using the NEDs to negotiate; This was because of the first, fourth, seventh and eighth protected disclosures.

5.6.20 Failing to follow National Guardian Office (NGO) Guidance on FSTU as FTSU NED Lead; This was because of the first, second, third, fourth, fifth and sixth protected disclosures.

5.6.21 Appointing an individual who was not impartial to consider the Claimant’s DAW complaints. The individual was the Chair’s mentee, SG This was because of the second, third, fourth and fifth protected disclosures.

5.6.22 Appointing an individual who was not impartial to manage the complainants made against the Claimant. The individual was the Chair’s mentee, SG. This was because of the second, third, fourth and fifth protected disclosures.

5.6.23 The Chair persisting in appointing SG in relation to matters pertaining to the Claimant’s employment despite the Claimant’s representations that she was conflicted out and not impartial in any event; This was because of the second, third, fourth fifth and tenth protected disclosures.

5.6.24 The requirement that the Claimant has to report to the interim CMO, initially a cardiologist and subsequently a DCMO from another trust seconded to the interim CMO role, every week about his clinical work; This was because of the ninth protected disclosure.

5.6.25 Failing to progress the Claimant’s DAW complaints. This was because of the ninth and tenth protected disclosures.

5.6.26 Commencing an MHPS investigation This was because of the ninth

5.6.27 Notifying the Claimant of “New Concerns” on 20th December 2023.

5.6.28 Setting vague, non-specific and personal Terms of Reference for the These (5.27 and 5.28) occurred because of the ninth protected disclosure.

5.7 Did the Claimant make the disclosures in good faith? If not, does the Tribunal consider it just and equitable to reduce any award it makes to the Claimant by no more than 25% in accordance with s18(4)/(5) of ERRA 2013. 6. Remedy

6.1 What, if any, financial loss has the Claimant suffered?

6.2 What, if any, award for level of Injury to Feelings is the Claimant entitled to?

6.3 What amount of interest is the Claimant entitled to? Findings of Fact Witnesses and other individuals

[26]The following people attended to give evidence on behalf of the claimant: 26.1 The Claimant (‘C’).

[27]The claimant also admitted written statements from:27.1 Dr S Abilash (‘SA’) – Deputy Chief Medical Officer (‘DCMO’)

27.2 Dr V Kennedy (‘AN’) – Associate Medical Director (‘AMD’)

27.3 Dr V Kohli (‘VK’) – Speciality Doctor/Acting Consultant

27.4 Dr A Narula (‘AN’) – Director of Medical Education & Head of School

27.5 Mr R Shipley (‘RS’) – Retired Health and Safety Director at Balfour Beatty, who attended R Board meetings following involvement with R’s Suicide Prevention Group

27.6 Dr A Yahia (‘AY’) – Older Adult Consultant

27.7 Mr Q Zada (‘QZ’) – Candidate for CEO post

[28]The following people attended to give evidence on behalf of the respondent:28.1 Mr M Axcell (‘MA’), Chief Executive Officer (‘CEO’) until November 2021

28.2 Mrs G Dean (‘GD’), Chief Financial Officer (‘CFO’)

28.3 Mrs M Foster (‘MF’), Acting CEO since December 2021, Substantive CEO since January 2023

28.4 Ms S Gondal (‘SG’), Non-Executive Director (‘NED’)

28.5 Ms K Kaur-Wilson (‘KKW’), Chief Strategy and Partnership Officer and Deputy CEO

28.6 Mr J Vanes (‘JV’), Chair until November 2024

28.7 Mrs A Williams (‘AW’), Chief People Officer (‘CPO’)

[29]The respondent also admitted written statements from:29.1 Mr R Dunshea (‘RD’), NED;

29.2 Ms A Geeson (‘AG’), NED; and

29.3 Ms J Jeffrey (‘JJ’), NED and Vice Chair until November 2024;

[30]The following individuals were referred to during the evidence:30.1 Mr S Ali (‘SA’), NED

30.2 Ms E Allen (‘EA’), PPA Adviser

30.3 Ms S Anward (‘SAn’), NHSE

30.4 Mr M Axcell (‘MA’), Chief Executive Officer (‘CEO’) until November 2021

30.5 Ms J Bailey (‘JB’), NED

30.6 Ms E Barnes (‘EB’), HR Business Partner

30.7 Ms K Boffey (‘KB’), NHSE

30.8 Dr B Chawda (‘BC’), AMD

30.9 Mr P Chamberlain (‘PC’), Head of Financial Planning

30.10 Mr I Crich (‘IC’), HR Consultant and Reviewer in the Independent review commissioned into CEO recruitment process.

30.11 Dr D Dalton (‘DD’), Consultant Psychiatrist at Norfolk and Suffolk NHS Foundation Trust, Case Manager of the MHPS investigation

30.12 Mrs G Dean (‘GD’), Chief Financial Officer (‘CFO’)

30.13 Mr N Dunaway (‘ND’), R’s Chief Information Officer (‘CIO’)

30.14 Mr W Farah (‘WF’), NHS Confederation co-ordinator of the national BME Leadership Network

30.15 Ms R Farmer (‘RF’), NHSE

30.16 Mrs M Foster (‘MF’), Acting CEO since December 2021, Substantive CEO since January 2023

30.17 Mr P Gayle (‘PG’), Chair since December 2024

30.18 Dr K Gingell (‘KG’), Joint Medical Director 2012-18

30.19 Mr K Girling (‘KGi’), Responsible Officer, Nottingham University Hospitals NHS Trust and member of LDMG

30.20 Ms S Gondal (‘SG’), Non-Executive Director (‘NED’)

30.21 Ms A Geeson (‘AG’), NED

30.22 Dr R Hanabe (‘RH’), Clinical Director (Walsall)

30.23 Mr J Heys (‘JH’), NHSE lay member and member of LDMG.

30.24 Dr J Hobbs (‘JHo’), Interim CMO

30.25 Ms R Ishaq (‘RI’), solicitor & Reviewer in the Independent review commissioned into CEO recruitment process.

30.26 Mr N Jamshed (‘NJ’), NED

30.27 Ms K Kaur-Wilson (‘KKW’), Chief Strategy and Partnership Officer and Deputy CEO

30.28 Dr L McGowan (‘LMcG’), Chief Clinical Information Officer (‘CCIO’)

30.29 Mr C Masikane (‘CM’), Chief Operating Officer and Deputy CEO to 2024

30.30 Ms S Mason (‘SM’), Medical Directorate Manager

30.31 Mr D Moon (‘DM’), NED

30.32 Ms G Nic Philib (‘GNP’), Chief People Officer, George Eliot Hospital NHS Trust & SWFT NHS FT and member of LDMG

30.33 Ms F Okwu (‘FO’), Head of Research and Innovation

30.34 Ms B Pattani (‘BP’), NHSE

30.35 Mr D Pandaal (‘DP’), Associate Director of Performance, Improvement and Planning

30.36 Ms E Pickup (‘EP’), Recruitment Consultant at Gatenby Sanderson (‘GS’)

30.37 Mr J Petty (‘JP’), Associate Director of Governance and Quality

30.38 Dr M Rao (‘MR’), current Interim CMO

30.39 Ms S Roberts (‘SR’), Chief Nursing Officer, Black Country ICB and member of LDMG

30.40 Ms L Saddler (‘LS’), NHSE

30.41 Mr A Shaw (‘AS’), Head of Programme Management and Commercial Support

30.42 Mr R Shipley (‘RS’), Governor

30.43 Dr J Sokolov (‘JS’), Medical Director, Higher Level Responsible Officer (“HLRO”)

30.44 Dr J Srinivas (‘JSr’), Interim CMO

30.45 Ms K Smith (‘KS’), Company Secretary

30.46 Mrs A Williams (‘AW’), Chief People Officer (‘CPO’)

30.47 Mr J Vanes (‘JV’), Chair until November 2024

30.48 Ms J Veale (‘JVe’), Deputy Chief Strategy Officer (‘DCSO’)

[31]The evidence contained continual use of acronyms and so for ease of reference the following glossary defines the terms that were used in the evidence:31.1 ‘AMD’ - Associate Medical Director;

31.2 ‘AOG’ - Assembly of Governors;

31.3 ‘BCPNFT’ - Black Country Partnership NHS Foundation Trust

31.4 ‘‘CCG’ - Clinical Commissioning Group;

31.5 ‘CMHT’ - Community Mental Health Trust;

31.6 ‘CMO’ – Chief Medical Officer;

31.7 ‘CMT’ - Corporate Management Team;

31.8 ‘CNO’ - Chief Nursing Officer;

31.9 ‘COO’ - Chief Operating Officer;

31.10 ‘CFO’ - Chief Finance Officer;

31.11 ‘CSO’ - Chief Strategy Officer;

31.12 ‘DAW’ - Dignity at Work;

31.13 ‘DB’ - Delivery Board;

31.14 ‘DCOO’ - Deputy Chief Operating Officer;

31.15 ‘DMD’ - Divisional Medical Director;

31.16 ‘DWMHPT’ - Dudley and Walsall Mental Health Partnership NHS Trust;

31.17 ‘FTSU’ - Freedom to Speak Up;

31.18 ‘HLRO’ - Higher Level Responsible Officer;

31.19 ‘ICB’ - Integrated Care Board;

31.20 ‘ICS’ - Integrated Care System;

31.21 ‘JCE’ - Joint Clinical Executive;

31.22 ‘LDMG’ - Local Decision-Making Group;

31.23 ‘MAC’ - Medical Advisory Committee;

31.24 ‘MD’ - Medical Director;

31.25 ‘MDM’ - Medical Directorate Manager;

31.26 ‘MDT’ - Multi-Disciplinary Team;

31.27 ‘MEC’ - Medical Executive Committee;

31.28 ‘MEG’ - Lead Provider Management Executive;

31.29 ‘MHPS’ - Maintaining High Professional Standards in the Modern NHS;

31.30 ‘NED’ - Non-Executive Director;

31.31 ‘NHSE’ - NHS England;

31.32 ‘NHSEI’ - NHS England and NHS Improvement;

31.33 ‘OOH’ - Out of Hours;

31.34 ‘PCN’ - Primary Care Network;

31.35 ‘PPA’ - Practitioner Performance Advice (formally NCAS);

31.36 ‘RO’ - Responsible Officer;

31.37 ‘SI’ - Serious Incident;

31.38 ‘SID’ - Senior Independent Director;

31.39 ‘SFI’ - Standing Financial Instructions;

31.40 ‘SRO’ - Senior Responsible Owner;

31.41 ‘STP’ - Sustainability and Transformation Partnership;

31.42 ‘WRES’ - Workforce Race Equality Standard Credibility

[32]We found all those witnesses who gave evidence before us to be truthful, and we did not believe that anyone was setting out to deliberately mislead the Tribunal. R’s witnesses gave clear and credible evidence and for the very large part, much of what they said was supported by contemporaneous documents in the form of the very many e mails that we were directed to read in pre reading and in cross examination. Those witnesses were measured and willing to make concessions stating where they felt that things could have been handled better.

[33]C’s evidence was extremely detailed, and we were satisfied that C genuinely believed that had had been subject to detrimental treatment because of his race and because he had made complaints of discrimination. The Tribunal were less satisfied that C held a genuine belief that any of the actions of the respondent were connected to his age. This was only briefly touched upon in the written witness statements and age was not mentioned at all during the many days of cross examination. Similarly C did not particularly dwell on any connection between the detrimental treatment he relied upon any the protected disclosures he says he made. C and his representative were reminded several times during the hearing that the Tribunal had to not only find that detrimental treatment had occurred but that this was because of the relevant protected characteristic/protected act/protected disclosure. We found that C was a credible witness with a good recall of the facts but his view of the rationale and reasoning of others for decisions being made became clouded by his strongly held opinions about how R should be led and managed and as events unfolded his shock and distress at his own treatment by the respondent which he believed to be grossly unfair and unjustified.

[34]We considered the evidence given both in written statements and oral evidence given in cross examination, re-examination and in answer to questioning from the Tribunal. We considered the ET1 and the ET3 together with relevant numbered documents referred to below that were pointed out to us in the Main Bundle and the Supplemental Bundle.

[35]To determine the issues set out above, it was not necessary to make detailed findings on all the matters heard in evidence. We have made findings though not only on allegations made as specific complaints but on other relevant matters raised as background. These findings may have been relevant to drawing inferences and conclusions. We made the following findings of fact:35.1 C is of mixed White/Asian heritage and his age at the relevant time was between 60 and 62 and his age group for the purposes of these proceedings is 60 – 65 years (the relevant age group for comparison is those below 55). He is a consultant psychiatrist and has been employed by R as CMO and RO for Medical Appraisal and Revalidation since 1 April 2020. He was formerly (continuously) employed as a consultant psychiatrist by the DWMHPT from 2004 and was Joint MD there from 2012.

35.2 R was formed as a result of the merger between the DWMHPT and the BCPNFT. It provides mental health services, learning disability and autism services in the Black Country which is subdivided into four localities, Dudley, Walsall, Sandwell and Wolverhampton. Relevant policies

35.3 We were referred various policies and procedures of relevance to the issues in dispute throughout the hearing. R FTSU Policy

35.4 R’s FTSU Policy was set out at pages 2205 to 2227. This policy was also referred to at times in the correspondence we saw as the ‘Raising Concerns Policy’ which was its previous title. This was R’s local policy in place at the time and is expressed as being applicable across R and should be read in conjunction with R’s Disciplinary Procedure, Grievance Policy, Bullying and Harassment Policy and the National FTSU Policy. Our attention was drawn to the following relevant provisions: “5. Process / Procedure

5.1 What Concerns Can I Speak Up About? You can and should Speak Up about anything that is concerning you. Just a few examples of this might include (but are by no means restricted to) o Risk o Malpractice o Patient harm/safety/experience o Wrongdoing, fraud or illegality o Poor cultures, attitudes and behaviours of individuals, teams or the wider organisation o Bullying, harassing, being abusive or victimising o Failure to uphold Trust values o Unsafe working conditions o Inadequate induction or training for staff o Lack of, or poor, responses to feedback around reported patient safety incidents. …..

5.2 Grievances The Speak Up Policy is not specifically designed to address individual or personal concerns and grievances, where the issue only relates to that individual’s own employment and the concern only affects them. That type of concern should still be raised and addressed but is better suited to our Grievance Policy. However, in those situations you should not suffer in silence and should still “Speak Up” to “someone”, be that a manager, HR, Trade Union etc. to get advice, sign posting and support to make sure the matter is addressed. If you don’t feel able to raise the issue via any of those routes for any reason then please do contact your FTSU Guardians who will be able to advise and support you in confidence on the best course of action. ……. 5.4 Open, Confidential and Anonymous Speaking Up Open - You Speak Up to someone, be that your manager, HR or a FTSU Guardian, and are happy for people to know where it came from. Confidential - We hope you will feel comfortable raising your concern openly, but we also appreciate that you may want to raise it confidentially. This means that while you are willing for your identity to be known to the person you raise your concern to, you do not want anyone else to know your identity. Therefore, we will keep your identity confidential, if that is what you want, unless required to disclose it by law (for example, by the police). Anonymous - You may choose to raise your concern anonymously, without giving anyone your name that does however make it much harder to investigate thoroughly and provide feedback on the outcome. Using the FTSU Portal on the Trust intranet does enable you to have real time anonymous text chat conversations with a FTSU Guardian, you can use a pseudonym to protect your identity which cannot be linked to your email etc. This has the advantage of allowing a dialogue where your FTSU Guardians are able to get all the information they need to action your concern, support, advise and provide feedback; so we would encourage this option if you wish to remain anonymous. …. 5.6 Whom Should I Speak Up To? Guardians do not need to be involved in raising concerns but we can be called upon at any point in the process to advise, support, sign-post and ensure things are moving. Our aim is to create a culture where Speaking Up is business as usual, not something to be anxious about or agonise over. There are a variety of routes for staff to raise concerns internally within the Trust which are detailed here: 1. In most cases the easiest way to get your concern resolved will be to raise it informally, or formally, with your immediate line manager (or lead clinician or tutor). They should be happy to hear what the problem is and willing to support you, as very often they are in a position to quickly and simply resolve the matters. However, if you’re scared to do that, or if you have spoken to them and they’ve done nothing or not fed back to you, or indeed if they are part of the problem, you can use any of the options set out below and remember at any point you can seek advice from your FTSU Guardians. 2. You can escalate to your immediate manager’s line manager, or other more senior manager or leader within the service. 3. You can also escalate to senior leaders within the Trust, e.g. Service line leads, Divisional Leads, Board member, Directors or Execs. 4. You can also contact HR or the Director of People 5. Trade Union members can contact their Trade Union directly, staff who are not members of a Trade Union, will not be eligible for representation but can contact a staff side lead for advice and support. * See below 6. You can contact the CEO, Chair or Non-Executive Director with responsibility for Freedom to Speak Up. 7. The Compliance and Safety Team 8. For clinical or medical staff your respective professional bodies e.g. RCN, NMC etc. 9. Safeguarding team / via Incident Reporting. 10. Fraud Team 11. Freedom to Speak Up Guardians – at any point in the process for advice, sign-posting, guidance and help …. 5.10 Example Process for Speaking Up Internally Example process for raising and escalating a concern

5.10.1 Step One If you have a concern about a risk, malpractice or wrongdoing at work, we hope you will feel able to raise it first with your line manager, lead clinician, tutor (for students), HR, Trade Union. This may be done orally or in writing. It is nearly always better, quicker and less stressful to flag a concern as soon as possible with your most immediate line manager if possible.

5.10.2 Step Two If you feel unable to raise the matter through those channels, or have tried to and not received a response, or if you just want to have a confidential chat to discuss options then please raise the matter with your Trust Freedom to Speak Up Guardians: Your Guardians have been given special responsibility and training in dealing with Speaking Up concerns. They will: o Treat your concern confidentially unless otherwise agreed. o Agree a course of action with you that you are happy with. o Escalate in an agreed manner based on the conversation to an appropriate person within the organisation or if necessary outside of the Trust. o Ensure you receive timely updates or feedback on your concern. o Protect you from being subjected to detriment for raising your concern o Ensure you have access to personal support since raising your concern may be stressful. On receipt, the concern will be recorded and you will receive an acknowledgement usually within two working days. Guardians keep a confidential central record and will record the date the concern was received, whether you have requested confidentiality, a summary of the concerns and agreed escalation, dates when you have been given updates or feedback and when the concern was closed.

5.10.3 Step Three If these channels have been followed and you still have concerns, or if you feel that the matter is so serious that you cannot discuss it with any of the above, including your Guardians, please contact any of the following (details will be available via the intranet) o Chief Executive Officer o Medical Director o Director of People o Director of Nursing o Non-Executive Lead with responsibility for Freedom To Speak Up o Chair

5.10.4 Step Four You can raise concerns formally with external bodies as a so called “whistleblowing event”, generally unless there are exceptional circumstances raising a concern externally should only be undertaken once internal options have been exhausted. 5.11 Speaking Up Externally 5.11.1 Disclosure of Concerns to External Bodies Some staff may feel they are unable to raise a concern by any of the internal methods previously listed or despite their best efforts their concern has not been satisfactorily resolved internally, they may choose to raise their concern externally as a Whistle Blowing incident. If for any reason you do not feel comfortable raising your concern internally, you can raise concerns with external bodies listed below:  NHS England & NHS Improvement for concerns about: o How NHS trusts and foundation trusts are being run o Other providers with an NHS provider licence o NHS procurement, choice and competition o The national tariff o Primary medical services (general practice) o Primary dental services o Primary ophthalmic services o Local pharmaceutical services ……. 5.12 Investigations Very often Speaking Up will not result in an investigation, in most cases the issue(s) can be dealt with quickly and easily and a resolution reached that suits all parties; in fact we want to normalise the culture of Speaking Up such that matters are routinely addressed as they arise and are not allowed to fester and get bigger. However, this will not always be the case and where it has been impossible to resolve the matter quickly with your line manager, it may be necessary to carry out proportionate investigation, a process which may involve HR. Investigations should involve someone suitably independent, within whom all parties can agree on (usually from a different part of the organisation) and properly trained who can reach a conclusion within a reasonable timescale. Wherever possible the Trust will carry out a single investigation (so, for example, where a concern is raised about a patient safety incident, we will usually undertake a single investigation that looks at your concern and the wider circumstances of the incident. The investigation will be objective and evidence-based and will produce a report that focuses on identifying and rectifying any issues, and learning lessons to prevent problems recurring. The Trust may decide that your concern would be better looked at under another process; for example, our process for dealing with bullying and harassment etc. Guardians themselves do not undertake investigations, and may not even have been notified of this process unless the concerns was escalated via them. However, if the person speaking up is unhappy with the setup of the investigation, or does not trust that it is being undertaken properly or in a timely manner, you may contact the Guardians for support and advice.” NHS National FTSU Policy

35.5 As well as R’s local policy, there is a national FTSU policy which appears on R’s intranet and was shown at pages 2684-2694. Our attention was drawn to the following relevant provisions of that document: “What will we do? The matter you are speaking up about may be best considered under a specific existing policy/process; for example, our process for dealing with bullying and harassment. If so, we will discuss that with you. If you speak up about something that does not fall into an HR or patient safety incident process, this policy ensures that the matter is still addressed. What you can expect to happen after speaking up is shown in Appendix

a. A. Resolution and investigation We support our managers/supervisors to listen to the issue you raise and take action to resolve it wherever possible. In most cases, it’s important that this opportunity is fully explored, which may be with facilitated conversations and/or mediation. Where an investigation is needed, this will be objective and conducted by someone who is suitably independent (this might be someone outside your organisation or from a different part of the organisation) and trained in investigations. It will reach a conclusion within a reasonable timescale (which we will notify you of), and a report will be produced that identifies any issues to prevent problems recurring. Any employment issues that have implications for you/your capability or conduct identified during the investigation will be considered separately. ….. Appendix A: Escalation: If resolution has not What will happen when I speak up? been achieved, or you are not satisfied with Steps towards Outcomes: the outcome, you can We will: resolution: The outcomes escalate the matter to Thank you for speaking will be shared Engagement with the senior lead for up with you relevant senior FTSU or the nonHelp you identify the wherever managers (where executive lead for options for resolution possible, along appropriate) FTSU (if you are in an Signpost you to health with learning and Referral to HR NHS trust) and wellbeing support improvement process (where Alternatively, if you Confirm what identified appropriate) think there are good information you have Referral to patient reasons not to use provided consent to safety internal routes, speak share process(where up to an external Support you with any appropriate) body, such as the further next steps and CQC or NHS England keep in touch with you Supplementary information on Freedom to Speak Up in NHS trusts and NHS Foundation Trusts

35.6 C referred us to this document which was dated July 2019 (pages SB451-71). It was published by NHSE and NHSEI together with the National Guardian’s Office and is stated as accompanying two other documents (which we were not specifically taken to) titled Guidance for boards on Freedom to Speak Up in NHS trusts published by NHSI and the National Guardian’s Office (shown at pages SB439-50) and NHS foundation trusts and the Freedom to Speak Up review tool for NHS trust and foundation trusts. It set out descriptions of the individual responsibilities of board members in relation to FTSU, specifically mentioning the role of the CEO and Chair; the Executive Lead for FTSU, the Non-executive lead for FTSU; Human resource and organisational development directors, and the Medical director and director of nursing. We were referred specifically to the section on the responsibilities of the non-executive lead, as follows: “The non -executive lead is responsible for:

• role-modelling high standards of conduct around FTSU

• ensuring they are aware of the latest guidance from National Guardian's Office

• challenging the chief executive, executive lead for FTSU and the board to reflect on whether they could do more to create a healthy and effective speaking up culture

• acting as an alternative source of advice and support for the FTSU Guardian

• overseeing speaking up matters regarding board members ~ see below. We appreciate it can be challenging to maintain confidentiality and objectivity when investigating issues raised about board members. This is why the role of the designated non-executive lead is critical. Therefore, in exceptional circumstances, we would expect the non-executive lead to take the lead in determining whether:

• sufficient attempts have been made to resolve a speaking up concern involving a board member(s) and

• if so, whether an appropriate fair and impartial investigation can be conducted, is proportionate, and what the terms of reference should be for escalating matters to regulators, as appropriate. Depending on the circumstances, it may be appropriate for the nonexecutive lead to oversee the investigation and take on the responsibility of updating the worker. Wherever the non-executive lead does take the lead, they inform the FTSU Guardian, confidential, of the case; keep them informed of progress; and seek their advice around process and record - keeping.” DAW Policy

35.7 R’s DAW (Preventing Bullying and Harassment) Policy was shown at pages 2180- SB 767-794). Of particular note were the following provisions: “1. Introduction The Trust is committed to the welfare of its workforce supported in part by creating a Caring First Culture of openness in which the dignity of individuals is respected. The Trust also recognises that employees may wish to raise concerns about their treatment or that of their work colleagues. All employees are encouraged to raise concerns about bullying, harassment or victimisation as soon as they arise to increase the likelihood of an effective informal resolution. ….. ‘1.1 Policy Principles Wherever possible, via the support mechanisms outlined in the policy, bullying and harassment complaints will be raised initially with the person(s) involved to alert them to the impact of their behaviours. In the event that this does not resolve the issues, or the individual feels unable to address the person directly then matters should be raised with the employee’s direct line manager a Work Place Advisor or their Trade Union Representative. It is envisaged that the majority of complaints will be resolved via informal discussion between the employee, their line manager and the person(s) involved. If the informal process does not resolve the concern or the concern is of a very serious or of a persistent nature, there is a formal procedure to follow whereby employees are required to put their concern in writing. This is a confidential process designed to deal with the employee’s concerns in a prompt, fair, consistent and transparent way. While the process is confidential is should be noted it is not anonymous. Further clarity on how confidentiality is managed can be found in the sections below. and ‘5.16 The Rights of the Subject of the Complaint A member of staff who is the subject of a complaint will always be advised of the nature of the complaint and have the opportunity to respond, before any formal decision that may affect their future is taken. The actual timing of the notification may vary, for example if the complainant is considering which option they may wish to pursue as part of the informal options for resolution being advised by a third party at this point may limit the opportunity to resolve the matter informally. A member of staff who is subject of any form of investigation undertaken into a matter will be advised at the earliest opportunity. For the avoidance of doubt that is prior to commencement of that investigation.’ Stage 1 – Informal Options for Resolution If employees have a complaint of bullying or harassment, they are required to raise the matter as soon as is reasonably practical with their direct line manager. If the line manager is directly involved in the matter concerned, staff are required to raise the concern with the next level of manager in the first instance. This may be done verbally or in writing. This will normally be within 4 weeks of an incident occurring. Employees should state that they are raising a concern under the Dignity at Work – Bullying and Harassment Policy. The policy lists and describes a number of different options open to an employee stating it is for them to decide the best course of action to take. The examples are raising the matter directly, seeking mediation, seeking support of their line manager, getting advice from a trade union or HR or holding an informal meeting. It does on to describe Stage 2 being a Formal Procedure “where it has not been possible to resolve the concern informally”. Stage 3 set out the right of appeal. MHPS Policy

35.8 The MHPS policy, which was titled the ‘Disciplinary and Performance Management of Medical Practitioners Policy’ was included at pages 2228 to 2265. This was a lengthy disciplinary procedure which applied to medical staff within R and implemented the national NHS framework to manage concerns about conduct, capability and health matters. We were referred to the following provisions in evidence and submissions: “4.1.1 When serious concerns are raised about a medical practitioner, the Trust will urgently consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the practitioner from the workplace, details of which are contained within this policy. … 4.1.3 When serious concerns are raised about a medical practitioner, the Trust will urgently consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the practitioner from the workplace, details of which are contained within this policy. … 4.2.2 The medical practitioner concerned must be informed in writing by the Case Manager, as soon as it has been decided:  That an investigation is to be undertaken;  The name of the Case Investigator;  The specific allegations or concerns that have been raised.” Framework for Managing concerns about ROs.

35.9 We were directed to a document at pages 2104-2129 which was the Framework for managing concerns about ROs who have a prescribed connection to a HLRO of NHS England. At page 2112, the following provision was included: “7. Investigation Concerns may be raised about an RO by/within an employing organisation as well as by a HLRO. If the concerns are raised by/within the employing organisation the CEO must contact the HLRO to notify them of the concern. In the case of a HLRO becoming aware of a concern about an RO, the HLRO will contact the CEO of the employing organisation to ensure they are aware of this. If a concern arises about an RO, an investigation may be deemed necessary and dealt with in the following way: Initial Assessment Phase The HLRO should:

• Ascertain if the CEO, General Manager, and/or Director of HR of the ROs designated body are aware of concerns;

• Ascertain if the RO works in other healthcare organisations and if they require informing;

• Ascertain the involvement of the GMC ELA and The National Clinical Assessment Service (NCAS) and involve where necessary;

• For designated bodies where the RO is also the owner, the CEO/board of the designated body (or equivalent) of the organisation will be consulted to ascertain the correct individuals

• In discussion with the above, and with appropriate colleagues establish a local decision making group, constituted from those recommended below*, and taking into account all that is known in relation to the RO and designated body, take a judgment as to whether: o An investigation is required, this judgement may include the use of a risk assessment relevant to the employing organisation o The RO should continue undertaking RO duties *Resources for this group may include; CEO, Chair, HR Director, Lay person, Medical Director if different from RO and an external RO if not. The group should usually include at least 3 out of 4 of the above with the option for one to nominate a deputy. NCAS and the GMC ELA (may / could) be used in an advisory manner and informed of relevant investigations in line with the designated body’s policy.” Grievance Policy

35.10 R’s Grievance policy was shown at pages SB731-749. In particular our attention was drawn to the following provision: “5. Process / Procedure Stage 1 – Informal Stage All grievances must be dealt with through the informal process in the first instance. Every attempt should be made by both the manager and the employee to resolve the issue in an informal manner, where possible, through discussion at a local level.” Joint Medical Director and CMO appointment 2018-20

35.11 From 2012 C shared the role of Joint MD of the DWMHPT with KG until she stepped down in January 2018. C carried out the RO duties at this time and KG was the Caldicott Guardian, although the substantial part of the MD role fell with C, because of his RO duties and as he covered adult care which was the majority of the workload. C had objected to this shared role from the outset as he felt it weakened the influence of the MD, given the possibility for differing views, although acknowledged that he and KG had made the arrangement work. C was approached in 2015 by the CEO at the time suggesting that KG be the single MD, with C as her deputy, and he strongly objected to this. When asked about this in cross examination, C explained that he felt that the previous CEO was deliberately trying to subordinate him and was exhibiting bad faith and bias in favour of KG. These plans to appoint KG did not transpire however as that CEO left and was replaced by MA in 2015 (with C holding the view that this was as a result of C raising concerns with the Board at the time). C held the view that when MA took over, he also showed favouritism towards KG and that he felt that MA could be complimentary to him one day and antagonistic the next. C felt that the reason this took place was subconsciously influenced by his race which was denied by MA. We were unable to make a finding of this nature on the scant evidence before us. No complaints of discrimination were raised by C at this time.

35.12 C continued as the single MD after KG subsequently left in 2018. For a period of time from May 2018 to 8 February 2019, an interim Joint MD was appointed. C was of the view that it had been widely accepted at the time of KG’s departure that a single MD role was preferable and this had been supported by the MAC, and that it was MA who insisted on reinstating the joint arrangement. C was of the view that appointing this individual was “demeaning and undermining” to him and undervalued his experience as his colleague had a “tiny fraction” of his experience. C believed that MA forced C to share the role because he knew C had CEO aspirations and wished to obstruct them. MA denied this was the case. We saw an exchange of e mails between MA and C from February 2018 when the issue of the joint MD role was being discussed (pages 69-72). C sent a lengthy e mail setting out his view that the structure at the time should be a single MD (C), with two Associate MDs being appointed to report to C. He set out in detail why he felt this arrangement was preferable, making many points about workload and other factors. MA acknowledged and stated that he agreed with many of the points made by C stating that a move to an interim joint role following KG’s departure was for a short time but was important, referring to the need for senior medical leadership input across a number of things and a need to ‘rebalance’ C’s workload. MA also said in response to cross examination that he felt that at that time post the TCT transaction ceasing, there was a lot to be done that involved clinical leadership at a senior level and C himself had identified his capacity as an issue. He told us that he took C’s views into account but took a different decision as the CEO at the time. There is insufficient evidence that any decision relating to the appointment of this individual or the sharing of this role was deliberately made to undermine C’s career progression. We conclude from this e mail exchange and oral evidence that capacity issues and the need for senior leadership cover was the main driver for this decision. We were unable to draw any inferences from any lack of recollection from MA about the precise details around decisions made in 2018 to suggest the motive C now alleges.

35.13 MA was C’s line manager and conducted appraisals in respect of his MD role. In his role as RO, C was also subject to a separate and very detailed appraisal process. C was taken to the written record of these appraisals during cross examination, C agreed that some of his appraisals with MA had been “patchy” but pointed to successful appraisals as an RO, which we accepted. Following the claimant’s MD appraisal for the year 2017-8, MA wrote to him (pages 148-150) informing that his rating for the period covered was ‘adequate’. This letter made reference to C having submitted additional information following an initial appraisal meeting in April 2018 when C had been unable to provide paperwork and had then submitted a 60-page document including feedback on C’s clinical role. MA noted that this appraisal had not been intended to appraise clinical work. He went on to note that there had been a number of positive achievements in particular the rating of ‘Good’ in the CQC assessment and good staff survey results. It confirmed that 2 of the 5 objectives set for that year had been achieved, with 2 being partially achieved and 1 not achieved. It set objective for the next year and suggested that areas for improvement were to focus on delivery of the challenges he put down. It further noted that there were capacity issues for C. C did not agree with the assessment provided and gave his view that MA had a tendency to understate what C did. NHS Leadership Academy Aspiring CEO Programme

35.14 This is a training programme devised for those within NHS management that aspired to become a CEO, providing a potential ‘pipeline’ for those on the path to becoming a CEO. It is a competitive programme that individual managers can apply for (with support from line managers) and a selection process is carried out to choose the candidates for participation. In 2015, C applied and although unsuccessful received positive feedback and was encouraged to apply again. In 2016, C did not apply having missed the deadline, stating that because he was working so hard at this time, he did not prioritise his own development. C also acknowledged that during this year he had failed to chase an opportunity to join a Leadership 360 programme during that year. C was reminded by e mail on 21 May 2018 that the deadline to apply for the 2018 NHS Leadership Academy Aspiring CEO programme was 2 weeks away. C did not apply by the deadline but contacted the organisers who indicated that his application would be considered if he received a prompt e mail from his line manager confirming that he was willing to support C’s application. C emailed MA at 10:57 pm on Sunday 3 June 2018 (when MA was on leave) asking MA to confirm by email by 10 am the following day that he was willing to support his application (page 134). When it was suggested that this was a chaotic way to put his request, C stated that he had been so committed to work and busy that he had not prioritised his own development needs. C felt that he had contributed to a successful year for DWMHPT and had advanced MA’s own aspirations to be CEO for any newly merged trust and thus it would not be too much to ask, given that his application had been supported in the past by MA. MA did not feel able to support C’s application on short notice, stating that he had not had the time to discuss it with C. We did not find this decision to be unreasonable given the short notice involved and we did not attribute any motive of bad faith or trying to block C’s career progression as seemed to be suggested.

35.15 C subsequently enrolled on and completed the Kings Fund Top Manager programme in 2019 which was a residential course of around 20-25 days attended by those in senior roles within the NHS. C acknowledged that he had the opportunity to network with many senior NHS managers including those in CEO roles. Merger of DWMHPT and the BCPNFT and establishment of R

35.16 We heard much evidence about the process by which R was formed and the previous attempt to merge (or be taken over) by the Birmingham Community FT in 2017 (‘the TCT proposal”). C strongly objected to this proposal and KG supported it, as did MF who at that time was the Integration Director. The TCT proposal did not ultimately go ahead with the MAC at the time expressing major reservations. After the TCT proposal came to an end, a new process began to merge DWMHPT and the BCPNFT which C was supportive of. C contended that this process was clinically led by him and his medical counterparts at BCPNFT through a JCE. R accepts that C was involved in the JCE which was led by both Joint MDs and also other senior directors. C was responsible for the development of the detailed clinical strategy for the newly merged trust even before his appointment as CMO in April 2020 (see below) and concerns had been raised by the reporting accountants as at March 2020 that this had not been completed (with only a 6 page sketch being in place). We were referred to a risk register completed at this time which identified that there was no clinical strategy in place for Day 1 which was designated as an amber risk.

35.17 In the run up to the executive appointments of the newly merged trust in 2020, there were discussions between C and MA about C again accepting a joint CMO arrangement with a colleague, MR. C contended again that MR had a fraction of his experience and also that the business case for the new trust included just one CMO. R contends that this had been the best option at the time and MA gave evidence that this was related to clinical capacity and feedback coming from NHSE about the development of clinical strategy not being in place for the newly merged trust. He also mentioned emerging concerns about a potential pandemic. C objected to the position being performed on a joint basis and wrote to MA on 28 January 2020 setting out his objections (pages 183-5). He stated that he considered moving him to a joint MD role to be a demotion and stated that given his knowledge of his own medical management team and the MAC’s views, that a joint MD structure would “damage the medical engagement”. C denied that this was coercive or that he was trying to use the views of the MAC as leverage for his own ambitions. Ultimately R accepted that a single CMO role was preferable with MA stating that he listened to C’s concerns and recognising them changed his decision.

35.18 C asked the Tribunal to draw inferences from statements he says were contradictory and untrue statements about the reasons why C was asked to perform the CMO role on a joint basis on two occasions and conclude that these had a discriminatory motive. However we were unable to conclude that any of the statements made were untrue or indeed particularly contradictory and ultimately C’s final request for the role to be performed on a sole basis was granted.

35.19 C applied for and was appointed to the CMO role as of 1 April 2020 when the merger took effect (see appointment letter at pages 256-7). The relevant job description for this role was set out at pages 244-255. MA became the CEO of the newly formed R at this time.

35.20 C’s first full year appraisal in his new role took place in August 2021. An e mail sent to the Claimant by MA with the record of that appraisal was shown at page 371 and recorded that C had an excellent year in particularly highlighting his response to the pandemic, appointment of senior clinical leadership team and moving forward with the clinical strategy post-merger. It emphasised that now the leadership team was in place, it was essential that C had to deliver on the first year of the clinical strategy acknowledging that strategic/system wide clinical leadership had been challenging for C in the past year. C stated that he believed that this was a ‘typical understatement’ of the work that he had done but we did not find this to be the case and appeared generally a balanced comment. Departure of MA as CEO and appointment of MA as Acting CEO

35.21 In November 2021, MA stepped down from his day-to-day CEO role as he was seconded to the ICB. At that time MF was the Chief Partnerships Officer (‘CPO’) and DCEO and was appointed by the Remuneration Committee as Interim CEO. CM who was the COO at the time was appointed as Interim DCEO. There was no competitive process to appoint to these two interim roles. This was announced to all staff by e mail on 19 November 2021 (page 375). SA was then appointed to the role of DCMO following an expression of interest process in January 2022 and C informed his executive colleagues by e mail on 11 January 2022 (page 408-9). Appointment of DCOO March-April 2022.

35.22 C was involved in the selection panel for the appointment to the role of DCOO which took place over two days on 31 March and 1 April 2022. This was chaired by CM (Black ethnicity) who was the recruiting manager and also included KKW (Mixed White and Asian ethnicity); AW (NonWhite ethnicity); GD (White ethnicity) and AG (White ethnicity). C acknowledged that each of the six members of the selection panel had an equal voice albeit that the appointing manager, CM would have more of a say than others, especially if it was close. There were 5 candidates being interviewed. DC (White ethnicity) was one of the candidates who had been interviewed for the role and was an internal candidate who had worked for DWMHPT. C had worked alongside her (she was in a more junior role), and C felt she was good at her job but described her as not in his ‘camp’. PLK (Black British ethnicity) was another candidate who was external.

35.23 The process consisted of interviews of the candidates by those on the selection panel where each candidate was given a score from 1 to 3 by each member of the panel for answering each of 13 questions. The maximum score that could be achieved was 39 from each member of the panel and 234 across all 6 members of the panel. The candidate was also asked to give a presentation and would be scored up to a maximum of 5 points. This meant a maximum of 239 points were available with the ‘pass mark’ for being appointable being allocated at 167. The scores were then collated added up and the candidates were ranked. The completed score sheets for the exercise were shown at pages 423 to 437. C scored DC a total of 36 points on the interview questions which was the highest score given to any candidate by any of the panel members. When asked in cross examination whether he had reflected that perhaps his scoring was not as objective as it could have been and his previous knowledge was skewing his assessment, C said he always checked himself when scoring and felt that given the detailed notes he took, he could justify the scoring if he were challenged. C gave DC the highest overall score of the 5 candidates and PLK joint lowest. CM gave two other candidates a higher total score than PLK scoring PLK third with 29 and DC fourth with 28.5. AW also gave DC the highest score at 30 and ranked PLK joint second. GD ranked DC and PLK joint highest with a score of 29 each. KKW ranked PLK second with a score of 28.5 and DC 4th with 27.5. AG ranked DC second with a score of 30.5 and PLK third scoring her 29. 5.. DC’s total score for the interview questions across the whole panel was 181.5 which meant she was ranked first. PLK’s total score for the interview questions was 165.5 and she was ranked third. DC was scored 5 for her presentation for the group and PLK was scored 4.

35.24 In addition to the panel interviews, the candidates attended stakeholder panel sessions where they were asked to lead a discussion with a number of invited stakeholders on a given theme after which feedback was supposed to be given by stakeholders attending on the performance of each candidate to the selection panel to assist them in their decision making. The feedback collated by the stakeholder panel for this exercise was shown at pages 447-450 and records general comments made and also scored each candidate on leadership and their performance as against the brief. The candidates were also ranked by the stakeholder panel with DC being placed first and PLK second. We were taken to an e mail that had been received by GD on 4 April 2022 from a member of her team, J Picketts (‘JPi’), who had attended the stakeholder panel (page 445). In this e mail, JPi forwarded the feedback and commented that he felt there had been some favouring of an internal candidate which had impacted the scoring and to him seemed ‘strange’. On 5 April 2022, KKW was sent an e mail from a member of her team, W Ewins giving feedback of her experience at the stakeholder panel (pages 466-467) stating that there was some discomfort in the room and that perhaps all voices were not heard. C suggested in his evidence that these e mails had been prompted by GD and KKW to try and undermine the process and his scoring but we could see no evidence to suggest that this was the case and were unable to infer this from the timing of the e mails being close to C first putting his complaints in writing. The e mails were also close in proximity to the selection panel itself.

35.25 At the end of the second day of interviews, there was a discussion about each candidate and how they had been scored. C said that the discussion had started how he had expected with a discussion but then it changed to each member of the panel identifying their preferred candidate without comparison of scoring. He said that GD stated that all candidates who achieved an appointable score could be equally appointed irrespective of ranging and that the scores were just a guide. C said that there was a push from GD and KKW for the panel to decide to appoint PLK. He acknowledged he became frustrated by this which he felt was unfair to the other candidates. C was challenged by AW on having scored DC significantly higher than other candidates (as he had scored DC a maximum score of 3 on each question which she felt was unusual). AW, GD and KKW gave evidence that C became aggressive and forceful and started to dominate the conversation. There was then an unrelated serious incident within R which meant the discussions had to be cut short and the meeting closed. There was clearly a difference in perceptions as to how the meeting went but we find that C was asked about his higher scoring of DC which he took offence to, and the conversation became heated.

35.26 On Saturday 2 April, the day after the meeting C e mailed his fellow selection panel members (pages 438-439). He made some general comments about how he felt a selection panel should be conducted and then expressed his concern that the panel were being rushed towards a conclusion. He referred to the scoring which had been circulated and pointed out that DC had scored the highest and was the “strongest candidate’, mentioning that she was someone that they had worked with for 2 years covering many roles and working well with and commanding respect of colleagues. He stated that this was from his perspective “absolutely compelling and unimpeachable evidence” for her to be offered the role. He further stated that he “could not agree” to appointing a candidate other than the one who had performed the best and he wanted to “make it clear to you all”. CM responded stating that he had asked for a meeting to be arranged “where we will hear everybody’s reflections and then I can make my decision”. AG also responded suggesting that a pause be taken in the process to reflect, noting that the discussions had been unusually complicated and needed to cool down.

35.27 The discussion resumed on Monday 4 April at an in-person meeting. C said that KKW and GD again made a ‘case’ for PLK, and he suggested that everyone shared and justified their scores for each candidate. He said he felt he “needed to assert what a fair process would be”. At this time CM suggested that C’s scores had been an outlier and that C may have had subconscious bias. C was offended by this and suggested to CM that there was in fact a problem with his scores. He asked AW to intervene, asking her whether she thought it was fair. CM then decided to close the meeting and stated that he would go away and think about it at which point C left the meeting stating that he was upset and needed to ‘come to terms with’ the situation. C said he felt beleaguered and ‘ganged up’ on by the other members of the panel and also acknowledged that at that time he felt particularly vulnerable and sensitive as his father was very ill which may have affected the way he approached this situation, stating that he may have gone “beyond what he normally would do to defend” his reputation. KKW gave evidence that she found C’s behaviour to be aggressive, and he banged his fists on the table. AW gave evidence that an argument ‘erupted’. GD stated that C became aggressive and banged his fists on the table. There was no complaint made about C banging his fists on the table at the time by anyone present at the meeting. AW’s account of the meeting (see below) refers to an argument between CM and C and that both were offended by the other and referred to matters ‘escalating’ and being ‘extremely uncomfortable’ with MW threatening to leave and ultimately leaving. We find that C did behave aggressively during this meeting and that this included a physical gesture akin to banging his hands on the table (albeit this may not have been intended as such) as he got up to leave after the exchange with CM. Whilst AW did not mention an incident of banging fist expressly, she did refer to escalation of the incident and that matters were extremely uncomfortable. We find that this flags up that something other than an ordinary verbal discussion was taking place and supports the evidence of KKW and GD. We also accept that his behaviour may have been affected by difficulties he was experiencing outside work at this time.

35.28 On 5 April 2022 C e mailed panel members again (page 469-470) referring to a serious allegation about scoring having been made against him and that he had “tried to defend himself against what came as something of a shock”. He suggested that all scoring sheets be submitted (and that he would like to see others scoring sheets) and went on to explain why in his view DC should be appointed based on the scoring. He repeated in this e mail why he believed that DC should have been appointed and stated that he stood by his evaluation which he believed was supported by detailed notes and that it was aligned with the way the stakeholder panel had ranked candidates. He stated that he didn’t want to “escalate this unhappy scenario and cause any collateral damage” and stated that having put on record his objections that it would not affect his working relationship with CM or his executive colleagues moving forward. CM responded on 6 April 2022 (page 469) stating that he too would continue to work productively with C notwithstanding the disagreement. He stated that all scores would be accepted by him and stated that “4 candidates were appointable”, stating that scoring was “one part” of how the decision was made and the discussion of the selection panel about what the organisation needed was also part of the assessment. He stated that a decision would be made by him that day and the panel members would be informed. He e mailed again later that day to confirm that he had decided to appoint PLK (page 474) explaining that he felt she had given solid examples of things she had delivered in complex organisations and at scale and could help drive forward the vision of R.

35.29 C responded to this e mail on 7 April 2022 (page 472-473) again setting out what he saw were the flaws with the selection process and stated that CM had personally attacked his integrity by stating that his scoring was not valid and suggesting he had displayed unconscious bias. He further stated that he felt he was due an apology from CM for this. He reiterated his view about the selection being invalid given the outcome of the scoring process. He stated that this had been the most unusual panel he had ever sat on stating that it lacked scientific rigour or analysis as to who was the best candidate and stated that he would “distance himself personally” from the outcome which he felt was unfair and not transparent or accountable. He concluded by stating that he believed that “all processes for appointment in good organisations with just cultures and strong values must be transparent and accountable and stand up to any scrutiny”. C also raised the issues he had around the selection process during a telephone conversation with JV on 11 April 2022 stated that he felt his views were not being respected and his voice was not being heard. JV’s written notes of the discussions during that call were at page 477. C also raised these matters with MF directly during a one-toone discussion which took place on 14 April 2022.

35.30 On 19 April 2022, MF wrote to the members of the selection panel (page 491-492) stating that having spoken to those involved (other than AG) that there was a common factor was that all involved felt “upset and distressed” by the process and it was a degree of upset that exceeded that of a normal disagreement between colleagues. She suggested that if that was not worked on, it could be difficult to move on positively as a team. She suggested that with the panel’s agreement independent facilitation/mediation should be engaged to work through concerns and re-set positive working relationships. She asked the recipients to let her know as soon as possible whether they were in agreement. C agreed in cross examination that this was an appropriate and intelligent response to try and nip a situation that had developed in the bud. MF also indicated in this email that she would be seeking assurances from AW about the robustness of the process after having discussions the previous week. She did this by e mailing AW the same date (page 487-488) where she referred to C having raised the matter with her and asked for some assurance around the rationale for appointing a candidate who was not the highest scoring. AW gave her account in a response the same day (page 486-487) referring to heated and escalating discussions and stating that in the second day of discussions, KKW, GD and AW had expressed a view that scoring DC the highest did not reflect their overall view of performance. She referred to an argument taking place between C and CM. We saw GD’s response to MF’s email (page 479) where she said she would be part of a facilitation/mediation and although was concerned about seeing the same behaviours again, it was worth trying. Issue

5.4.1 - Alleged PID 1 – E mail complaint about the process of appointing DCOO on 27 April 2022

35.31 C responded to MF by e mail on 27 April 2022 (page 489-492). He referred to having shared his concerns at a recent 1:1 with her and stated that although the process had been comprehensive, he had serious concerns about the manner in which the decision on outcome was reached. He referred to the panel discussion being limited and had a lack of curiosity about why particular scores had been given. He mentioned a “disregard for individual candidate rankings” across panel members and the stakeholder in favour of subjective personal judgments. He complained that the outcome was not decided in the presence of the panel with broad panel agreement and sign off and noted, “Senior appointments are very important decisions and must stand up to scrutiny and be values driven and just. When they don’t meet this standard staff morale and organisational culture can both be damaged.” He suggested a review of the process and referred to comments having been made during discussions about scores being ‘just a guide’ and that a preferred candidate being ‘right for the trust.’ He went on to address the issue of executive relationships stating that whilst robust debate and disagreement is expected in a strong executive team, he felt that there were comments made at the panel that were “uncalled for” and should be reviewed. He suggested that good work to improve teamwork with the right facilitator and team development would be helpful. C gave evidence that he believed that his e mail amounted to a “whistleblow about an unfair and manipulated recruitment process” However C agreed in cross examination that these were in fact issues he was raising around a specific workplace process, the dynamics of individual relationships and a suggestion as to how matters could be improved. He also said he was “defending” himself against the process.

35.32 MF responded to C’s e mail on 3 May 2022 (page 495) suggesting that a follow up discussion about this particular process take place between CM, C and AW. She went on to state she remained concerned about the level of upset and distress as a ‘stand-alone’ issue and suggested that independent facilitation conducted by ACAS would be of assistance.

35.33 C met with CM and AW on 13 May 2022 and after that day sent an e mail to AW and CM setting out his views on the discussion mentioning that there had been meaningful agreement on the importance of following a clearly set out process in future and clarity about what scoring meant. He said he felt they could move on and mentioned the importance of team building amongst the executive team as a way of moving forward. He stated that he “didn’t see any purpose in following [MF]’s suggestion of engaging ACAS to facilitate around this” because the issue from his perspective was entirely about process and not interpersonal and stated that he wanted to look forward to a positive team building program. He finished his e mail by stating that he would still be interested to know the HR perspective on how the outcome was arrived at and whether it accorded with process and the individual performance of candidates. C asked the Tribunal to find that this e mail did not amount to C refusing to agree to mediation but simply giving his view that it was unnecessary. We did not accept this interpretation and find that C was communicating to AW that he was unwilling to participate in mediation (as he felt it was unnecessary) and we accepted AW’s evidence that this is what she concluded when she received C’s response. AW then communicated this to MF who concluded that C had “changed his mind” from initially agreeing to some sort of mediation and thus did not pursue the matter further.

35.34 C spoke with JV by telephone on 4 August 2022. JV made a note of that conversation after it had finished and this was shown at page 476. In that note he recorded that C expressed concerns about the clinical culture being ignored and that talent was departing and that things had become too corporate. He also recorded C as stating that he was unsupported by “a young exec team” and that he would “do what’s necessary/won’t be destructive but will protect and defend the good”. C said he did not recall much of the conversation nor that he said colleagues were young, although might have said they were inexperienced. He felt that JV had mischaracterised the conversation and did not feel that this was language he would use. JV gave evidence that he remembers C calling him unexpectedly one lunchtime and spent 70 minutes making criticisms of the Trust. We find that this note broadly reflects what C said at the time and that the noting down of the conversation about not being destructive in particular had the ring of truth of something that C did say and in a similar tone to some earlier correspondence. It was a striking comment and is unlikely to have been recorded in that particular way had it not been said. Appointment of CEO August 2022

35.35 The role of CEO was advertised on 8 August 2022 (see page 544) following the previous CEO, MA having been appointed to the substantive role of CEO for the ICB. The process was being managed by a firm of head-hunters, Gatenby Sanderson (‘GS’). The job advertisement linked to a candidate pack for the role (shown at pages 545-562). This gave detailed information about R and its management and governance structures and a job description for the role of the CEO was included (pages 557-560) with a person specification at page 561. C’s Application for CEO

35.36 Around the time of his application, C spoke to JV to inform him that he would be applying. During the conversation, JV stated to C that he was “brave”. JV explained that he was thanking C for his interest and acknowledging that it was not an easy job when making this comment, which we accepted but it is clear that C took this as a slight against him and perhaps understandably felt this showed a lack of enthusiasm for his application on JV’s behalf. JV recommended that C get in touch with GS for support in formulating his application. C had already spoken to GS before this conversation and stated that he had not been given advice other than to take into account the person specification and get in touch with JV. C did not get back in touch with GS after his conversation with JV. JV spoke to the majority but not all of the candidates who applied for the CEO position and advised all of them to speak to GS to gain input on their applications. He used these conversations to impart information about R that external candidates may not be familiar with the equalise the process. In relation to those longlisted, JV spoke to KD and ME before it took place and QZ and MF after (just before the interviews took place). JV also acknowledged that these conversations did play some factor in the selection in terms of being able to test some of the evidence that had been put in the application. At least some of the candidates also spoke to other executives at R and QZ’s witness statement detailed meeting with various of these which took place in late October and early November 2022. He mentioned that a “recurring theme” of such meetings was a “targeted criticism of C” not stating who was involved other than it was not AW or DW. QZ said he raised a confidential concern with JV about this. He went on to refer to two executives strongly criticised C’s strategy to increase inpatient beds, and he felt that the criticism was personal. C asks us to accept that it is more likely than not that it was GD and KKW that QZ was referring to as GD could not recall this. KKW was not asked about this. We are not able to make the evidential mental leap required on the basis of this non-specific evidence to a finding of fact that these comments were made by GD and KKW (and in fact it is unnecessary for us to do so to determine the particular complaints before us). QZ decided to proceed with his application for the role despite his concerns although also saying he felt that the outcome was “predetermined”.

35.37 C applied for the role on 8 September 2022 by submitting a CV which was shown at pages 643-670 and a personal statement shown at pages 871-681. The CV listed all roles undertaken by C in his medical career to date in detail as well as the senior management roles he had undertaken since 2005. He acknowledged that much of the detail about working in acute hospitals was not directly relevant but felt it did include relevant detail as well. C said he was not aware of a word limit for the application and felt that the application at this stage was just to demonstrate that he met the person specification which he said it was clear he did. He also explained that he felt that the achievements of his career had a tendency to be undervalued, so he thought it was important to include all detail to show that all his achievements were included.

35.38 12 other candidates also applied for the role including the four named comparators for this claim, MF, QZ, KD and ME. ME’s CV and covering letter were shown at pages 598-603. ME was an Executive Director leading the care and support business for a not-for-profit housing and care group and had previously carried out board level roles at an NHS trust in the West Midlands and a Managing Director role at a Primary Care trust. She had undertaken management programmes including the West Midlands NHS Aspiring Chief Executives programme. MF’s CV and supporting statement were shown at pages 604 to 609. This listed her current role (as acting CEO at R) and previous roles within R and its predecessor organisations including Director of Partnerships and deputy CEO, Director of Operations and Deputy COO, Integration Director and Director of People and Corporate Development and Deputy CEO. It further listed her management programmes including the Kings Fund programme and the NHS Aspiring Executive Directors Programme. In her supporting statement she set out how she felt she met the criteria describing her board level experienced, partnership and collaborative working, leadership and change management, governance and resource management, delivery and strategic development. QZ’s CV was shown at pages 682 to 689 and covering letter at 690-1. It recorded his current role as COO at a large NHS Foundation Trust and prior roles as Deputy COO and Director of Programme Management/Director of Operations at other trusts. QZ also had experience in local government at cabinet level. His application letter focused on his experience of leadership, transformation and building partnerships and his desire to lead and support R in the integrated care system. KD’s application was contained at pages 596-7 (covering letter) and 598-601(CV). It listed her current role as COO and Deputy CEO in a trust in Dorset and briefly set out her previous roles within NHS management briefly mentioning her nursing background and focusing on leadership roles since then. It focused on the leadership and management skills and experience she had developed in current and previous management roles.

35.39 There is no doubt that C’s application was very different in form and length to the other applications. It was the longest by some distance and focused on listing in detail all roles carried out by C, including his medical positions throughout his career, teaching experience and papers and publications. Although it set out management experience from 2015, C acknowledged that much of this was medical management (although felt that was as valuable as any other management). When asked in cross examination whether he had made a miscalculation by including information that was not relevant, C told us he felt that he had done enough to satisfy the first stage. It was also put to C that his application very much focused on wanting the role to build his own influence and create a legacy rather than focusing on the organisation and what he could contribute. C felt that building his influence was leadership and that he had been a leader all his life and had much to be proud of and wanted to get that across. Issue 2.2.1 - Decision not to long list C for CEO post – Direct race and age discrimination complaint

35.40 Once applications were received, GS carried out a review of the applications and provided a Candidate Application Report pages (pages 542-703). This included the full CVs and personal statements of all applicants and a summary of each candidate prepared by GS which categorised them into three groups, Recommended (5 candidates); Marginal (6 candidates) and Not Recommended (2 candidates). The Claimant and QZ were placed in the Marginal group of candidates whilst MF, KD and ME were placed in the Recommended group. The observations on C’s application were set out at page 579. This noted his management responsibilities as CMO at R and its predecessor organisation. The summary included the following comments, “[C]'s CV at 28 pages, and his supporting statement at a further 11 pages, is not easy to digest and analyse. His detailed statement mentions his achievements as a Chief Medical Officer, some of the challenges he has faced, and extensively addresses how he would address some of the current and future challenges. He describes his values-driven leadership style; his commitment to continuous improvement; and his particular interest in organisational development, culture, motivational and compassionate leadership. Whilst he has extensive knowledge and understanding of mental health and has Board level experience, there is a comparative lack of breadth to his broader leadership experience and credentials. His application does not convince that appointment to this role would be a logical career progression although as an internal applicant the panel will want to give further consideration to his application.”

35.41 When asked about this assessment in cross examination, C disagreed that in hindsight it was correct stating that he was proud of his career and did not want to dispose of it. He stated that just because GS did not think that medical leadership was valid, he was not going to apologise for it and did not believe the way he had structured his application should preclude the fact that he felt he had satisfied the criteria for the role. He denied that he was unable to express himself in an accessible way (also with reference by the length of witness statement for this hearing being 219 pages). He stated that he felt if he did not put all the detail down, his voice would not be heard and acknowledged and that all the points of his CV should have been taken on board. He did not accept that his CV did not show a lack of breadth of management experience given that his management was all clinical management and stated that a MD job does not simply focus on clinical leadership but also other factors such as finance, HR and quality. He gave his view that anyone that suggests that clinical leadership is narrow is wrong. C was asked whether he had any reason to impugn the approach of GS in analysing the applications and advising R or suggest that there was any bias involved. C stated that he was surprised that no objective scoring had taken place in relation to adherence to the person specification and no matrix had been used. He suggested that rather than being a difference of opinion about evaluative judgment, he felt that conversations between GS and the NEDs had imported some bias (including race and age discrimination) into the decision-making process carried out by GS. We could not find any evidence to suggest that any such conversations occurred prior to the longlisting process.

35.42 JV spoke to EP at GS on 27 September and was informed that it was usual for the Chair to make the decision for longlisting alone, but he felt that he needed the input of others. On 27 September 2022, JV e mailed RD, SG and JJ, 3 of the NEDs he had asked to assist him in the longlisting process. He stated that he wished to take their “soundings and views unto consideration before agreeing to that critical selection step of cutting into a shortlist” and suggested he send them the GS report and that they meet the following week. C agreed that the group of people chosen were diverse in terms of ethnicity and to an extent, age (2 of the group being British Asian and Black British) and that efforts were made to ensure that this diverse panel scrutinised the decision making. On 3 October 2022 the longlisting panel discussion took place, and the decision was made to interview three of the recommended candidates, MF, KD and ME together with one from the marginal group, QZ. C was not selected for interview.

35.43 JV said that the longlisting group “all felt that [C’s] application failed adequately to address the skills cited in the CEO person specification in a number of areas”, was “overlong” and only superficially addressed some essential criteria in respect of partnership work, strategy and budgets. When asked about this in cross examination, JV stated that C’s experience was very localised and part of his portfolio as CMO, rather than being related to a range of partnership work in different roles. It was also noted that detailed medical activities had been listed and much of his experience was in one organisation. He explained that it was helpful for candidates to have seen how other models of care work outside the organisation. He further explained in cross examination that the range of skills required for those in CEO roles was much wider since the implementation of the Health and Social Care Act 2022 and the focus on ICBs. This required a wider approach focusing on population health management, the eradication of inequalities and value for money which meant that for CEO roles, R was looking for a breadth of inputs not just for someone who had worked in a similar role for a long period of time. When asked how MF’s application better demonstrated her ability to develop strategy than C’s, JV stated that her current role as acting CEO through a pandemic, successful CQC inspection, the fact that she sat on the ICB and had carried out the roles of Partnership director through a successful merger. He also mentioned her secondment outside the organisation as an integration director which was pure strategic development. He accepted that C had been involved in strategy in relation to the merger but focused on the clinical aspects rather than broader operational matters. When asked about managing budgets, and how other candidates demonstrated this better than C given his was one of the biggest in the trust, JV stated that R was a relatively small organisation compared to other local trusts and that, for example KZ was managing a trust with 9000 staff and others had budgets substantially larger. He pointed out that MF’s budget extended beyond the medical staff and included an operational estates budge running 7 hospitals. JV denied that C’s age or race was taken into consideration when deciding not to longlist C and this was not challenged in cross examination.

35.44 SG told the Tribunal that her initial views on reading C’s application was that it did not demonstrate the competencies and experience required by the person specification nor the broad aspects of organisational leadership as it was very focused on the clinical side. She denied that race or age played a part in the decision making (again unchallenged). RD’s written statement to the Tribunal about his role in the process stated that he agreed with GS’s assessment that there was a comparative lack of breadth to his leadership credentials and experience. He also stated that consideration was given to longlisting C just because he was an internal candidate, but that the group concluded that as they had all agreed that C did not meet the person specification, it would not be treating all candidates equally or fairly if he was put forward on the basis of existing knowledge rather than what was included in his application. JJ’s statement to the Tribunal included her comment that she agreed that his application did not demonstrate sufficient evidence of meeting the person specification. All involved in the discussions confirmed that although aware of MF’s age, they did not know how old QZ, KD or ME and were unaware of QZ or ME’s race.

35.45 On 5 October 2022, C received a telephone call from R Stavely (‘RS’) from GS to inform him that he had not been longlisted and his application would not be taken forward beyond the initial stage. C told us that when he asked why and what he could have done to enhance his chances he was told “not much really” but suggested that as he was not dealing with the matter, he should contact EP who was on leave that week. C told us he was surprised not to have received a call from JV or JJ and although disappointed with the decision made, he assumed that very strong applications must have been received from existing CEOs of mental health trusts with which his application could not complete. He felt that there was “no doubt” that he filled the person specification and from his experience, all those who met these criteria would be taken to the next stage. C spoke to EP on 14 October to obtain feedback and alleged that no substantive reason was put forward, save that his CV was too medical and his personal statement too long, which C felt were “stylistic and subjective assessments”. He acknowledged that he was informed that he had not focused enough on outcomes in his application but denied that this was the case. C acknowledged in an e mail sent later (page 785). that there had been a lengthy conversation with EP during which he took notes (but that these were no longer available)

35.46 A Shortlisting Panel was convened to meet via Teams on 18 October 2022, consisting of JV, SG, JJ, EP (of GS) and WF. A unanimous decision was made to shortlist all of the 4 longlisted candidates. Issue

5.4.2 - Alleged PID2 – E mail Complaint about the CEO selection process

35.47 On 31 October 2022 C e mailed AW (page 784). He referred to his application for CEO and not being long listed. He went on to state, “Given my seventeen years experience of senior leadership in mental health, including more than 10 years as a voting Board member in this and predecessor organisations, I did not understand why I not was even afforded the opportunity of an interview. I sought feedback to try and understand why this would be the case but no substantive reason relating to the criteria for the job was put forward by way of explanation. In light of the above I am forced to conclude that there has been unfair practice and/or discrimination in relation to this decision. I am therefore seeking your advice as to how to take this matter forward on an urgent basis.” C acknowledged that this was the first time he had made an allegation of discrimination in his 17 years of employment with R and that whilst he had focused on the length of time in role, it was more to demonstrate his extensive experience, rather than to suggest that he should have been longlisted on a ‘time served’ basis. On a related issue, we heard evidence during the hearing that KKW and GD recalled C stating at an event in 2021 on anti-racism involving Professor J Warmington, that he had never experienced racism. KKW said she recalled this in particular, given that she was a person of colour and could not believe that this was the case given her own lived experiences. C did not recall the particular event or the conversation referred to but absolutely denied that he would have made such a comment, describing it as “preposterous” and that he had experienced racism and racist slurs many times. We accepted what C told us and find that he would not have made such a generalised comment about not experiencing racism. We found KKW’s account compelling though and conclude that there may have been some misunderstanding and speculate that C may have made a comment about lack of racism experienced at work (given his own progression to a very senior level in R), rather than a wider comment about society. This would ring true with the evidence that he had not until the point of the CEO application complained once about race discrimination at work.

35.48 AW responded and suggested that C contacted JV about the reasons for not being shortlisted. She stated that if C felt he had been discriminated against he could raise a grievance and suggested that C took some advice from the BMA. She mentioned that C had options such as lodging an Employment Tribunal claim but hoped that the matter could be resolved through internal processes first (page 786). C accepted in cross examination that this was a broad and generalised allegation, and he did not identify the nature of the discrimination or provide any specific information. He agreed that this was a process about which he felt aggrieved and was specific to his own situation. He accepted that the response of AW and the suggestion to raise a grievance was entirely appropriate and fact that a grievance may be “overkill” as he simply wanted the situation to be reviewed. He responded on 1 November to state that he had received feedback and that he was taking initial advice and would come back to AW. He asked for information on the precise criteria used to long list applications (page 785)

35.49 C was a member of the stakeholder selection panels for the CEO post and on 3 November 2022, he along with others was sent information about this process (page 794) and was informed that the candidate biographies would be sent the day before the sessions. These were subsequently sent to C (shown at pages 789) and he gave evidence to the Tribunal that it was upon reading these that he was very upset and said he “realised that there was something seriously wrong with this process” stating that he felt that “none of the other candidates had anything like his experience as a mental health provider leader or knowledge or expertise in the local health economy”. He described the disparity between himself and the other candidates as “so huge it is beyond debate” and “humiliating”. He went on to state that he believed that all shortlisted candidates were “notably weak” and that either GS had produced a very weak field of candidates or that “weak candidates had been deliberately selected to facilitate the appointment of a chosen candidate”. The Tribunal found this evidence to be insightful as these conclusions reached by C were based on a very brief summary of the applications that had been longlisted. This was the start of the view being formed by C that he could not believe that any of those shortlisted could possibly have been selected ahead of him based on his own opinion of his strengths. Although C contends that it was upon seeing these summaries that he became concerned, he had at this stage already made a generalised allegation of discrimination and unfairness several days earlier (see above).

35.50 C went on to give evidence that having now seen the full applications made, he felt the process was “deliberately manipulated in favour of one candidate”, MF. He further alleged that he had been excluded from the longlist at the first stage as he was known to be such an excellent communicator and would perform well at interview, pointing out that he had “never failed to secure a role that I have interviewed for”. C appears to be rejecting the possibility that any of the candidates could be chosen ahead of him, basing this opinion again on his own subjective view of his own application as against those of others and entirely discounting the possibility that others may have (validly) taken a different view. This was striking at this point and indeed at other points throughout C’s evidence when he consistently refused to accept that a view or opinion that was contrary to his own could be objectively correct. See also paragraphs 35.17, 35.26, 35.27 and 35.41 for further examples.

35.51 On 3 November 2022, C e mailed AW stating that he had been informed that a board member was aware and had told a third party that his application to CEO would be “blocked” by a senior individual involved in the process. C did not say who he was referring to but agreed he was suggesting some form of impropriety in the process (page 880). AW acknowledged the response and confirmed she would be meeting with JV and EP and that JV would take this allegation seriously. She forwarded this to JV who responded by saying he was unsure what C was suggesting and stating that no one on the longlisting panel had any inclination to block anyone (page 879). AW responded to C on 4 November 2022 informing him of who was on the long listing panel and decisions were made on the recommendation of GS against the criteria for the person specification for the role. She asked C to provide more information about the alleged blocking of his application so that it could be investigated (page 883). It does not appear that any further detailed information was provided at this time about the allegation of blocking.

35.52 On 9 November 2022, the Stakeholder panel meetings took place and on 10 November 2022 final interviews were conducted by the Appointment Committee consisting of JV, SG, JJ, WF, MA and Mr D Bywater Regional Director (Midlands), NHS England/Improvement and Dr S Munro CEO Leeds and York Partnership NHS Trust (External Assessor). EP attended as an observer. A Panel Interview Report was produced by GS for the panel in advance of the interviews giving information about the role, suggested interview questions, reports on the candidates etc (pages 814- 78). The unanimous decision of the panel was to select MF for the role and on 11 November 2022, at the Governor Nominations Sub-Committee met and decided to recommend MF be appointed to the AOG. Issue

5.4.3 - Alleged PID3 – E mail Complaint reiterating concerns about the CEO selection process.

35.53 On 13 November 2022, C wrote to AW (page 895) raising concerns about the selection process stating that it did not “involve fair and open competition”. He alleged that he had heard again from a second source that his application “would be blocked”. He alleged that it was difficult to see how those long listed fulfilled criteria better or as well as he did and complained about the feedback received from GS that his CBV was too medical. He further stated: “It’s hard to see how the “Snowy White Peaks” in the NHS are ever going to be reached by non-white applicants when an internal candidate with more leadership experience in senior mental health management and a stronger record of leading services than the other shortlisted candidates cannot even get past the preliminary stage.” C explained in answers to question that this term ‘snowy white peaks’ was a recognised concept in that the engine room of an organisation is non white but the very top of the organisation of executive and chair positions were underrepresented by those who were not white. He acknowledged that at the time he was in fact the highest paid executive in R, being paid significantly more than the CEO but stated that he was still in the engine room and the CEO was the ‘boss’, and he had aspirations to that role.

35.54 C went on to complain that his own experience as part of the stakeholder panel for the CEO exercise had reinforced his view that the process had been biased and discriminatory, complaining about a lack of scoring or ranking from the panel. He stated that this “did not comply with the principles of objectivity and transparency or the Nolan principles”. He went on to allege that the quality and safety of services to patients and staff wellbeing could not be assured if the appointment processes were not based on fairness and merit. He said that he had taken legal advice and asked that all documents be retained and further asked that his e mail be shared with the NEDs and the lead governors stating that R was of great importance to him and felt it was fair that they know the process would be subject to challenge. This was acknowledged by AW on 15 November 2023 (page 902), and she informed C that his letter had been shared with “JV and NEDS” which AW clarified was stating she had shared with the NEDS involved in the CEO longlisting process. It was put to her in cross examination that she misled C into believing all NEDs has been sent C’s e mail to try and stop him circulating to all NEDs which was denied. We did not find that there was anything deliberate or malicious about the way this was handled and find that AW shared with the NEDs she believed were relevant to the issues raised. Issues 3.1.1 and

5.4.4 and Alleged PID4 and PA1- Meeting on 15 November

35.55 On 15 November 2022, C attended a meeting with JV, AG and AW to discuss the concerns raised in his e mail of 13 November 2022. AW took notes of that meeting, and these were shown at pages 908-11. C did not entirely accept the accuracy of the notes but acknowledged that in the absence of any other notes (he did not take any) they were the best contemporary record of the meeting in front of the Tribunal. The notes record that C expressed his belief that he had been discriminated against and felt that racism and subconscious bias had occurred, a belief which C formed having received the biographies of the 4 long listed candidates. He stated that if a white MD had applied, they should have been shortlisted and felt humiliated with the notes recording that this may not have been deliberate, but this is how he felt. He went on to explain his concerns at the process followed by the stakeholder panel he participated in noting that the BAME candidate at this panel, QZ was asked a question that the others were not. C shared his view that he felt QZ was the best candidate and that MF and the other candidate were not good. C went on to repeat his allegation about snowy white peaks. He then raised an issue about an incident that had taken place on 14 November involving DH where C had asked a question about violence and aggression and a summary about what was being done and DH had accused him of being aggressive alleging that he was a “black man who can’t ask a white man a question”. He also accused DH of bullying his deputy, SA who is an Asian woman. C went on to state that he was raising complaints “for himself, all black people and his dad” stating that his father (who had recently passed away) had been a white man but an ally.

35.56 AG, AW and JV acknowledged the points made by C in the meeting and thanked him for raising them and understood that C felt hurt. JV went on to explain the CEO search process, stating that he wanted a wide search including internationally to ensure that a diverse field of candidates applied. He explained that GS were selected because of their experience of executive search work and diverse appointments they had made and that GS were there to support candidates with their applications. He referred to C’s application being “exceptionally long” and was a “medical application and didn’t meet the requirements of a CEO application”. JV stated he had expected C to engage with GS to have supported him in applying. MW is then recorded as saying that his CV reflected his 20 years’ experience and should not be held against him and that “if he took out his medical experience it would be reduced to nothing”. C stated in cross examination that he meant his medical leadership and felt that the notes were not an accurate record, but we find this is what C said during the meeting and find it was a significant and telling comment.

35.57 The discussion then moved on with C expressing his concern that the report recommending the appointment of MF was going to the AOG and wanted his complaint letter to be shared with all the NEDs. C admitted in cross examination that his immediate objective during the meeting was to halt the process of approval with the AOG. JV asked whether C was submitting a grievance as if he was, he did not want the letter to be shared with all NEDs in case a future process would be prejudiced. C then suggested that the approval process should be paused as he had been discriminated against and gaslighted. He is then recorded as saying, “MW is prepared to make it known that he applied for the role and didn’t get shortlisted, MW has a strong relationship with the medics and this will split the organisation”. During his evidence C denied this was said, stating that he would never say such a thing and wanted to keep the matter internal and avoid a grievance. He further stated in his evidence that he was raising concerns about a process that was personal to him stating, “I was raising a personal concern about my treatment”. We find this is what C said, not least because the notes record JV asking C just after this is said, what he meant by this comment. The Tribunal accepted the suggestion that this was a wholly improper thing for C to have said.

35.58 Following on from this meeting, on 16 November AW e mailed her executive colleagues (page 912) informing them that a decision had been made to defer the Governors’ approval process for new CEO. JV also decided that an independent investigation should be commissioned into the recruitment process. AG and NJ, two of the NEDs were tasked with this (as they had not previously been involved in the recruitment process). JV explained that he was concerned when he heard Cs allegation of bias in the process which he felt was sincere and passionate so decided that a thorough review must take place and that C must be interviewed by the investigators and given every chance to make his own case. Review of CEO appointment process November 2022 to January 2023

35.59 Two investigators, RI (an external solicitor) and IC (an independent consultant) carried out this review. The terms of reference for this exercise were shown at pages 934-5 and stated that the purpose was to “ensure that the recruitment to the Chief Executive role has been in line with due process and free of any discrimination, bias or undue influence”. It specifically mentioned investigating whether any discrimination, bias or blocking took place during the long listing. It further would examine the stakeholder panel processes (which C had also complained about). As part of the process, C provided a lengthy written statement (page 970-999) setting out his complaints which also included an appendix prepared by C (setting out why he felt he met the person specification - see page 996-999). This document was reviewed by the Longlisting panel and GS (see e mails at pages 1005-8) at the recommendation of the reviewer who asked them to read the new document and comment on whether anything in there would have altered their decision. JV said he thought that this was a rather odd task as was hypothetical but that the review team felt that “from a legal viewpoint it has some practical merit and might assist” R should any future process or scrutiny be applied. EP provided her comments on the document and whether she felt C’s revised statement met the person specification by e mail on 7 December 2022 (page 1011-2). She concluded that, “the additional information does not change our marginal rating for this candidate”. She went on to explain why C had been rated this way initially, commenting on the extensive amount of documentation being unusual and that a more focused application would be expected to demonstrate effective communication. She concluded that C met some of the selection criteria, but that the ‘evidence’ used to support this was limited and relied heavily on the merger exercise. She stated that the statements and examples he had given did not indicate the breadth required for a CEO appointment in relation to “strategic leadership experience and credentials as an organisational and system leader”. EP also made a comment that she felt that the information later supplied by C about his role in the merger in particular the suggestion that he led it and produced the full business case was not reflected in his CV and that he may have overstated his role in it. JV also told us that he was concerned by this statement, given his knowledge of the transaction, and whilst acknowledging that C had a leadership role, he was one of 2 medical directors and the business case and paperwork was led and managed by the Integration Director at the time and two Strategy directors. The precise role that C played in this merger was clearly in contention. However other than noting the opinions of all as to the extent of C’s contribution, we did not need to determine the precise nature of C’s work to decide these claims, so have not considered it further.

35.60 The NEDs involved in the longlisting panel met and on 12 December 2022, JV prepared a summary of their discussions and circulated it to them (page 1020-1). This noted that whilst the information C provided upon application and beyond showed that C was a proficient senior medical manager, there was not the “width of experience around provision, sectors, commissioning and leadership in different settings” that other candidates had. It acknowledged that examples had been given around the matters listed in the person specification, but that these did not focus on personal inputs or evaluated outcomes. It pointed out that in relation to the issues of “financial acumen, partnership working across a number of agency boundaries, communicating and building relationships, at a national and international level, involving highly complex matters and strategy development” there was limited evidence, if any. SG then further added that C’s professional development shown was focused on psychiatry and senior medical management rather than a breadth of professional development.

35.61 The report produced by the independent review was shown at pages 1024-60. This was detailed and set out the steps taken during the review concluding that there was no discrimination, bias or blocking of applications during the long listing. It further concluded that no bias or external influence was applied in relation to the stakeholder panels. In its conclusion, the following statement was included, “In relation to the longlisting and shortlisting process our conclusion is on the evidence available there was no discrimination, bias or blocking of applications which occurred during the long listing and shortlisting of applications process. The whole process appears to have been thoughtfully and well-constructed, with a significant number of EDI safeguards and checks and balances included. Those supporting the process from the NHS Confed described the whole process as “as about as good as I’ve seen”.

35.62 The authors of the report acknowledged that despite safeguards it could have been possible for all those involved to have conspired to design a flawed, biased and discriminatory process but that the evidence did not support such a contention. It made some recommendations about the future make up and conduct of the stakeholder panel process to ensure that everyone involved understood their role and to ensure feedback was collected and recorded. On 5 January 2023, a meeting was held to present the findings of the review, attended by AG, NJ and C. The full report of the independent review was sent to C by e mail on 6 January 2023 (page 1069). In submissions, C referred us to a number of sections of the IR report suggesting that there were inconsistences in wording suggesting that the independent reviewers had changed the criteria that applied. We were not satisfied that any differences in wording were included deliberately to try and meet challenges raised by C but appeared to us to simply reflect a description of the key aspects of the person specification used by the individual involved in sifting, rather than a direct lift across from the person specification. C also points to wording in this and a later paragraph where the person who conducted the sift is quoted in response to a question as to whether a matrix was used as saying: “The sifts are then reviewed by the lead Consultant before being shared with the client. Whilst he didn’t use a formal sift matrix for this role this was due to the fact that the experience sought was clear and distinct”, and: “There is a slight question as to whether in doing so, Gatenby Sanderson would usually produce (for the client Trust) a matrix showing how each candidate did or did not meet the PS. 101. No such matrix was created or produced in this case and the explanation given is that the material that would otherwise be in a matrix, to show whether a candidate met or didn’t meet the PS criteria, was exactly that which appeared in the Candidate Application Report.” C suggests that this shows that GS usually had a scoring system and points to the lack of this as suspicious and supporting discrimination. We were not even satisfied this is evidence that this was in some way usual practice as the IR talks about this being a question rather than a statement of fact. Issue

5.4.5 Alleged PID 5 - Claimant’s response to external review of CEO appointment process

35.63 On 9 January 2023, C e mailed AW (page 1068) attaching a document dated 8 January 2023. In the bundle before the Tribunal there were two documents shown, firstly a 3-page letter addressed to AW (page 1071—1073) and secondly a 5-page document also addressed to AW (page 1074-1078). The documents were similar and there was some repetition but for the purposes of our deliberations we have focused in the second of those documents shown at pages 1074-8 which seems to be the more complete and this was the document that the representatives referred us to. The first part of the letter addressed the outcome of the independent review and starts by criticising the focus of the report on EDI training and unconscious bias. It then went on to restate C’s complaint that he felt on objective analysis he had more relevant knowledge and experience than those longlisted, complaining about the lack of matrix scoring and the lack of focus on the relative qualities of the comparators in the review carried out. It went on to repeat C’s contention about how his application had met the person specification.

35.64 The second part of the letter (which appeared to be a repeat of the first document referred to above) went on to list a number of concerns that C said he had raised over the past year and increasingly in recent months. These were grouped into a number of headings, namely: Recruitment and retention of nursing staff in particular on inpatients; Morale; Violence and Aggression on the Wards; Closed Culture within the Governance team; Anti Clinical/Anti Medical Culture; Lack of Executive Accountability; and People Management. He concluded by suggesting that R was adopting an “anti medical approach that favours leaders with more corporate backgrounds but with less understanding of service provision” pointing out that evidence suggested that medically led organisations perform better. He pointed out that his view was that his exclusion from the long list for the CEO role was an example “not only of racial bias but of how medical leaders are treated in the NHS”. The Tribunal found this to be an insightful statement of perhaps what was really motivating C’s complaints about the process and that was his view that R should have been led by doctors, rather than corporate managers. AW responded to this letter on 18 January 2023 (page 1067) asking C how he wanted to take matters further. She asked him whether he was now raising a personal grievance about the CEO recruitment process (having previously stated that he did not want to raise a grievance). She attached a copy of R’s grievance policy. She also stated that the number of wider concerns raised by C could fall within the remit of R’s FTSU policy and asked C for further information and examples so that these could be investigated. She informed C that he would be entitled to anonymity if he wished in relation to such matters. C agreed in cross examination that this had been a conspicuously fair approach to raising his concerns.

35.65 A NED briefing took place on 13 January 2023 which C attended, and a discussion took place about an incident that had occurred on a ward which had been recorded on CCTV. Issue

5.4.6 - Alleged PID 6 - E mail to AG re handling of abuse allegation and substandard patient care

35.66 On 16 January 2023 C wrote to AG in advance of a meeting he had arranged with her that day (pages 1090-1093). In that letter he raised the issue of how an allegation of patient abuse on a ward which had been discussed at the NED briefing had been addressed. In particular C complained about the fact he had been told he was not required to attend (when he viewed his presence as essential) and when a request was made to view CCTV footage that a response was given that it was up to the police. He stated that he had already raised a concern about “the seriousness of this failure of care and the potential ramifications in relation to the safety of our services, our reputation and the potential consequences for the Trust.” He went on to state that he was concerned that relatives of the patient had not been informed at the earliest opportunity. Meeting between C, AW and MF on 24 February 2023

35.67 On 8 February 2023, a redacted copy of the letter written by C on 9 January 2023 was sent to MF by AW, also copying C (page 1225). The redacted version removed any reference to the complaints in relation to the CEO process but focused on the other matters addressed by C. MF responded inviting C and AW to a meeting to discuss the concerns and stated that whilst this was being treated as an initial discussion under the ‘raising concerns’ process (previous name for FTSU policy), C could bring a personal or professional representative if he wished (page 1225). AW asked C if he wanted to prioritise any issues for discussion, and C confirmed that he was more focused on issues of leadership culture. That meeting took place on 24 February 2023 by Teams with MF and AW (notes of the meeting taken by AW being shown at pages 1218 to 1222). During that meeting, MF stated that the issues could be investigated externally, and C said he did not belief this was necessary or would help. He raised issues around the recruitment and retention of nursing staff and the impact this had on community transformation and patient care. MF acknowledged this and stated that it was a national issue with 400,000 clinical vacancies. There was some discussion about whether C had raised this in the People Committee, and he said it was discussed but he was reluctant to raise the issues because of his feeling of being “ganged up on” in relation to the DCOO appointment process.

35.68 He said he had concerns about anti medical and anti-clinical practices and went on to raise the issue of the clinical trials room (see below) with MF giving her view that her understanding of this was because there was no capacity within the Estates department to free up. He further raised the issue of SM not being able to get administrative support (see also further discussion on this below). He suggested that other areas were receiving the support they were needed but the medical directorate weren’t (citing an example of PLK recruiting in her team) when MF asked him if it was an “equity issue”. C did not suggest that the lack of support was related to his race, age or the fact of having raised concerns. He further raised the issue of “trying to take the consultants’ offices away from them” stating that this will make staff very unhappy and they will leave and also saying. “I understand that we need to do estate reviews, but I am telling you what the issues are, but people think I am being obstructive and defensive”. MF responded that it was important that there was efficient use of space but that the medical profession had specific guidance in place on rooms and confidentiality. He was again asked whether he wanted his concern formally investigated and stated that he did not as he did not believe it was the answer or would resolve issues. He stated that he did not want to create a rift and suggested some executive development time and external facilitation. When asked whether this happened, MF said it did not at the time but it was on the plan for that year and in fact happened in 2024, but that she did not see the purpose of team development to address specific relationship issues’ finished by thanking C and saying it was a useful discussion and suggested they reflect on the themes and “regroup” after their annual leave. MF agreed that this did not occur mentioning that she was in regular contact with C. When it was put to her that she took no action despite C making it clear that this was required, MF stated that it was unclear what action might have been taken at that point as C did not want a formal investigation and her previous suggestion around involving ACAS had not been taken up. Issues 2.2.2; 3.2.1; and 5.6.1- Community Mental Health Transformation project – delaying and/or reducing funding - Direct race and age discrimination; victimisation and protected disclosure detriment complaints (said to be because of PA1; PID1 and PID4)

35.69 The Community Transformation (‘CT’) project was a NHSE centrally funded project which commenced in April 2021 to address historical decline in mental health community services and to promote innovation. Funding was to be provided over a three-year period. A CT Board which met monthly was set up to implement this which had clinical and operational input and C was the SRO for the CT Program. In July 2022, when R became the Lead Provider, R was required to provide assurance to NHSE on behalf of the ICB that the funding was being used appropriately. At this time R became directly accountable and responsibility for the approval and monitoring of funding for CT and other projects transferred to the Lead Provider Management Executive (‘MEG’). C alleges that delays to the progression of this project and a reduction in funding amounted to detrimental treatment of him personally.

35.70 In relation to delays, C acknowledged that the advancement of the project was held back by the pandemic and the merger, and also workforce challenges across the NHS. There had also been a change of personnel in the project office which C felt was detrimental. He also stated that the financial reporting input to the CT Board was removed in November 2022. C also stated that decision making changed once R became the Lead Provider for mental health which added another tier of scrutiny and decision making. C described being shocked in May 2023 when he was informed that there had been a fundamental change in the CT model by the project management office. C also contended that the CT project was delayed because of a refusal of a business case for more consultant posts and being drawn into discussions about service configurations that he felt did not make sense. C also suggested that delays were caused by a particular doctor who was failing to advance the PCN alignment that was required despite being reminded of this constantly.

35.71 The issue of delay appears to have arisen in September 2022 when JV wrote to C and KKW to identify that a risk recorded had potentially become an issue that had arisen on R’s project risk register due to slippage of timescales (page 718-9). C responded that it should be left as a risk for now as he would challenge his medical managers to push things forward to “get the required grip”. On 23 November 2022, NHSE raised concerns that R had reported that none of its PCNs had been transformed (page 950-1) and suggested that perhaps some of the PCNs had already met the criteria for being transformed. The issue of delay and possible additional funding for clinical capacity to support this also arose in March 2023 in an email exchange involving KKW and clinical leaders to which C was also copied into (page 1233-4). On 17 March 2023, NHSE notified R of its funding allocation for CT for 2023/24 (pages 1254-550) subject to the meeting of various conditions. It noted that significant pace would be required to close the gap in progress on transformation of PCNs.

35.72 In relation to funding, NHS funding allocated to the CT program had been reduced over time with the initial proposed sum of £9.13 million being reduced by £700,000 to £8.4 million (and to £7.68 million by 2025/26). KKW told us it became apparent that C had misunderstood the funding position. On 21 September 2023, C wrote to GD and KKW setting out some concerns about the funding of the project and asking for the ‘release’ of funding to support the CT model he was proposing. KKW responded informing C that the total funding secured for the transformation was £8.4 million. She pointed out that this was less than originally advised by NHSE stating that this was due to “changes made this year at national level to account for inflationary pressures”. She further set out that over the 18-month period from the start of the project the CT Board led by C had approved approximately £6million of spending, leaving £2.38million at that time remaining.

35.73 It was put to C in cross examination that KKW had adequately explained why there had been a reduction in funding and that this allegation stems from C’s lack of appreciation and confusion about the financial arrangements rather than any discriminatory practice. C suggested that a smokescreen had been created and that he was still waiting for an answer to what he felt was a simple question. When asked about the basis for this allegation, C explained that he had ‘heard’ that the money was sent back to NHSE. It was suggested that C really had no idea what took place, and he acknowledged that responsibility for finances had by this point moved away from hm towards other people. He stated that he had every right to be given information when it was asked for but this was not done. Issues 2.2.3; 3.2.2 and 5.6.2 - Comment re ‘failure of Community Transformation Board – May/June 2023 - Direct race and age discrimination; victimisation and protected disclosure detriment complaint (PA1; PID1 and PID4)

35.74 In his witness statement C told the Tribunal that KKW made a comment along the lines that CT had failed during the presentations to gain the funding to the MEG meetings and also used terms to the presenting teams such as “I am not hearing what I need to hear”. C’s witness statement did not specify when this comment about CT having failed is said to have taken place but in cross examination C said it was during a MEG meeting in June 2023. When asked whether he had a note of the conversation, C said he did not because at the time he did not think it was a huge issue to make a note of it. KKW told us that she had no recollection of making such a comment. She agreed that from September 2022 onwards she was concerned that the CT project was behind schedule and that this was accepted by everyone involved in the project. We were unable to find as a fact that a comment that a project had failed was made by KKW given the lack of any real evidence as to when and where the comment was made and the context. We do however refer to our findings above in relation to KKW expressing concerns as to the progress of the project generally. Issues 2.2.4; 3.2.3 and 5.6.3 - Decision not to fund estate refurbishment for a trials room - Direct race and age; victimisation and protected disclosure detriment complaint (PA1, PID1 and PID4)

35.75 We heard much about the trials room and the attempts by C and members of R’s R & I team to have it refurbished in order to conduct some commercial trials. R& I was important to R, and it had a stated long term aim to secure 3-5 commercial research studies per year to boost R’s reputation as a leading research trust. C was lead for R & I and had been involved in securing funding for permanent R&I posts during 2021 and 2022. The particular issued related to a commercial trial that was due to be in place from January 2023. R had been successful in a bid submitted in June 2022 to carry out such trials and had been informed of this in September 2022. In December 2022, the Estates team were informed that a clinical trials facility was required. Some e mails were exchanged on the matter in early January 2023 with initial breakdown of requirements from the Pharmacy team being circulated on 4 January 2023 (see page 1065-6) following the request to the Estates team to provide support. We were shown a copy of an e mail from S Wray from the Estates team sent on 4 January 2023 (page 1064) to members of the R&I team with C on copy stating that, “having discussed this with [GD] this isn’t something that I or my estates colleagues can prioritise at this time”. It went on to state that the team members that had been involved in discussions had been asked to refocus on the capital programme. In her evidence GD explained that at the time the Estates team were working on two big capital programmes with funding of £49 million and that there was no capacity for anyone to assist in the work required to set up the trials room. She explained that it was not necessarily the cost involved that was the issue but the fact that resources from her team would be required to lead on this to ensure that procurement and regulatory requirements were complied with.

35.76 This was understandably a response that the R&I team were disappointed with and we were directed to an e mail from P Chamberlain, with the stated joint title of Head of Financial Planning (albeit that GD disputed he was actually in that role at the time) describing this decision as “an absolute disgrace”. A meeting took place to discuss the decision which GD and C attended along with members of the team. GD told us that she explained the issues to those involved and that R simply could not prioritise this piece of work over other projects at this time. She said she had hoped that work could begin in September of that year when one of the other capital schemes being worked on was completed. SA followed up on the matter again on 2 February 2023 (page 1145) and GD replied with a full response explaining what the issues were (page 1144). She reiterated that the Estates team did not have the capacity to manage a scheme that quarter and she would talk to the team and see what was possible. We were also directed to an e mail exchange involving P Chamberlain and AH where he provides some information on costings and income and AH informs him that he did not think it would be possible to go ahead in that financial year but may be able to do something post April (pages 1120-22). Discussions continued in March and FO e mailed GD on 9 March 2023 asking whether a temporary room could be allocated to the trials on a different site until the permanent R&I unit was in place (page 1235-6). GD said she would explore the option and see if a room was available. This did not ultimately come to fruition.

35.77 In response to cross examination, GD also stated that it had not been possible to allocate this work in the 2023/24 budget for capital works. She explained that every financial year, there were always competing priorities (which we acknowledged must be correct). She explained that R was still working on its dormitory schemes which had not been completed, and the Estates team had still been unable to recruit to fill roles. In response to cross examination questions, GD stated that there were over 50 sites being managed at the time over the Black Country and this could not be prioritised in terms of estates team capacity over the others. The issue was still under discussion in September/October 2023 and we saw an e mail from GD to FO on 5 October 2023 asking some questions about requirements and suggesting that FO made contact with another trust to see how they had dealt with requirements that seemed to be different from usual requirements and how to deal with ongoing revenue costs such as alarms (page 2087). When this was copied to C, he responded expressing his frustration with the process (page 2087-8) and suggested it needed to be raised at Board level and suggesting that JB raise this which she agreed to by tabling a question. It is unclear what then occurred, but GD further stated that as at the date of her written witness statement (19 May 2025) that the work required had been scoped by the Estates team and was progressing.

35.78 It was put to C in cross examination that this issue was operational, and routine and C agreed. He stated that it was the timeliness of the ways things were being responded to and the effect on the R&I team that concerned him. Issues 2.2.5;3.2.4 and 5.6.4 - Refusal of request for additional resource for the medical Directorate Direct race and age discrimination, victimisation and protected disclosure detriment complaint (PA1, PID1, PID4)

35.79 R’s medical directorate supports medical HR and functional issues and was led by SM, who had been the MDM at DWMHPT prior to the merger. Some of the functions of the medical directorate at the other trust BCPFT had fallen within the remit of HR prior to the merger, but following the merger, responsibility was taken by SM’s team. C contended that it was clear from the outset that the existing resource would need to be increased post-merger, but the properly scoped needs only became clear as R emerged from the pandemic. A proposal which included additional resources was prepared and submitted apparently to the CMT in October 2022 with costings of between £262,000 -329, 000. Queries were being raised by AH and others in February about what exactly was required and had been approved (see page 1123-6). On 8 February 2023, SM submitted a revised paper in two parts, the first dealing with additional support she said was needed for the directorate now and the second part dealing with a phase 2 part relating to medical secretaries (page 108 SB). AW had some involvement suggesting that two papers were produced for the two parts as the first phase would need support first. She recommended that the actual cost impact had to be included for this to be approved referring to a cost pressure (page 107). An effective corporate and non-clinical vacancy freeze had been in place in practice from February 2023 which meant that additional investment in administrative posts was not permitted. A full-blown recruitment freeze on all non-clinical roles was implemented by NHS England from June 2023 onwards (page 2668-2674).

35.80 C raised the difficulties in approving this proposal for resourcing at his meeting with MF and AW on 24 February 2023 (see above). On 10 March 2023, SM submitted her paper again and asked for it to be put on the CMT agenda for 21 March 2023 (pages 1237-1249). On 6 April, MF and GD met with C and during this meeting suggested that an experienced medical workforce manager be provided for a period with C stating that he would discuss with SA and come back to them.

35.81 On 26 April 2023, SM sent this paper to JV after meeting him at an away day stating that the paper had been approved but that funding needed to be found to move it forward. JV responded that MF had confirmed her support for the paper “subject to the finance being carefully identified” and acknowledged that SM was a “potential single point of failure” whose contribution could not be easily replicated (page 123-4 SB). On 19 May 2024 SA e mailed GD chasing and stating that no extra support had been received on job plans (page 1337). GD mentioned that a meeting had been arranged for the following week to find a solution with SA then stating that support on job plans was an “immediate need” (page 1337). GD referred to the suggestion made by her and MF to C on 6 April stating that they had not heard back about this (page 1336). C then sent a response suggesting that the “money would be better in my view supporting [SM] which we have requested for a very long time to the point that she is often extremely stretched” (page 1334). SA further chased the position following the cancellation of an arranged meeting on 12 June 2023 (pages 191-3).

35.82 The matter was discussed at CMT on 3 August 2023, and a proposal was made by GD and followed up in an e mail from DP that capacity to support the medical administration be provided by other functions to absorb some back-office functions (page 1551-6). She told us that this was done because there were items in the paper currently done by the medical directorate that could have been picked up by central corporate functions for example recruitment and it made sense for this existing team to try and support SM with some of the functions performed. She also explained that R would have expected the need for additional administrative support to have been picked up at the earlier planning stage and that when this request came in part way through the financial year, it had to be put under scrutiny and see if there was a different way of providing the support more effectively and to bring subject matter experts already in R for example on recruitment in to deliver the same outcome. We accepted the evidence of GD that decisions on funding of this nature were not hers to make alone but were matters for the CMT or the Executive management team. She further explained that R had a duty to manage its resources, and it was a difficult time involving the making of difficult choices to try and limit overspending and to live within R’s budget. The issue of funding was not resolved in October 2023 and further e mails were exchanged around the subject (pages 2340-7) involving C, SA and other medical colleagues trying to find a solution. C’s belief was that this was not resolved until he had been removed from his management role. Issues 2.2.6; 3.2.6 and 5.6.5 – Undermining C’s RO role by standing down Dignity at Work (‘DAW’) complaint against a doctor without reference to him June 2023 - Direct race and age discrimination; victimisation and protected disclosure detriment complaint (PA1, PID4) – now withdrawn.

35.83 The circumstances behind this matter are complex. A DAW complaint had been made by a middle grade doctor in the same clinical team as C against his clinical director. This Tribunal is not concerned with the facts of this complaint, but some issues had arisen around the way this was addressed and on 4 January 2023, EB sent an e mail to C and AW suggesting a way forward. She referred to a meeting that had been held which was difficult and proposed that the original complaint be reinvestigated by a new investigator using the original material from the initial investigation but conducting additional interviews etc as they deemed necessary (page 1086-7). AW e mailed on 5 January indicating her support for this process (page 1086). On 10 January 2023, C replied also indicating he was in agreement with the proposal in principle stating that he had been at a distance from this and asked whether the disputes relating to the initial investigations were about the findings or the process (page 1084). EB responded suggesting that the issue was about process and perceived bias. She informed C and AW that she had the support of the BMA to this proposal and suggested that a meeting take place with SA. She stated that she was yet to determine who would pick up the investigation (page 1083-4). C responded stating that he supported this way forward (page 1083). As C confirmed in written submissions that his complaints about this issue were withdrawn, the Tribunal has not considered this further, save to make the above findings in case the matter is relevant to any of the other issues in dispute. Issue 3.2.5 – CFO putting forward recommendations in Estates Strategy paper – victimisation complaint (PA1)

35.84 In May 2023, GD presented an estates strategy paper to the Board which included amongst other matters, some principles which she believed would support better utilisation and more flexible use of office space within R (page 1258-1306). She explained that there had been some discussion about this at a previous meeting in March at which C was not present (although SA attended on behalf of C). She explained that the strategy would be that no employee would be allocated an office for their single use but would be able to book offices in advance. The proposal did not apply to medical consultation rooms but office space for administrative work. The principles were designed to be a starting point for discussion rather than a plan for immediate change. C expressed his opposition to the strategy with GD. When asked about this matter in cross examination, MF stated that she understood that a review was carried to understand whether R was getting the best value from its estates. This had indicated that some of the clinical office space was being utilised only 20-25% of the time, so it appeared obvious that this was something that needed to be looked at. She stated that R had already moved towards being more flexible with the use of technology, like all NHS institutions but there was no intention to limit the ability to access confidential space to comply with the guidelines in place for clinical staff. MF said that she understood that C objected to this and that he expressed that he was concerned as to how this would be perceived by consultants who felt R was taking their offices away from them. She stated that plans to remove consultant offices had not been fully implemented but there was a recognition that where there were new builds and refurbishments that it had been acknowledged that there was insufficient space for every medic to have their own office and there had been arrangements for office sharing implemented. MF felt that there had been no failure to comply with any guidance from the colleges of physicians throughout the process. July 2023 meeting of the Delivery Board

35.85 On 19 July 2023 C attended a meeting of R’s Delivery Board along with a number of senior managers including MF, GD and SA. The events of this meeting are hugely contentious between the parties, and we refer to the discussions and applications above as to what note the Tribunal should take of such events and findings it should make. This Tribunal was clear that it was not the events of the meeting itself we had to make findings of fact upon, but how R addressed and responded to the complaints that arose after this meeting. We determined that it was neither necessary nor appropriate for us to make significant findings of fact about the events of the meeting itself. However the parties agreed that we should view the recording made on the Microsoft Teams platform of the meeting, in particular the discussion that took place from approximately 1 hour and 42 minutes in until the meeting concluded. We were also directed to read the Microsoft Teams produced transcript of the meeting (pages 1385- 1496). We make the following findings of fact which set out in very factual terms the parts of the DB meeting that appeared to be the basis for all the e mails that followed. This is done purely so that the matter can be put in context, rather than to form the basis of any conclusions about the appropriateness or otherwise or any particular individual’s behaviour or comments at that meeting:35.85.1 Following an update from DP about the Harmonisation project, SA raised a question about what the purpose of harmonisation was and whether it had changed, stating that she did not want to be duplicating work and making it more complicated. She made a comment about “changing the goal posts” and that harmonisation had a different purpose when it started and there was a different understanding of it.

35.85.2 MF then stated that if a detailed discussion about the function of the harmonisation board was needed it might need to be taken offline.

35.85.3 GD then entered the discussion and stated that she was ‘disappointed’ that this discussion was happening as there had been no change to what was happening around harmonisation. She stated that if issues came up during harmonisation, they needed to be identified and flagged, may not sit with the harmonisation project to be resolved, but could not be ignored. She made the point again referencing issues about ‘accessing Rio’ and another matter, stating that it was important to look at everything even though some things needed a lighter touch than others, stating it was good if issues were exposed.

35.85.4 There was then a point where SA, MF and GD tried to speak at once. SA said: “I mean its it’s a good thing and none of us have to be disappointed. Its just needs clarity. There is no need to be disappointed. Its good to get clarity” MF stated that she would agree and then asked GD to comment who stated: “I’m disappointed if you don’t understand what harmonisation is, that was my point” SA then said: “No, it's it's not about me and understanding it's about how the divisions are explaining things. It's it's not about me or you, [GD], it's it's about clarifying things so that everybody's on the same page. We don't have to be disappointed about it if it is, if it is a phase of how we are doing it, let's let's take it you know but but but we need to be very clear and not duplicate because if you if you let's discuss about this in harmonisation board instead of having those discussions here.

35.85.5 GD stated that she thought they were and SA stated that there had to be room for discussion, rather than just “putting it under the carpet”. MF started to say something about agreement and then GD stated that she did not think that was what was happening, stating: “I don't think we're doing anything that's a bit unfair to say we're putting things under the carpet. I think we're doing the opposite.” MF started to say something again and then SA added: “I don't know why why you are making those comments. I'm I'm. I'm putting a honest comment here as a clinical lead of this organisation, how it feels and if you if you want to take the approach of being disappointed and not wanting to look at it, I accept that and I won't say much about it, which is fine.” GD responded: “That's not what I said at all.”

35.85.6 MF then made some comments about there not being room to have detailed discussions at the delivery board meeting and expressed a view that she did not think that GD had talked about putting things “under the carpet”. She stated that it was about having the right level of discussion in the right place and that if issues were found when there was “lifting up stones” in organisations, that the issue had to be acknowledged. C and DP tried to say something and there was a conversation about who would contribute next with MF noting that C’s hand was up first and C saying that he wanted to come in to “back up” SA and DP agreed stating he could respond to C as he had a different perspective as lead for the programme area.

35.85.7 C then came in and said he wanted to talk about “the cultural issue of expressing disappointment at people’s questions” He stated that if he was teaching and students asked questions which he said he was disappointed in then questions would not be asked. He used an example of the way MF asked questions by prefacing them by saying something like, this might seem a stupid question, which he stated was a smart way of doing it to which MF said that some of her questions were stupid. C then said: “But I, but we do have to say that if we are in an open culture and there is no such thing as a wrong question. And people shouldn't be disappointed if people ask questions with well meaning to get an answer. Because saying you're disappointed can be perceived as being closed down, whether whether or not you know we it was a silly question. We're allowing silly questions if we're an open culture ….”. He went on to say that he thought the point being made by SA was that there was overlap between what was being raised at harmonisation and what was being raised at the division giving an example of something coming up about on call over which C questioned why the divisional MD, CD and DVMD weren’t picking up as business as usual. He stated that it should not be coming from harmonisation, which was not a criticism of the programme but when it came to him and SA he stated that this should be happening at the division. He further stated: “the watch word is synergies and working together and stuff that the harmonisation programme is doing, connecting with stuff that's happening at divisional level and business as usual and that way none of us will be disappointed.

35.85.8 During this time when C was speaking, GD turned her camera off. DP then joined the discussion and raised issue about it being important for issues to be raised at harmonisation as he did not believe they were being addressed elsewhere and that matters were being escalated because C and SA were very busy and may not have thought of things. He went on to state that he would “share disappointment” and that this was not targeted at SA or anyone else but his disappointment was that he sat in programme board every month which was not well attended, stating: “It's disappointing to get to this level and the scope of the programme be questioned because we have really good conversations at that level. I threw out a challenge last week at CMT in a different context to a different pool of people, some of which are on this call, that we can't get into a culture of challenging scope and. And querying what's going on when we're not making ourselves available to have the conversations in the right forum” He went on to make a point about having the right conversation in the right forum suggesting that matters should be raised in other forums set up for the correct purpose and said it was “disappointing”. There was a further exchange between SA and DP with SA stating: “Yeah, I mean, let's not be disappointed because there is no point because it's it's stressful time for all of us” DP then suggested that they needed to deliver and SA stating that they were hundreds of things going on and that discovering and having and open debate and challenging was important as no one could do this alone so honesty was important, saying, “So let's be very honest about it. It's fine for us to, you know, disagree challenge. But let's not be disappointed because this is the reality.”

35.85.9 SA then stated that she had to express some of the concerns raised to her making the point that if a matter had been raised in an executive committee or harmonisation, that the divisional leads were telling her that it was not their responsibility to sort out because it had been escalated stating that they had to be mindful of accountabilities. She mentioned that the work required went back to divisions and she had been challenged by CDs that as it went to harmonisation board, that SA had to do the work. She then stated that this was “creating more disharmony” where there was already tension. MF acknowledged the points made as helpful and stated that it was not the function of this board to resolve the issues she was raising now.

35.85.10 C then said he wanted to make a point stating it was important to be constructive stating: “the issue about disappointment is disappointment when questions are asked because that is not a good way of proceeding. We should be free to ask any question without risking disappointment or offence as long as we ask the question in good faith and politely disappointment about the progress of projects. Now that's a different thing, cause we're all disappointed about things that are still inconsistent.” He further added that he was disappointed every week when he chaired meetings that were not quorate, then saying: “we work on those disappointments to ease those disappointment. It's the culture of having a question and being disappointed in a question.” He went on to point out that what had been raised was not about whether the harmonisation project was right in identifying issues which he said it was but that this had led to some people in the division absolving themselves of responsibility to do something if it had been raised in harmonisation. He stated that the harmonisation project was important but did not want it to lead to people in the division saying issues were not their job. He stated that he was not criticising harmonisation but pointing out that there was a need for accountability of those doing things. He then stated, “I think the disappointment thing is, is, is we don't want that in misinterpreted. It was about culture and asking questions and being confident to ask those questions.” MF then summarised the points made about harmonisation and accountability and the discussion moved on. MF stated after some further discussion: “I think that's been. Quite a challenging discussion, hasn't it, particularly for the past half an hour. I think. We need to make sure that we are not. Developing such a A closed set of arrangements that we can't have honest discussions together. This is safe space amongst senior colleagues and should be seen as that.” And, further, “But, if one of the chairs of a key programme board, as in [GD], expresses disappointment that the scope of that programme board is being questioned at the level above, then I think I think we need to take that on board. So I think we just need to take that comment in the way that I believe it was intended.” Issue

5.4.7 - Alleged PID 7 - C’s complaint re closed culture 19 July 2023

35.86 On 19 July 2023, C e mailed MF (page 1513 and 2137), stating that he wanted to flag something up which “may seem rather trivial” about his concerns around issues that arose in a meeting he attended yesterday and today in the DB that MF chaired. He described a situation at LP MEC where two colleagues expressed frustration that presentations about getting funding for projects had not been approved. He made the point that their proposals had been subject to undue scrutiny and setting requirements that were difficult to fulfil and that if funding was not approved, they were facing criticism about failing to advance the project and underspending. He stated that the responses from a senior colleague was that the discussion had to take place outside that meeting and another executive colleague stated that the language used was not appropriate. He stated that he had observed some frustration but that what was said was not “uncivil” or needed reprimand. He stated he was concern not about the lack of approval as such but the response to the challenge. He went on to state, “Today you were witness to a question being described as disappointing and also the reaction to that comment in which I felt I needed to intervene. My concern is that we could be observing some signs of a closed culture in which genuine feelings of frustration and disappointment cant be expressed or are shut down and those raising genuine questions such as that raised today to clarify the role of the harmonisation board and those responsible for action within the division may be feeling as if they are being discouraged or shut down. We have mentioned concerns about culture and morale previously and these are hugely important to any success we hope to lead as a team and I think we should work as a team to address this and hopefully maintain our aspiration of an open and just culture. There are no perfect exponents of this approach of course but I think if we are seeing any perhaps soft signs of something we could usefully address then we should try to do so. Thank you for your understanding and careful stewardship of what became a tense discussion at times today.” C explained in evidence he was expressing his concerns that had underpinned his contribution that day, namely that the organisation was developing a closed culture, mentioning no names as he wanted R’s response to the issue to be constructive and team based. When it was put to him that he was not raising a breach of a legal obligation or matters of patient safety, but was more an issue of the functionality of the organisation, he agreed. He also accepted that his concern related to the organisation not the wider NHS but that it was a wider issue, as patient safety could be impacted if there was a closed culture (albeit this was not mentioned). MF admitted that C was hoping for some action to be taken, stating that C mentioned that the team needed to “work on” improving things. MF stated that she had read that as saying that he wants the issues he raised to inform the overall team development approach, rather than he wants something specific to be done in relation to the meeting.

35.87 MF sent an e mail to C on 24 July 2023 thanking C for his message and stating that she would be in touch again in due course (page 1512). C replied the same day (page 1512) stating that he, “didn’t want to make a particular issue out of this but to just raise it with you which might help us to define how we proceed in our approach as a leadership team – also I could see that Dr A was unhappy with the exchange”. When asked in cross examination whether he was raising a formal complaint, he stated that he was lodging an awareness that he felt the culture was going in the wrong direction. He stated that he had hoped she would take action as CEO and do something, although not formal action. Complaint of SA on 19 July 2023

35.88 On 19 July 2023 at 5:03 pm, SA sent an e mail to MF (page 1508), copying C. It started by thanking MF for her support as chair of the DB meeting. She stated that she acknowledged that DB was in its early stages and there would be teething problems but felt that her question had not been answered and had raised this after getting feedback from divisional leads and wanted to get clarity. She stated that this matter could be put aside for now, going on to say, “For an executive to comment that a question by Deputy CMO who Is also the clinical lead for harmonisation is disappointing, in front of all in the meeting is demeaning and I have never seen or heard this kind of disrespect of a senior doctor by an executive member. I have felt undermined, disrespected and this kind of exchange in meetings does not sit right with our values. We have no issue with exploring issues but how we treat each other is very important. Last time when you, [AW and C] met me I have explained the importance of clinical leadership and clinical voice. I have also shared my experience of the challenges we are facing into. I am not keen to take this any further but it is very important you both know how I felt.” This was acknowledged by MF on 24 July 2023 who stated that she would be in touch again in due course (page 1507).

35.89 On 19 July 2023, at 10:40 pm, MF received an e mail headed ‘Delivery Board Reflections’ (page 1718-1721). The identity of the sender and the contents of the e mail are now redacted for these proceedings, so we describe this as ‘Complaint 1’ and ‘Complainant 1’)).

35.90 On 20 July 2023 at 8:45 am, MF received an e mail from JP headed ‘Raising Concerns’ (pages 1538-40) which is now described as Complaint 2. This forwarded an e mail trail (which has been redacted for these proceedings) and stated that JP had had to provide assurances to the SI team following an RCA meeting that occurred last week. He described a situation where a particular case was being discussed and when the matter was opened to the floor for comments, that C and two doctors named in the e mail (redacted for these proceedings) led to 90 minutes of “arguing” about the case. He said he felt “hugely uncomfortable by the behaviours” of C and another named but redacted individual, going on to state that it was not the first time that he or colleagues had experienced these behaviours. He stated that the SI team felt “under attack by the behaviours of our medical colleagues” and that he had reassured the team that “the values displayed are not those of the wider executive team, your leadership or the trust in general”. He went on to state that he had “experienced bullying and unpleasant behaviour” from C, and another named but redacted individual over 3 years, stating that questions had been raised about his capability, the performance of his team and the competence of his business function. He stated that this was the first time in 21 years that he had, “had colleagues drive a vendetta” against him, which as MF was aware, had significant impact on his mental health and wellbeing and those of senior leads in governance.

35.91 He went on to state that the reason that he raised the above and had publicly stated in CMT that he had been the subject of bullying is that he was, “shocked and disgusted by the behaviours shown by [C] and [redacted] during the Delivery board yesterday”. He went on to state, “The behaviours from [C] and [redacted] yesterday amounted to bullying, harassment and gas lighting of our CFO, to the point at which she had to turn her camera off, largely I expect due to the distress caused. I felt very uncomfortable and queried whether to step in and support [GD]. Sadly, my own experience of [C] and [redacted] meant that I felt unable to, in fear of the consequences and retribution towards my teams and I. It is to my regret that I didn’t say something, and perhaps that’s part of the reason I am now. We have spent three years suffering the emotionally immature, emotionally unregulated and corrosive behaviours of our senior medics, and it is now having a significant impact on many dedicated, and committed staff throughout the trust. [GD] is one such member of our executive team and is highly respected by all of the colleagues I am fortunate to work with, and myself also. Far too often, we have to tolerate behaviours (and by doing so be potentially seen to condone) such as yesterday, last week’s RCA meeting and there are too many other instances to quote where either [C] and [redacted] have made damaging, ill-founded and combustive statements, usually in a passive aggressive fashion, only to retract it when called out. Sadly by the time they do, the damage is usually done.” He went on to state that he had significant concerns about the future of R, his colleagues and the wider culture, if these issues were not raised and medical leaders held to account. He also stated that he felt from discussions with them that the “medical leadership, function and culture” was also becoming the focus of the regulators. He referenced concerns raised during a recent inspection and colleagues raising matters with the regulators during focus groups, requesting sensitivity about how these were handled, due to concerns about “reprisals and retribution from our CMO and [redacted]”.He stated that he would be happy to discuss the matters further and asked that these be “managed in confidence”.

35.92 On 20 July 2023 at 3:17 pm, MF received an e mail from LMcG headed ‘Delivery Board – Complaint’ (pages 1505-1506) which is now described as Complaint 3. In that e mail she stated that what she had witnessed during the DB meeting had left her shocked and had since felt uncomfortable with the situation that unfolded and her lack of action, stating: “I wish to express how wholly unacceptable I found behaviours of the Chief Medical Officer (CMO) and [redacted] to be during the meeting. The said exhibited behaviours in my opinion were tantamount to verbal bullying and harassment towards the Trust Chief Financial Officer. These behaviours were counter-opposite to the Trust values which I endeavour myself to both embody and uphold as I know you also do. My impression in terms of how the situation transpired began with the use of the word 'disappointed' by the CFO which was subsequently misinterpreted and the context in which it was originally used, contorted and twisted by [redacted]. The CMO then joined this challenge, again taking the comment out of its original position in order to substantiate the challenge. Whilst the CFO attempted to challenge and put her point across, it was not heard and the two colleagues continued with escalating and labouring the challenge even when the CFO withdrew from the conversation as a defence. The CFO turned their camera off in order to protect themselves from this relentless attack. In my opinion the CFO was being targeted.” She stated that the incident was witnessed by colleagues and referred to “negative emotions” of those. She went on to state, “In terms of additional evidence of unprofessional behaviours from the same colleagues, I have two very recent experiences this week of obstructive behaviour”, citing a meeting on 18 July 2023 where non-attendance by the CMO and [redacted] at a board led to non-quoracy, with the other example (presumably) being redacted. She stated that she did not feel proud to sit in the executive team and felt that medical leads were treated with reverence or exception and are not held accountable for actions in the same way that non-medical colleagues were. She stated that she felt this had led to the “development and escalation of a pattern of unacceptable behaviour” which was demonstrated and normalised and that there was a “real risk of closed and toxic cultures developing”. She concluded that she was prepared to speak further or provide evidence in another format if it assisted addressing the matter.

35.93 C was asked in cross examination to agree that the e mails set out above merited a significant and serious response, viewed on their facts. He stated that although he had no idea what these e mails contained until December 2024, “a response was required” although it is the nature of the response he was questioning. When pushed to agree that the fact that several e mails had been received from different sources, suggested this was not an isolated matter, C reiterated that he knew nothing of the nature of the concerns until December 2024. He referred to his understanding as of 2 August 2023 that there had been a combination of complaints including those made by C and SA and that he was being told complaints were serious and complex but did not know what the complaints were or who made them. When further asked about the cluster of complaints beings serious, he accepted that a serious response was required but in his view that involved him being part of the discussion. He suggested that a meeting could have been sorted out with some “sensible leadership”. Deputy CEO application

35.94 On 24 July 2023 C submitted an expression of Interest for Deputy CEO post and MF responded the same day thanking him and stating that she would be in touch as soon as timelines and next steps had been discussed (page 1510). C’s application form was shown at pages 1517- 1521. By an e mail sent on 8 August 2023, C was invited to attend an interview in respect of his application to be held on 16 August 2023 (page 1587). Issue

5.4.8 - Alleged PID 8 – concerns raised by C at Board Meeting on 26 July 2023 re impact on very vulnerable patients of a proposal to close the Gerry Simon clinic.

35.95 On 26 July 2023 a Public Trust Board Meeting was held attended by C and a number of R’s executive and NED team, including JV, MF, GD and AW. The minutes of that meeting were shown at pages 1522-33, with much of the content being redacted for the purposes of these proceedings. At page 1525-1529 a discussion is recorded about the Gerry Simon clinic (a low secure unit for those with learning disabilities and behavioural challenges) and its sustainability. A recommendation was made that a proposal to close the clinic and its impact should be considered. A number of questions and points were raised by RD, JJ and AG (who raised the importance of ensuring the workforce were considered and had clear communication). C raised a number of points which he stated he felt would need clarity before moving forward, asking questions around where patients would go, making the point that no safety concerns had been reported and that although the environment was ‘tired’, it had useful aspects. He is noted as stating that ‘powerful voices’ had been lost in the Learning Disabilities division, and their views had to be considered. SV stated that collaborative discussions were ongoing, and the discussion moved on to provider issues around beds and finance. The minutes record that the Board resolved to approve the recommendation that the proposal to close the clinic and its impact should be considered.

35.96 When it was put to C in cross examination that this was an operational discussion to which he was contributing, C said he was challenging a decision on the basis that voices in the division did not agree and staff were upset about the proposal. He suggested, when it was put to him that he was not raising patient safety issues, that he felt he was advocating for the most vulnerable patients as closure was not necessarily in the patients’ best interests. He stated he was demanding assurances before it could be agreed to, and he wanted to ensure that patients were cared for. We did not accept C’s contribution went as far as now suggested during the meeting and find that C was asking questions and making points about the proposals rather than ‘demanding’ any assurances.

35.97 On 27 July AS sent an e mail to MF (copying KKW) with the heading ‘Delivery Board Escalation from PMO’ (page 1669-70). It stated that it wanted to feedback thoughts feelings and experiences from the PMO team and “done with colleagues from across the team as a collective, acknowledging the recurring nature of the behaviours from colleagues and the impact its having on us as a group”. It stated: “At the Delivery Board meeting last week, a number of us were on the call when the "disappointing" comment was made and the argument followed. The first point we'd wish to highlight here would be around the conduct of Dr [redacted] and [C], taking an aggressive approach to a comment that wasn't intended to offend, just to display how someone felt. We don't think that dismissing and then critiquing someone's feelings is in line with the values of the organisation and contradicts efforts made by the Trust to have open and honest dialogue at all levels. There was a distinct lack of empathy shown and such behaviours may cause less senior members of staff to not speak up and challenge if that's how the Director of Finance is treated.” It went on to complain about this being an attempt to deflect and distract from important areas and non-delivery. He stated that such behaviours had been seen in other groups and that to have their purpose challenged demoralised the team and slowed progress. He went on to cite examples of the Strategy Development Steering Group where he felt repetitive challenges were made and C (the RO) was indecisive, leading to little progress. He further gave example of the Community Services steering group led by C revisiting decisions made, not showing leadership and having a dismissive attitude. Response of MF to Complaints 1 to 4

35.98 Having received these 4 complaints, MF sought advice from AW as to how to handle and respond. AW was asked about this advice during cross examination in particular why she did not suggest using the DAW policy, as it too could be used to raise complaints about issues relating to another person. She explained that the DAW policy did tend to be used by one individual complaining about another, albeit collective complaints can also be made. Her view was that because there were 4 separate complaints and some referenced behaviour not only on this occasion but in other forums, that the FTSU was the most appropriate. Her view was that the FTSU was not punitive but was to be used to establish the facts for the complainants and C. She also said that as 3 of the 4 complaints had been raised confidentially, this led her to believe that the FTSU policy was the best policy to use. We accepted this evidence.

35.99 MF considered that she could not deal with the complaints informally “due to the serious nature of the concerns raised” about a member of R’s executive board. She decided that the concerns would need to be investigated under the FTSU policy, citing 6 reasons, namely:

(1) at least one person had asked for their concerns to be managed in confidence;

(2) at least one person had mentioned fear of retribution;

(3) multiple concerns had been received in a short time frame;

(4) the nature of the concerns;

(5) because the concerns were raised by junior colleagues against the CMO;

(6) the concerns were about behaviour witnessed towards someone else rather than an individual complaint. She further added that the FTSU policy offered the greatest flexibility as it could accommodate both situations where complainants were happy to have their names on record or wished to remain confidential, unlike the Grievance Policy which required complainants to go on record. When it was put to MF in cross examination that none of the complainants in Complaints 1-4 had asked for any specific action to be taken, she acknowledged that this was the case but stated that they were raising “pretty serious concerns” about one of the most senior people in the organisation and their deputy. It was suggested that the normal way this would have been dealt with was to have individual meetings with each person to find out how they wanted to take it forward. MF answered that she had never been faced with a situation like this before and she did not want to delve into any fact finding at that stage. When asked about the way C’s earlier e mail had been addressed when compared to Complaints 1-4, she stated that Complaints 1-4 were concerns about individual behaviour and conduct but that C’s concerns were not the same but were about his observations on culture. When asked to explain why she did not ask the complainants if they wanted a formal investigation before deciding to institute one, she said that 3 of the 4 people had stated they wanted to remain confidential and were fearful of retribution and she felt that the FTSU investigation offered the best framework for considering the matters further. We accepted MF’s account of what was considered when making this decision.

35.100 On 2 August 2024 MF sent an e mail individually to each of Complainant 1, LMcG, JP and AS in similar terms (pages 1536-1541). The e mails thanked them for raising concerns, informed them that several concerns had been raised about the same subject matter and that she had decided to commission an external investigation under the FTSU policy. She said that she was in the process of appointing an investigator and putting in place Terms of Reference (‘TOR’) and would update them once details were confirmed.

35.101 On the same date, 2 August and shortly after sending these e mails, MF sent an e mail to C (page 2138). This email attached a copy of the FTSU policy. It started by referring to her earlier e mail acknowledging the concerns that C had raised on 19 July (see above) going on to state, “whilst I don’t believe you are requesting that I take any action in respect of your concerns, I would be grateful if you could please confirm the same so I am clear on this. Separately, I am writing to inform you that I have received a number of concerns following the Delivery Board on 19th July 2023. These concerns relate specifically to the behaviours of yourself [redacted], both at the meeting and more generally. I have written separately to [redacted] on this matter. I have determined that these matters require investigation under the Trust’s Freedom to Speak Up Policy (a copy of which is attached) and I will shortly be appointing an external investigator to carry this out. I will update you further once an appointment has been made and will share with you the details of the investigator who will be in contact with you to discuss the issues.” It concluded by stating that if there was anything that C wished to discuss with MF or AW, including any support requirements, that he should contact MF.

35.102 MF was asked during cross examination about why further detail was not provided in this e mail, and why there was only a vague reference to C’s behaviours. MF stated that she felt that it was appropriate to inform C about the general theme of the concerns being raised. She said that as she was still in the process of ascertaining from the complainants what they wanted to share, that she was “between a rock and a hard place”, although acknowledged that at the time C was written to, this process of contacting the complainants about the manner of the investigation had not yet started. C was asked in cross examination whether in terms of what he knew now that MF was entitled to conclude that the concerns were serious in nature and needed to be properly addressed. He stated that he was not clear about the seriousness of the concerns but accepted that in terms of the concerns being raised in the 3 complaints, the CEO could not ignore and had to take forward.

35.103 MF sent an e mail to the executive directors (excluding C) on the same date updating them as to the position, then forwarding this to JV and JJ (page 1549-50). It did not refer to C by name but stated that it related to a member of the executive team. During cross examination, MF was referred to the NGO supplementary information document referred to at paragraph [35.6] above and asked whether the guidance stated there that it would be expected that the non-executive FTSU lead to take the lead in relation to investigating issues raised about board members was considered. MF stated that she did not follow what was written in the document and did not inform the FTSU NED, AG at this time. MF believed that AG was on holiday, but she did become aware of the investigation and that AG never raised with MF that she should take the lead in the investigation. MF was further asked about the suggestion that the NED FTSU lead had taken the lead in determining whether sufficient attempts had been made to resolve a speaking up concern involving a board member. MF admitted that R did not follow the letter of this guidance but said that she considered whether there was an informal way of resolving the matters but decided that it was not appropriate for the range of reasons already given. It was also put to MF that it was inappropriate and a breach of FTSU policy to have informed all of C’s executive colleagues in this manner, including identifying that it was at the DB that these issues had arisen. MF stated that it was normal for information to be shared with executive colleagues in confidence as it affected the running of the organisation and it was important that they broadly knew what was happening.

35.104 On 4 August 2023, MF received an e mail headed ‘Whistleblowers confidential letter to CEO’ (page 1575-6). The identity of the sender had been redacted as had the contents of the e mail. MF told us that this e mail raised further serious concerns by 3 people about C’s behaviour and had similar themes to the other complaints such as bullying and abuse of position. On 10 August 2023 MF replied that it was her understanding that the complainants were prepared to discuss their concerns with an independent investigator but did not want their identities to be shared with C (page 1629]. On 11 August 2023 a reply was sent confirming that the individuals were happy to engage and discuss their concerns with the independent investigator but that they did not want their identities to be shared with C, SA and/or any other doctors (page 1636).

35.105 On 7 August 2023, C responded to MF’s e mail to him of 2 August about the commencing of a FTSU investigation (pages 1579-82). He described the contents of MF’s e mail “extraordinary” and made a number of points. Firstly that as MF was at the DB meeting, if there had been any issues of concern, MF would have raised them with C. He then stated that having viewed the recording of the DB meeting, that his and SA’s contributions were “brief, polite and constructive”. He complained about the accusation around his behaviour more generally being vague with no details of time frame. He pointed out that she had never raised concerns to him about this as his line manager. The e mail then went on to complain that the decision to commission an investigation under FTSU had been taken without reference to him. He pointed that out that the FTSU policy did not mention external investigations and quoted sections about issues being resolved informally in most cases, pointing out that informal resolution had not happened. He contended that this informal resolution was a safeguard for the person who is the subject of a report. He went on to stated that he was disturbed that the FTSU investigation was being commenced following his own challenges made at a turnaround meeting relating to library services and a clinical vacancy freeze and in relation to the Gerry Simon clinic closure at executive board. He also referenced his own e mail raising concerns about a closed culture sent to MF on 19 July 2023. He suggested that the proximity of such matters led him to conclude he was being victimised. He went on to point out that he had an open-door policy and had never been the subject of a complaint from staff or patient. He then went on to make an allegation that the FTSU investigation had been started to “impugn” him in the context of an HR investigation into other individuals. He concluded by stating that he was hurt and undermined about accusations coming out of the blue and had never known any employee to be treated this way in his entire career. He said he was seeking legal advice and would revert in due course.

35.106 MF replied to C’s e mail of 6 August on 10 August 2023 (page 2142). This e mail stated that MF had always intended to meet with C once she had clarified with the complainants the basis upon which the information was shared. She said she did not know this yet and so had no further detail to share but would do this once this was available and when an investigator was appointed. She addressed the points C made in his e mail. With regard to informal resolution, MF explained that this should always be considered but that the policy anticipates this is not appropriate in every case. She said she had decided an investigation was necessary given the complexity of issues, the nature and number of separate concerns, and because they involved R’s senior leadership team. She stated that she did not feel these issues could be dealt with informally and without investigation and given the seniority of those involved, which limits the pool of who can conduct an internal investigation, an external investigator had to be found. MF stated that she felt this external investigation could ensure impartiality and provide assurance to those raising concerns and those to whom concerns had been raised. She stated that she had been unable to provide detailed information because of the need to find out the basis upon which concerns had been raised and referenced the West Sussex review being critical of a trust who had shared details of an individual’s complaint without seeking their consent. She went on to state that she could not agree that the decision to investigate was linked to concerns C raised about a closed culture, pointing out that this had arisen from concerns received from others which she could not ignore. She stated that she was sorry that he felt hurt and undermined and stated that careful consideration had been given about how to handle the matter and advice had been taken. She said that as well as safeguarding the complainants, an external investigation being undertaken fulfilled her duty of care towards C. She stated that C could contact her or AW if he had further queries or to discuss support.

35.107 MF e mailed the individual complainants involved in Complaints 1-4 on 9 August 2023 (pages 1593, 1608, 1611-1618) in similar terms informing them that she had decided to commission an external investigation under R’s FTSU policy. She asked them to confirm the basis upon which their concerns had been shared with her before their details were shared with the investigator. She pointed out that concerns could be raised openly, confidentially or anonymously. She further asked whether the complainant would be happy for the concerns to be shared with C along with their identity. She pointed out that this was the decision of the complainant and if the individual wanted to remain anonymous or confidential, the investigator would be informed. She also added in at least two of the e mails: “It is important to note that raising concerns confidentially or anonymously can impact the ability of an investigator to fully explore and reach a conclusion on the facts and therefore, for the Trust to take any action if inappropriate behaviour or conduct is identified.” It was put to AW in cross examination that the inclusion of this sentence indicated that R was always going to take disciplinary action against C, but AW denied this, stating that it was simply to inform complainants that anonymous complaints could limit the outcome. When the same point was put to MF, she told us that under the FTSU policy, R could not have moved straight to disciplinary action directly as a result of investigations. The fact finding done from the investigation may have led to considering whether any steps should be taken under any other policy such as the disciplinary policy, but that never occurred. We accepted this explanation as correct. AS responded on 14 August 2023 (page 1668) stating he was happy to be named and wanted to be the lead contact on behalf of the group of people he raised concerns on behalf of. LMcG replied on 26 August 2023 stating that she wished to remain confidential for now but may reconsider this if raising a concern openly would add weight to the investigation (page 1684). JP replied on 17 August 2023 saying he was prepared to discuss concerns with the investigator, but needed to have a discussion with them first before agreeing for his identity and details of complaint to be shared with C. On 22 August 2023, Complainant 1 e mailed to confirm that their concerns could be shared with the investigator, and possibly their identity of required. It mentioned retaliatory behaviour being experienced in the past and asked for R to protect them as an employee (page 1716). Issue 4.1.3 – CFO e mail suggesting a former MD assist R with OOH support which was part of C’s responsibilities – Race/age related harassment complaint.

35.108 On 8 August 2023 GD e mailed MF, CM, SVG, C, and DH stating that she had spoken to an individual at NHSE about the work being done around harmonisation (page 1588). She stated that when she said they were about to look at medical support OOH, he offered support from his team and mentioned an experienced psychiatrist and former MD who had a national role with them. GD stated that R would need to be really clear on the input they wanted, but that it sounded like a useful resource to work with. She finished by saying if the team were in support she would ask her contact for an introduction to his team take it forward. Several of the recipients responded expressing their support, CM on 8 August 2023 e mailed to said it was a good opportunity and would be useful to review OOH from a national perspective (page 1588). He added LMcG to the chain, and asked for comments from C, DH, SG and LMcG from a clinical perspective. SG and DH responded on 8 and 9 August 2023 respectively and expressed the view that they were in support of this (page 1590-1). C responded to GD’s e mail on 11 August 2023 (page 1645-6) stating that medical OOH arrangements were the responsibility of the medical management team and medical directorate; that they were well versed about arrangements having spent so long during the last months of ongoing industrial action (his team having been justifiably commended) and that medical OOH arrangements were being reviewed by the clinically led multidisciplinary transformational work. He added: “If my team feels that any of this work would benefit from external assistance we will seek it.”

35.109 CM responded to this email and asked C to confirm whether he was now not supporting a review of OOH, as CM believed that this had been agreed to. He stated that this was unrelated to the exceptional strike action but rather BAH OOH working. He asked for a discussion at the forthcoming executive comms meeting (page 1645). C replied stating that as he had said, the proposal had to be agreed with the broader divisional and medical management teams and that he and SA had already raised issues about this. It said the situation was complex and required local knowledge and any new ways of working would need negotiation with the BMA/JLNC. He suggested an engaged piece of work needed to be led by the local medical management before anything was agreed about the value of any external review (page 1644). Conversation between JV and C on 10 August 2023

35.110 We heard slightly differing accounts of this conversation which took place at the conclusion of a meeting attended by C, SA, JV, FO and other external participants relating to research strategy. C said he approached JV at the conclusion of the meeting for his input and advice on his recently application for DCEO (referring back to the earlier CEO application and the fact that he had not done this and had been unsuccessful). He said that as soon as it was mentioned that JV “recoiled and looked daggers” at C and looked very uncomfortable, telling C it had nothing to do with him. C then made a comment about it being a good thing to have clinical leaders at the top of an organisation and JV stated that there were clinicians on the Board and looked annoyed. JV’s account of this meeting was that towards its end, C asked to speak with him privately. JV said he was hoping to finish speaking with the other Trust chairs, but that C was insistent they had to urgently speak. JV said he believed C needed to share some urgent medical information and so they moved to an adjacent private room when C asked him “Why are you not sitting on the interview panel arranged by the CEO to appoint a deputy CEO?”. JV said he was stunned at this question as he was not involved and considered this an improper personal fishing question about a confidential recruitment process, and not of any urgency to take him away from a strategic discussion with other Trust leaders and so ended the conversation immediately. We find that C approached JV and asked him for a private discussion and asked the question as JV recalls it. We were satisfied that JV was irritated by what he saw as an interruption and also that C was asking him about a process, he was not involved in. We find that JV did respond abruptly to C and reacted as C recalls. Issues 2.2.7; 3.2.7 and 5.6.6– Pausing C’s application for the DCEO role – Alleged direct race/age discrimination; victimisation and protected disclosure detriment (PA1, PID1, PID4, PID7 and PID8)

35.111 On 10 August 2023 MF notified C by e mail that Deputy CEO interviews scheduled for 16 and 25 August had been postponed (page 1634) explaining that this was given where R was with the emerging investigation process. She stated that she understood it was a difficult time for C and did not want him to be under further pressure to prepare and perform. She also confirmed that she had let the other individuals know that the interviews would be rescheduled for a later date. She also informed that she was planning to postpone his PDC (appraisal discussion) to spare him from having to prepare the paperwork. She offered C the opportunity to use that slot to have a 121 catch up.

35.112 C e mailed MF again on 13 August 2023 complaining about the decision to start a FTSU investigation (page 1656-59). This made additional points of objection stating that he believed MF should have met with him first before deciding how to proceed suggesting this would have been done if the situation had arisen with any other member of the management team. He added that a further breach of FTSU had occurred as the identity of the independent investigator had to be someone who all parties agreed on. He further suggested that the matter should have been addressed via the grievance procedure. He made allegations towards the end of the e mail that he felt he and SA were being treated less favourably because of their protected characteristics. He expressed a loss of confidence in the process and asked that the matter be escalated to a NED urgently. Issue 3.12 and

5.4.9 - Alleged and PA2 and PID 9- Claimant’s 1st DAW complaint 17 August 2023

35.113 On 17 August 2023 C sent a written DAW complaint by e mail to AW at 7:36pm against MF and GD (pages 1689 and 1701-9). The complaint against MF was about the decision to persist with the external FTSU investigation despite his challenges and requests for escalation to the NEDs. He contended that this was a deliberate attempt to discredit him and to carry out the process when the appropriate NED was on leave. He suggested that the FTSU policy was being used to strip him of employment rights. He complained that the FTSU policy was being disregarded and suggested that it was not credible that in 2 weeks there had been independently and spontaneously numerous complaints which could not be raised informally. He complained about not knowing what the concerns against him related to which was causing distress and was abusive. He referenced SA being bullied and harassed and going off sick during a time of particular stress and pressure and complained about the denial of administrative support for the medical directorate which had led to SM going off sick with stress. He alleged that the FTSU process was being used maliciously and vexatiously by senior managers to impugn his reputation and in response to challenges he had made about a closed culture and concerns raised about the closure of the Gerry Simon clinic.

35.114 C then complained about the failure of MF to take action in response to him raising concerns about cultural issues and bullying and that GD could not tolerate challenge. He also complained about being set up to fail in relation to the CT project complaining about difficulties in getting funds released; lack of funding for the medical directorate and other roles; the failure to provide a trials room and denial of estates support; and the targeting of job plans for consultants by the FD. He then moved to complain about delaying appraisals and sign off. He went on to complain about the interventions in formal disciplinary processes against two doctors undermining him. His final complaint related to the failure to intervene in the DCOO process which he alleged did not follow process. He contrasted the way this complaint was dealt with by a suggestion of informal mediation to what was now being done in relation to him. He also alleged that MF did not take this further. When challenged in cross examination that it was in fact him who had indicated he did not want to mediate, C suggested that he had wanted team building and MF did not follow this up. He concluded by saying that the above matters suggested that MF was systematically and over time “eroding his dignity and respect”. When asked about this in cross examination, C suggested that MF was the “hub of” and was engineering the complaints against him (having reached this conclusion on the fact he had never before received any complaints). He alleged the above examples were less favourable treatment of him, in part related to his race and age. He said he did not believe that a white medical director of his standing would have been treated as he was. He further added that he did not have confidence in AW to handle the matters in an impartial and robust manner as she had been involved and “had a hand in” some of the matters complained of.

35.115 The complaint against GD related to the comments she made at DB on 19 July 2023 in the discussion with SA, namely, “I am disappointed we are having this discussion” and “I am disappointed if you don’t understand what harmonisation is” which he said shut SA down and were insulting. He then complained about the e mail exchange involving GD and others on 8 August 2023 around the offer of external input on OOH issues (see paragraphs 35.99 to 35.100 above). He described the e mail as “denigrating and humiliating “and was tantamount to questioning the ability of C and SA to do their job. He said that there was a suggestion that a retired MD could do C’s job better than him, and the description of that person as an “experienced psychiatrist” suggested that he was not. He said that other executives were then invited to “vote” on his competence in open forum and that MF failed to intervene, and CM then backed up GD and demanded an answer. He said that the disrespect shown to him was “astonishing” and went on to state that GD persistently shook her head when he was talking. GD complaint against C and SA

35.116 On 17 August 2023, GD e mailed MG and JV at 10:19 pm with a complaint about the behaviour of C (and SA) in two recent meetings which she said had caused distress and anxiety. She set out her account of the DB meeting on 19 July 2023 stating that in the later part of the meeting she was “subject to a verbal attack and bullying” from SA and C. She described this as a “sustained attack” and that she had to switch her camera off as she was crying and unable to speak. She referred to the repetition of certain words again and again and being accused of “putting things under the carpet” and discouraging challenge. She stated that she had never been subject to such a targeted attack in her career and left her shaking. She stated that several colleagues had contacted her after the meeting to check on her wellbeing. She further added: “The episode left me scared to be in another meeting with either [SA] or [C], and worried about any email I sent or anything I said in a meeting in case it was deliberately misused or misinterpreted and used to attack and undermine me.” She then set out her account of a public trust board meeting on 26 July 2023, stating that when she provided input to a challenge from C on a point raised, that C “began another verbal attack”, was looking directly at her and was angry and aggressive. She stated that she felt intimidated, bullied and threatened by his posture and targeting and had to leave the room as she was shaken and upset. She stated that she had taken some time to write this and felt vulnerable and the situation and behaviour was making it impossible for her to properly carry out her role.

35.117 C made detailed submissions about the timing of these two e mails from C and then from GD, suggesting that GD must have been informed about the complaint C made against her which led to her making a complaint against him (which C submitted was deliberately exaggerated). In support of this contention it is pointed out that GD gave evidence that she was informed of the complaint C made against her on 23 August 2023 by an e mail from AW, but that this e mail had not been disclosed. It is suggested that there was no reason for such a delay in making a complaint from an incident on 19 July and that GD was untruthful when stating that the timing of these two complaints both coming on the same day was a coincidence. It is further submitted that this followed a pattern in relation to timing of complaints following the DB meeting on 19 July with C and SA complaining first and then complaints following later that evening against them. The Tribunal is not prepared to make findings of fact of the nature suggested and find that what is submitted on behalf of C is little more than speculation. More significantly, in relation to the timing of these e mails, and whether GD knew of C’s DAW complaint before making her own, nothing that this Tribunal has to determine in the issues before particularly turns that. Therefore it is not appropriate, proportionate or in the interests of justice to consider this line or argument further. Response to C DAW complaint

35.118 On 22 August, AW e mailed to acknowledge C’s DAW complaint (page 1714). She stated that his concern had been escalated to JV who would need to consider whether to appoint a NED to take forward as well as to commission external HR support. She also referred to the e mail C had written to MF on 13 August which had not been responded to and stated that she had asked MF to pause in responding given the nature of the DAW complaint. She then asked for C’s views as to whether he was able to be continued to be line managed by MF, citing potential risks of victimisation or detrimental treatment of him or of further allegations being made against MF, and if not whether he had any alternative suggestions. C replied on 24 August 2023 (page 1736) thanking AW for passing to JV, raising concerns about the FTSU investigation and asking for an urgent response to his earlier letter. He went on to ask questions about the FTSU investigation and listing his complaints with it. He further asked for confirmation that no further action would be taken under the FTSU policy until he and SA had been given the opportunity to address them informally. He complained of the effect this was having and that he had cancelled his holiday plans. Issues 2.2.22; 2.2.23; 3.2.22; 3.2.23; 5.6.21; 5.6.22 – Appointment of SG as commissioning manager for C’s DAW complaint and to manage the complaints against C – Direct race/age discrimination; victimisation and protected disclosure detriment (PA1; PA2; PA3; PID 2; PID 3; PID 4; PID 5)

35.119 AW e mailed C on 30 August 2023 (page 1735) to advise him that an external HR consultancy had been appointed to carry out the “Raising Concerns” (another way of describing the FTSU policy) investigation and that a TOR had been drafted. She said this had been paused given the DAW complaint. She told C JV had appointed SG to be commissioning manager to review his DAW complaint and commission an independent investigation. JV explained in his evidence (which we accepted) that his decision to appoint SG as the designated NED was due to her availability to carry out the role (during a holiday period when many of the NEDs were away) and the fact that she chaired the People committee and so had experience. He also said that the Chair and Vice Chair would not normally be selected at this stage, in case they were needed later in any process. He also said that his instinct would be not to appoint the SID (AG) to such a role either, as it may be that she needed to be the “wise owl” at a later stage so did not want to “play her in too early”. SG agreed this was the first time she had acted as a commissioning manager for either a FTSU or DAW investigation at R but had done this at another organisation in relation to similar whistleblowing policies and a complaint of sexual harassment. SG was asked by JV to act as commissioning manager probably in a telephone conversation and although no notes were taken, she recalled JV explained that he, role was to provide oversight, this was not an operational role in terms of actually undertaking the investigation, but ensuring that there were regular updates on progress and liaising with the various parties to ensure that there was progress and sufficient pace. When it was put to SG that she was in charge of the investigation, she reiterated that she had oversight of the investigation but would not be undertaking the investigation. In terms of decision making, she told us that her role was to decide on the next steps which would depend on the outcome of the investigation and the application of the relevant policy. We accepted this evidence as an accurate description of the role SG was being asked to do and did not accept the suggestion by C’s representative that C did not understand what her role was.

35.120 AW explained to C that an external HR consultant had been appointed to support SG through this, given C’s views about his lack of confidence in her. AW further informed C that SG had been appointed by JV to review the concerns previously submitted to the CEO regarding him and SA and because of this it was not appropriate for either MF or her to respond to his letter dated 13 August 2023. She encouraged C to still use the BMA support, despite his concerns about conflict of interests, suggesting that the BMA should have internal processes for ensuring conflicts of interest were managed.

35.121 C responded to that e mail the same day (page 1741) questioning why his complaints about the FTSU investigation process had not been escalated to AG (as NED FTSU lead). He stated that he did not understand why JV had appointed SG when he had asked for the matter to be passed to AG and that SG was “one of the least experienced non-executives who is being mentored by the Chair”. On the issue of whether SG was JV’s mentee, she gave evidence that she was not a mentee, and JV gave evidence that he had not mentored her. He explained that he was line manager for all NEDs (including SG) and conducted their appraisals. He also told the Tribunal that he was undertaking an internal coaching programme along with 70 others in R which required him to practice coaching skills. He said he did this with his fellow NEDs including SG but that this was not a mentoring relationship. When this was put to C in cross examination, he acknowledged that had no evidence to refute what was being said about this issue but that this was not the only objection to SG. For the avoidance of doubt, we find that SG was not JV’s mentee.

35.122 C stated that he had a right to have the matter escalated to AG and asked that this be done that same day or he would do this himself. He complained about not receiving detail about the allegations and in respect of the DAW complaint, he alleged victimisation and race discrimination and that SG had a conflict of interest because of her participation in the longlisting for CEO which he had challenged. He further alleged that there was a connection between this CEO process and the current DCEO process which had been paused. He stated that SG was conflicted out of both the FTSU investigation and the DAW complaint. Issues 2.2.24; 3.2.24; 4.1.1; 5.6.23 – The Chair persisting in appointing SG in matters relating to C’s employment despite C’s representations of impartiality and conflict of interest – Direct race/age discrimination; victimisation; race/age related harassment and protected disclosure detriment (PA1; PA2; PA3; PID 2; PID 3; PID 4; PID 5)

35.123 C also e mailed JV on 30 August 2023 (page 1744) and stated that his DAW complaint had been escalated to him. He complained that having raising concerns six weeks ago about a closed culture in meetings, he and SA had received a letter regarding concerns being raised about their behaviour leading to an investigation. He complained that they had not been consulted about the investigation, and no information had been supplied about the complaints or who they came from. He alleged this was “intolerable and abusive behaviour” and was less favourable treatment. He then pointed out that JV had made no attempt to speak with him or SA to establish wellbeing. JV forwarded this to AW and SG and asked for a form of words and guidance on the response (page 1739). JV replied the same day to say he had received the concerns and as communicated by AW had appointed SG to address the matters with external HR support. He said she would be in touch shortly, acknowledged that it was a difficult time for C and that separate external support services confidential to him had been arranged and for C to contact him to access this (page 1743).

35.124 There were a number of e mails sent on 31 August 2023, as follows:35.124.1 AW e mailed C at 6:54 am (page 1753) stating that she had informed AG about the complaints made against C on 21 August 2023 in accordance with normal process for FTSU concerns involving a Board member. She said she had waited for AG to return from her 2 weeks leave before doing this. She informed C that she had given a high-level overview to AG but not shared specific complaints or documents as AG was not overseeing the investigation. She further stated that the CEO recruitment process had been investigated by external consultants and that C’s concerns were not substantiated. She stated that JV had been informed of C’s objection to SG, and he agreed with AW that there was no conflict of interest and given her experience of chairing the EDI and People committee, she had the knowledge and experience to deal with the matters. She stated that SG would have independent HR support and that the two matters would be investigated by two separate external consultants.

35.124.2 SG e mailed C at 11:25 am (page 1753) confirming to C that she had been appointed as commissioning manager for investigations into your complaint under DAW and the “Raising Concerns” investigation. She said she was taking time to review the information and would be in touch and ensured C it was a priority. She offered external support and told C to contact AW to access it.

35.124.3 C e mailed SG at 3:47 pm (page 1754) stating that he complained in his DAW complaint that the decision to start an investigation without discussing with him or informing him of the issues was “unfair, unreasonable, discriminatory and therefore unlawful”. He accused SG of adopting this unlawful and discriminatory conduct by referring to the FTSU investigation as if it were a “fait accompli” rather than something in dispute. He repeated the allegation that commencing the investigation breached FTSU policies and this had been ignored, suggesting that she either did not understand or had disregarded it. He suggested that she could not be impartial in commissioning an investigation into FTSU concerns when she was making a judgment about a key issue in the DAW complaint. He said he did not need external support but that the matters had to be dealt with lawfully and without discrimination and in accordance with policy. SG explained in her evidence that she understood that C was complaining that there had been breaches of the FTSU policy, not about the investigation itself at this stage and stated that she reached the conclusion that she did not believe the policy had been breached, in light of HR and legal advice. She stated that she did not believe there was any conflict in continuing in her role as commissioning manager in particular as her role was not to undertake the investigation itself. She stated that it was fundamental to her role as NED to remain impartial and did not believe this is compromised by being involved in various processes.

35.124.4 C’s solicitors, Rees Page, sent a letter by e mail confirming that they had been instructed and making objections to what had been done so far and the appointment of SG, in particular when C had requested that his DAW complaint be referred to AG. They reiterated the view of C that SG was not sufficiently independent to oversee the DAW complaint and the FTSU matter. It made the point that the person investigating FTSU issues had to be someone “with whom all parties can agree” and stated that C did not accept the validity of an investigation before he had been informed with full particulars what the concerns were and be able to make representations about them. The letter suggested that the grievance policy should be used. A comment was made that just because an independent investigation had been carried out into the CEO process, this did not prevent what was happening to C amounting to victimisation. It further noted: “Our client's position remains that given that he cannot conceive of any circumstances which would give rise to a genuine complaint about him, this raises very substantial suspicions that the current process is an act of victimisation.” It concluded by requiring R to stand down SG in respect of both processes and referred to NED agreed by C and that no further steps be taken in the FTSU investigation until particulars of the concerns had been provided.

35.124.5 C sent a lengthy letter to AG attaching two written statements about the two individuals he believed were behind the FTSU concerns, alleging that these had been raised maliciously and that MF was aware of this. He went on to allege that he was being blocked in advancement because he was “not one of them” referring to the CEO and DCEO applications. It suggested that CM was appointed to acting DCEO despite MF wanting DH in the role, because MF was “mindful of a race complaint”. He alleged that being informed on 2 August 2023 of concerns was done to interfere with the DCEO process. He complained of not being consulted in advance of the decision to investigate and of having no details of the concerns. He accused MF of conducting a ‘witch hunt’ against him and looking for concerns throughout August but had failed to come up with anything. He accused the two individuals he provided statements about of trying to bring him down by use of the FTSU process. He alleged that all of this was race discrimination and victimisation because of his earlier challenge of the CEO process. He alleged that if NHS managers were “allowed to behave towards clinical staff” in this manner, “doctors and nurses would be silenced” and the NHS would be turned into a “mini-Maoist dystopia controlled by corporates”. He made referenced to the Letby situation alleging that MF’s actions were the opposite of an open, transparent and safe culture. It was put to C that to compare his situation to what occurred in the Letby situation was disgraceful he said it was a reference to doctors who felt that the complaints process was being weaponised The Tribunal acknowledged that this was perhaps an inappropriate comparison for C to have made. Further complaints and e mails from C

35.125 On 1 September 2023, C and SA wrote a joint letter to JV (page 1773- 5) complaining that the FTSU policy was not being complied with stating this did not allow for external investigations and the first stage required consent to be sought from complainants about the basis upon which information could be shared (alleging this had not been done). The letter further questioned why senior individuals were using the FTSU policy to raise concerns instead of other process, why consent had not been provided for the sharing of information and why SA and C were being treated less favourably than other members of the leadership team. It alleged the concerns were raised maliciously and said that R had a duty to protect the RO from being “bullied upwards” by those fearful of consequences of his decisions. It complained of the failure to grant the request to escalate the matter to the NED FTSU lead. It set out the objections to the appointment of SG suggesting that she was inexperienced, had not read the documents; had prejudged the objections to the FTSU investigation and was conflicted out mentioning potential victimisation. The letter again made reference to Letby stating that if clinical staff could be placed under external investigation without warning and without saying why, it had serious implications for the NHS.

35.126 On 4 September 2023, C wrote to AG informing her that he wished to raise concerns under the FTSU policy (page 1786-7). He alleged that the e mails he had received from MF on 2 and 10 August were contradictory and had challenged the process by letters on 6 and 13 August with the later letter being unanswered. He mentioned asking for the matter to be escalated to AG as NED FTSU lead on 13, 17 and 24 August and this being denied. He alleged that SG was conflicted out and alleged he had been subject to detriment related to his DCEO application. He alleged that the concerns raised were malicious, vexatious and an attempt to bully him and damage his reputation. He alleged discrimination and victimisation. The letter said it attached a document, headed Ftsup breaches which was described as listing some of the ways in which the process had been breached. This attachment was at pages 2163-4. Browne Jacobson letter

35.127 On 6 September 2023, R’s representatives, Browne Jacobson, responded to the letter from C’s representatives of 31 August 2023 (page 1790-5). It stated that it was referring to this letter but also other e mails from C and the letter of 1 September 2023 to JV (which it stated was copied to AG). It asked for confirmation as to whether concerns should be responded to directly to C or to Rees Page, to avoid a lack of response or duplication. It denied that C had no alternative but to raise a DAW complaint, given the management of the FTSU process, pointing out that he was free to do so and his DAW complaint addressed matters predating the FTSU process itself. It denied that the FTSU process was not transparent, stating that there was a need for confidentiality and sensitivity where individuals sought anonymity as is their right under R’s FTSU and the national NHSE policy. It stated that R was complying with R’s FTSU Policy, the NHSE model policy, the Code of Governance for Trust Boards 2022 and “the plethora of best practice guidance” from the NGO. It went on to say R had a duty of care to individuals raising concerns under FTSU , which meant that R had decided that the complainants would meet the external investigator individually and confidentially first to discuss concerns and to ensure consent was received before concerns were notified to the subjects of the complaints. It said that whether or not concerns were raised by others under FTSU, or the grievance policy was not a decision for C to impose. It stated that any further premature requests for information or suggestions that individuals should make complaints under other policies would be resisted until all necessary steps had been taken.

35.128 In relation to C’s request that his complaints be escalated to AG, it stated that AW had discussed C’s DAW complaints, as well as the concerns raised by others against C with AG on 21 August 2023 on her return from leave and with JV on 22 August. It stated that “based on a balance of Trust priorities, resources and the experience of the NEDs” JV considered SG to be appropriate to assist. It stated that AG would provide oversight and support in her capacity as NED lead for FTSU. It also went on to state that SG was not there to “review” the DAW complaint and FTSU concerns but was “facilitating a process to commission an external independent HR consultant” to investigate. It pointed out that SG being on a panel for C’s application for CEO did not prevent her from carrying out either of these roles. It denied any victimisation, pointing out that AG commissioned and oversaw the review into the CEO process and states that there is a clear reason for the investigatory process being concerns raised which shows there is no connection to any earlier protected act. The letter suggested that C had misunderstood the FTSU policy in relation to his contention that the identity of the investigator had to be agreed. It contended that this provision applied only where an internal investigator was being appointed. It suggested that it was up to C whether he co-operated with the investigation when it began, but if he did not, the investigation would continue. It responded to the 3 questions raised in his 1 September letter, stating that it was up to the individual complainants and not C whether they complained under the FTSU policy or some other policy; that the complainants had given consent to share information with the investigator and the investigator would discuss the matter with them to ascertain the basis on which they were complaining, before detail was shared; and it denied differential treatment. It set out next steps being that SG would consider the matters on her return from leave and C would be invited to meetings initially with SG and then with the external investigator of his DAW complaint and (if SG considers an investigation is required) the external investigator of the concerns raised (in advance of which sufficient information would be provided to C to allow him to respond to these). Rees Page response

35.129 A detailed response was provided to the above letter by Rees Page on 8 September 2023 (page 1797-1806). It alleged that bullying behaviour against C had escalated in the weeks prior to the FTSU investigation being announced. It alleged that the complainants under FTSU appeared to have sought confidentiality rather than anonymity (as they were not anonymous to R). It pointed out that C should not have been told of concerns until consent had been given by complainants suggesting this was psychological abuse. It disputed the interpretation of the FTSU policy in a number of ways and accused that the objections of C to an external investigation had not been heard. It suggested that C had a “right to make representations in respect of which Trust policies are appropriate to deal with issues raised against him”. It suggested that the protection for employees contained in HR processes was not included in the FTSU policy. It then included a section challenging the information in relation to the role of SG suggesting there were contradictions, and it was now unclear just what she had been instructed to do. Later the letter also suggested she lacked experience. It referred to the NHS NGO guidance on FTSU (summarised at paragraph 35.6 above), stating that C had the “right” for AG to determine how the FTSU matter proceeds, not SG. It went on to set out in detail why C felt SG was conflicted and not impartial and set out detailed objections to the appointment of external investigators (and the exclusion of C from input in determining who these should be).

35.130 It went on to suggest that R was not considering its duty to protect C. It suggested that AG should be leading the process and suggested that the FTSU policy was being “weaponised” against C and SA, who were senior doctors. It went on to demand a number of next steps be taken. Firstly that SG should play no further part in either the DAW complaint or the FTSU matter. Secondly that AG should take over the FTSU matter and begin this again. Thirdly the DAW complaint be passed to another NED who was not conflicted due to an involvement in the CEO process. It suggested all decisions made to date in relation to FTSU were void and it must be started again and dealt with lawfully. It went on to complain about JV ignoring his complaints and proceeding with decisions without representations from C. It went on to accuse JV of abusing his position in order to victimise C for his earlier protected act and removing his opportunity to become DCEO. Response to GD’s DAW complaint

35.131 On 18 August 2023, JV e mailed GD to acknowledge her complaint (page 1712) and stated that he would arrange a response through GD’s line manager, MF. He also added “I am very sorry that you have experienced these issues and I hope that we can prevent anything similar again”. It was put to GD that JV appeared to be accepting her account of what had happened, but she responded that she could not comment. This was not put to JV during cross examination. On 11 September 2023, AW e mailed GD (page 1811) to inform her that “due to some complexities” SG would be reviewing her complaint and would be in touch to discuss how she wished to take it forward. It informed GD that R was treating her complaint under R’s DAW policy (which was attached). It asked GD to confirm whether she was happy for her complaint to be brought in an “open” capacity, explaining that this meant C and SA would be aware of her complaint. She suggested that GD speak to SG to agree how her complaint would be handled. In response to cross examination GD said she met with SG who asked her what she wanted to do and that at this stage she was not 100% sure but felt unsafe so it was decided to investigate under the FTSU policy, admitting that she did not want C to know she had complained about him stating she felt “scared”. She explained that she did not hear anything further about her complaint until April 2024 when she was contacted by DD and was made aware of the allegations C had made against her. She said that at this point DD seemed to be unaware of her complaint, and it was not until May 2024 that she was interviewed by the external investigator about her own complaint. She said she was concerned that matters were not progressing and felt quite on her own and raised this multiple times with her line manager and then with DD once he became involved. She stated that it was a “horrible thing” to have hanging over her and accepted that it was also a horrible thing for C to have hanging over him. When asked whether the best way to resolve matters was if C knew about her complaints and had the opportunity to adjust his behaviour, GD said she did not feel safe on a call or meeting with C. Decision to change commissioning managers.

35.132 On 13 September 2023, AW emailed SG and AG to inform them that “due to some complex issues raised and following advice from NHSEI”, R had decided to have to separate commissioning managers for the DAW and FTSU investigations. She informed SG that AG would be taking over as commissioning manager for FTSU issues and both would have two separate external HR advisers (page 1814). AG wrote to DP, the external HR support identified, that same day (page 1826-7) to make contact and in that e mail stated that she had originally been there to support SG in an oversight capacity on FTSU components but that following a meeting with legal, JV and AW, R was now moving forward with two commissioning managers.

35.133 On 15 September 2023, AG wrote to C responding to his earlier communications. She informed C that JV and R had reconsidered the position in relation to the commissioning manager for the FTSU and DAW processes and had decided that two separate commissioning managers would be appointed, and that she would now lead the FTSU process and SG the DAW process. She stated that she would also have an oversight in relation to complaints about the way the FTSU process had been carried out that were part of the DAW complaint. She stated that having reviewed the list of 24 alleged breaches of the FTSU policy provided to her (which we assume is the attachment referred to at paragraph 35.126 above) she concluded that these were the same complaints contained in the first section of his DAW complaint of 17 August 2023. She asked C to confirm whether he wanted these matters addressed within the existing DAW complaint overseen by SG or whether this was a separate FTSU concern overseen by AG. She suggested that C’s DAW complaints should be progressed immediately to external investigation. She went on to address the FTSU concerns raised against C acknowledging it was a difficult time for C but said she was satisfied as FTSU NED lead that R had received a range of concerns from individuals, following the DB meeting in July and additionally after this. She stated that it was crucial for those who had raised these concerns to be interviewed by an investigator and whether individuals wished to speak to them on an open, confidential or anonymous basis would be addressed by the investigator. She stated that it ws a “unique situation” with a Board member involved, that she did not believe it was mandatory for informal resolution to be attempted in all cases and that having reviewed the complaints it was not possible for these to be resolved informally. She acknowledged C wanted to complain about JV and provided information about the DAW and FTSU processes for doing this, stating that there was no right of appeal in relation to FTSU issues. She suggested meeting with C with HR support to discuss his concerns and his wellbeing and to offer support.

35.134 It was put to C in cross examination that this was an acceptable way forward suggested by AG. C disagreed stating that the whole point of his challenge in relation to AG acting as FTSU NED lead was that if she had been involved earlier, evaluated the situation and considered whether it could be addressed informally she would have considered that it was a combination of anonymous reports and that the other whistleblowers might have had the motive of wanting to impugn his reputation. He suggested that had AG come to him first and said ‘these things don’t sound like you’ and asked for his view, he could have stated that the complaints were all lies and had given him the opportunity to make his case before R embarked on what he described as a ‘fishing expedition’. Given what AG put in her response above on dealing with the matter informally (see paragraph 35.133), the scenario C had anticipated did not seem realistic or likely to have occurred if AG had been involved earlier. Alleged PID 10 and PA3 – Claimant’s DAW complaint against the Chair 18 September 2023

35.135 On 18 September 2023, C raised a complaint against JV under the DAW policy, emailing this to AG (page 1836-40). This alleged that he had failed to remain independent and has subjected C to a “vendetta of bullying and psychological abuse”. He questioned the fact that the FTSU complaint was notified to him 7 working days after he had applied for the DCEO role and suggested he could not believe that having had no complaints for his entire career, a number of concerns arrived independently in one week. It alleged that JC was “acting in concert” with MF to put him under external investigation and that this was discrimination and victimisation. He complained that JV had refused to refer the matter to AG for over a month and had instead passed it to “his mentee” SG. He suggested JV had ignored or denied his representations and that the correspondence from him “betrays the contempt” in which JV held him making C feel unsafe at work. He complained about the threat of an investigation where complainants can give evidence against him anonymously, alleging this could cause defamation and “ruination of his unblemished reputation”. He accused JV of manipulating R’s processes and that there was no prospect of fairness or justice within R and that he would be commencing Tribunal proceedings as soon as possible. JV said in response to cross examination questions that he did not see a copy of C’s complaint until April or May 2024. C’s complaint was acknowledged by AG on 19 September 2023 (page 1838-9). It appears that this complaint was then passed to SG to also act as commissioning manager for following AG’s decision to step down from her role in respect of the matter which was communicated to C on 11 October 2023 (see page 2063-4). Issues 2.2.10; 2.2.15; 3.2.10; 5.6.9; 5.6.15; 5.6.26 Commencement of investigation against the Claimant under the Maintaining High Professional Standards in the Modern NHS (MHPS) October 2023 - direct race/age discrimination; victimisation and protected disclosure detriment (PA1, PID9) Complaints from NHSE

35.136 On 2 October 2023, MF and JV were invited to a telephone call with a number of employees of NHSE’s regional office, JS, the HLRO (the individual at NHSE who is responsible for ensuring that there is an agreed process in place where concerns are raised about the conduct of the RO in their designated body), RF, KB, LS and SA. During that call, MF and JV were informed that some individuals had raised concerns about C to NHSE in confidence and although some information as to the nature of concerns was shared, there were no specifics of complaints. JS instructed R that they would need to establish a local decision-making group (“LDMG”), in accordance with the “Framework for management concerns about Responsible Officers who have a prescribed connection to a higher-level Responsible Officer of NHS England – A guidance document for use by higher level responsible Officers of NHS England (29 February 2016)” (“the Framework”) shown at pages 2072 – 2082). MF asked that further details be sent by e mail to R.

35.137 On 3 October 2023, BP sent an email setting out a list of actions following the meeting (page 2098). She provided information that she said that R was being asked to review, namely, that : “(1) Working with C is unsustainable; (2) Execs felt unsafe in role at work; (3) Consultants are approaching senior exec - do not feel safe to raise allegations of sexual harassment – won’t be investigated by C or his senior team”. A further e mail that day confirmed JS’s direction that R were required to set up a LDMG forthwith to consider all the information and to decide: “1) Whether any new investigation is required based on the new concerns that have been raised or whether the scope of any existing investigation(s) could be amended to cover the new concerns and 2) Whether in light of all the concerns that have been raised, the RO should continue undertaking RO duties whilst any investigation(s) into the concerns is ongoing.”

35.138 MF e mailed to query whether further detail would be provided (page 2096) and the following day, BP responded by e mail (page 2095). This did not identify who had complained and referenced a meeting on 22 June with three consultants who shared a “broad range of concerns” about C, SA and “a small group of people within their close network”. There was reference to poor/absence of clinical leadership, favourable treatment, misusing R’s policies (e.g. feeling threatened with HR processes if status quo challenged) and behaviour not aligned with R values of compassion and respect. Mention was made of fear of speaking up and gave an example of a consultant who smoked cannabis at work and had displayed unwelcome sexual behaviours towards a student nurse and that the consultants were afraid to report to C and SA. It mentioned concerns being raised by clinical colleagues about comments allegedly made by C to the effect that he would change the diagnosis of women if they ended up on a new pathway for complex emotional needs; that he said that every woman had at some point given the key to their abuser; reference to there being farms and group homes previously and C suggesting that R should go back to sending people there; and telling people that the parents of a young person who had died by suicide were to blame for her death.

35.139 AW informed JS on 16 October that a LDMG had been set up in accordance with instructions sent on 3 October (page 2275). It confirmed the identity of those involved, namely JJ, KG, GNP, JH and SR. MF would usually have been a member of the LDMG but was not included given that C had raised concerns about her. On 17 October, BP e mailed MF confirming that someone else had raised a concern to NHSE (page 2283-4). The e mail set out 3 “themes” of the conversation, raising issues of “clinical approach” largely related to terminology used being outdated, “diversionary” relating to raising concerns with executives about behaviour at meetings and approach to executive colleagues, especially finance; and “Behaviour” relating to spend, sharing views that executives are “out to get medical colleagues” and not adhering to trust policy re keeping camera on during meetings. On 16 October 2023, the participants of the LDMG were sent a bundle of documents (the index of which was shown at pages 2102-3) to download and were asked to keep them confidential. This was an extensive list and included a number of the letters sent by C to various people within R from mid-July to mid-September. At the request of GNP, the panel were also sent a copy of R’s disciplinary procedure (page 2285-87). C suggested that AW cherry picked the documents to go before the LDMG in a deliberate manner to exclude key information such as C’s appraisal record and his allegations that the complaints were malicious, that if they are included may have led the LDMG to make a different decision. We accepted the evidence of AW that it was her, KS and R’s solicitors who determined what was included and we can see nothing to suggest any sort of underhand or suspicious motive in this regard. There was a significant amount of correspondence going backwards and forwards between C and R at this time, much of it repetitive in the points being made.

35.140 When asked whether the LDMG had been set up with an appropriate set of considerations, C agreed that it was but stated that in order for a balanced and fair decision to have been made, the LDMG should have taken into account everything that is known about the RO, in this case him. He said that information he had disclosed about two doctors wanting to impugn his reputation should have been considered as well. C also suggested that NHSE should have raised the issues with him first and that he should have had the opportunity to have an audience with the LDMG. C also stated that he felt that the LDMG was led by someone who was conflicted. We address these points in our conclusions below. LDMG decision

35.141 The LDMG meeting took place on 18 October 2023. A transcript taken from a recording of the meeting was provided on day 11 (page SB 894- 1022). The Tribunal was shown a completed decision log for the LDMG at pages 2290-94 which included the following recommendation: “View of the panel under section 6 of the NHS England Framework for managing concerns about Responsible Officers guidance (2016) there is sufficient evidence from a variety and number of colleagues relating to alleged bullying and/or harassment and clinical leadership which warrants investigation- concerns from the panel that staff are going direct to NHSE and are unable to raise concerns without anonymity. Panel do not consider capability for day-to-day clinical practice or clinical skill, as a registered Dr meets the threshold for further investigation based on information provided in bundle. Consolidation of investigation under: Disciplinary and Performance Management of Medical Practitioners Policy – With Freedom to Speak Up and Dignity at Work/Disciplinary Policy referenced and with FTSU protections still maintained. Revised terms of reference are required to be shared with the panel for consideration to then put to HLRO. Appointment of case manager overseen by HLRO.” In relation to the question as to whether C’s duties should be restricted, it determined that: “Should not continue with RO/CMO duties while the investigation and any resulting processes are on-going.” It set out further a rationale for this decision on R)/CMO duties, referring to the fact that concerns were raised directly with NHSE and were of a serious nature; that there was evidence that staff felt unable to raised concerns directly without anonymity; that as there were no significant concerns of clinical capability that the preference would be to restrict practice to reduce the risk of an impact on the investigation; and that consideration may need to be given to support the undertaking of clinical activities. It was clear from reading the transcript of the LDMG meeting that the decision log was completed and updated by KS during the meeting to reflect the decisions made by the panel.

35.142 Although JJ did not attend, she submitted a written witness statement with an account of what was discussed. As well as broadly summarising the conclusions recorded in the decision log, her written witness statement included a comment that the panel considered whether the concerns were vexatious and potentially from the same group/people but noted that the language and style of the complaints looked different and did not appear to be from the same person. C submitted that the transcript of the LDMG did not show that such a discussion should take place and asks the Tribunal to find that JJ was being untruthful. Having reviewed the transcript, the Tribunal accepts the submission of C that this was not discussed during the LDMG meeting. We did not hear from JJ in evidence, and this point could not be put to her. Whilst we could not find on this basis that there was dishonesty, in light of this the Tribunal determined that it would place no weight on JJ’s evidence about the LDMG and what it concluded given concerns about the reliability of such evidence. The Tribunal however was satisfied that the decision log, the LDMG transcript and the letter to JS of 23 October 2023 were consistent with each other and together set out an accurate record of what was discussed in the meeting and what was concluded together with what was communicated to JS after this meeting.

35.143 On 20 October 2023, AW e mailed JS to inform her that the chair of the LDMG would be communicating with her directly on the outcome. AW sought advice on how to proceed (page 2308) including who should be appointed case manager should the HLRO determine that an investigation was required under the MHPS route (given that it was the MD himself involved). She asked for views on the two external investigators that had been previously identified (Ibex Gale and Dearden HR). It further asked for guidance on the appointment of an interim RO (if appropriate) and the TOR for an investigation.

35.144 On 23 October 2023, JJ wrote to JS with the outcome of the LDMG (pages 2312-4) which was e mailed on 25 October 2023 (page 2339). It stated that there was: “sufficient evidence from a variety and number of colleagues relating to alleged bullying and/or harassment and inadequate clinical leadership which warrants a formal investigation. The Group considered that the concerns raised about CMO could not reasonably be resolved informally.” It further added that the issues raised amounted to “serious concerns under Maintaining High Professional Standards in the Modern NHS and required formal investigation under the Trust’s: Disciplinary and Performance Management of Medical Practitioners Policy” It clarified that those who had raised concerns under the FTSU policy must have associated protections including anonymity if requested and that the existing TOR for that investigation needed to be updated. It further stated that the LDMG did not consider that there was sufficient evidence to exclude C from clinical activity to protect the public, but that restriction of practice may be necessary during the investigation to ensure that there was no impact on this. It added that in its professional judgement, it would be. “inappropriate for the CMO to continue with his clinical leadership responsibilities” during the investigation but this should be kept under review.

35.145 On 27 October 2023 JS confirmed to KS in writing (page 2348-2350] that after giving due consideration to the LDMG’s determination and, in particular paragraphs 5 and 6 of the NHSE Guidance, that she was of the view that a formal investigation was needed and that she was satisfied that the MHPS policy and associated policy was appropriate. In respect of the restrictions on practice, JS considered that a restriction on the C’s RO duties was required, taking into consideration the provisions of the NHSE Guidance, in particular the ‘Restriction of RO Duties’ section. JS advised that an interim replacement be put into place and that conversations needed to take place with the GMC imminently. She also stated that any restrictions on clinical practice was a matter for R to determine. We accepted MF’s evidence that she consulted with AF about this matter and the PPA and GMC and decided that it would be necessary to restrict C’s CMO role because she considered that the RO role was fundamentally a part of CMO role and the two couldn’t reasonably be separated. She explained that given the breadth, number and serious nature of the allegations, she decided his fitness to provide leadership as RO and CMO was in question and as the LDMG and HRLO had deemed it necessary to restrict C from his RO role, he also needed to be restricted from his CMO role. R was also required to appoint an interim CMO upon the decision to restrict C as this was a statutory position. JS had also advised that an interim RO needed to be put in place. R initially appointed JHo, a consultant cardiologist and CMO at another trust for a 2-week period and then appointed JSr (a deputy CMO from another trust who was seconded to R). MF also told us that as some of the concerns raised were about behaviours in a clinical capacity, that she also decided that C should attend weekly review meetings with the interim CMO to ensure that there were no concerns about clinical practice and to act as a supportive measure for C. We accepted this evidence. On 1 November 2023, EA wrote to AW confirming the position of the PPA in relation to the steps to be taken in relation to C (pages 2418-20). In particular, it was noted that the HLRO had agreed to the restriction of C’s RO role as decided by the LDMG but stated that the decision as to the restriction on the CMO role was a matter for R itself. Issue 2.2.13; 3.2.13, 5.6.12 - Notification to C of restriction of duties – direct race/age discrimination; victimisation; protected disclosure detriment ((PA1, PA2, PID9) Issue 2.2.25; 3.2.14, 4.1.2, 5.6.24– Requiring C to report to interim CMO (initially a cardiologist, then a DCMO from another trust) every week about his clinical work – direct race/age discrimination; victimisation; race/age related harassment, protected disclosure detriment ((PA1, PA2, PID9) Issue 2.2.12; 3.2.12; 5.6.11 – direct race/age discrimination, victimisation; protected disclosure detriment (PA1, PA2, PID 9) – Failing to inform C of sufficient details of complaints made against him to NHSE including who made the complaints such that he was able to properly answer issues raised MHPS Investigation November 2023

35.146 On 2 November 2023, C was sent a letter from MF (pages 2356-61). This letter set out the background to what had occurred to date and went on to inform C that concerns had been received from NHSE by R in relation to C on 2 October 2023 (and on dates subsequent to this). It summarised the concerns as being about his behaviour and leadership style making individuals feel unsafe and afraid of speaking up, that derogatory, inappropriate and discriminatory comments had been made to colleagues; that staff feel unable to raise concerns with the medical leadership team as they will not be addressed; concerns relating to finance and an unwillingness to discuss matters; using language that is undermining of R and executive colleagues in meetings with medical colleagues and the expression of out of date views and suggesting antiquated treatment methods. It went on to state that R had been required by the NHSE HLRO to convene a LDMG which met on 18 October 2023 and that a decision had been made that a formal investigation was warranted as the concerns could not be resolved informally and that this should take place in line with MHPS under R’s disciplinary policy. It further stated that the LDMG had determined during the investigation, that C could not continue as RO and CMO. It confirmed that on 27 October 2023, the HLRO had advised that an investigation should take place and that C should not act as RO during this period (noting that any decision on restriction of CMO duties was for R).

35.147 MF went on to state that she had made a decision to commence an investigation under the MHPS (after taking advice from the GMC and PPA). She stated that she was in the process of appointing a case manager and drafting TOR which would be shared with C and that a designated NED would be appointed to oversee the process. It clarified that the investigation would consider the concerns raised internally (as previously notified) and the new external concerns and would “supersede the previous planned FTSU investigation” and that it would also be combined with an investigation of the complaints raised by C under the DAW, as there was some overlap. She stated that once a Case Manager had been appointed, MF would play no further part in the management of the process and if any decision making was required by her, she would nominate the Case manager to provide that information to the Board.

35.148 MF stated that she had decided it was not necessary for C to suspended but that there should be temporary restrictions on his practice whilst the investigation is ongoing, adding. “I emphasise that no decision has been made about the allegations, and nor could there be as no investigation has yet been carried out.” She went on to state: “Given the breadth, number and serious nature of the allegations made about your behaviour, including externally to the Trust which, if wellfounded (and of course, that is to be determined by the investigation), would call into question your fitness to provide leadership as RO and CMO of the Trust, I consider that restricting your duties such that you will not fulfil those roles whilst the investigation is ongoing is necessary. This restriction to your duties will take effect from 3 November 2023, following which you should not be undertaking any CMO/RO duties or responsibilities.” It further mentioned that this was necessary for the investigation and his continue presence of RO and CMO could impede the gathering of evidence. She also stated that she considered that his work as a clinical psychiatrist could continue but as some of the allegations related to behaviours in a clinical capacity, that C was required to attend weekly review meetings with the interim CMO to ensure that no concerns arise. She stated that these sessions were intended to be supportive and so that C could raise any matters with which he needed assistance. She stated that as C did not have a current job plan in place, the interim CMO would be in contact to discuss his clinical role and the number of sessions he undertake. She stated that the situation would be reviewed every 4 weeks and clarified that the restrictions did not constitute disciplinary action.

35.149 She went on to suggest that C took a period of special leave for a week stating that she understood that the letters contents would be distressing and to enable R to make arrangements for cover and to appoint a case manager. She sent some suggested wording for a communication to staff and asked for any comments he wished to make to it. The letter concluded by setting out various sources of support that were available to C. This letter attached a copy of the LDMG decision log. C submitted that this is a different document to the one referred to at paragraph 35.139 above in that the statement at page 2290 about C’s clinical practice, namely: “Panel do not consider capability for day to day clinical practice or clinical skill, as a registered Dr meets the threshold for further investigation based on information provided in bundle”, is not included. It is submitted that the document was changed to exclude the full LDMG finding “deliberately to enable MF to justify restricting C’s clinical practice and humiliating him”. We can see that the two documents are different in a number of instances, but on reading, the essence of the document is the same. We were not referred to the later document attached to the letter sent to C during the hearing and this allegation of deliberate changing of the document to humiliate C was not put to MF. We find that although the form of words, formatting and overall look of the document was updated before it was sent to C, there is no actual change in substance. On the particular point raised by C in submissions, the message that C’s practice as a doctor did not need to be restricted is in the second document as well as the first, albeit expressed differently, where it states, “The Group do not consider there is evidence that exclusion from the CMO’s clinical activity is necessary in order to protect the public however restriction of practice may be necessary while the investigation is underway to ensure there is no impact or influence on the investigation.” This does not suggest any deliberate tampering for nefarious purposes as the contents and message of both documents is broadly the same, and we find that any change from the working decision log and the final one issue to C are more than likely have been made for presentational or ‘tidying up’ purposes to convert a working document into a final version.

35.150 On 13 November 2023, C presented his claim to the Employment Tribunal. MAC meeting of 17 November

35.151 On 17 November 2023, C attended a meeting of the MAC where a pre prepared statement was read out which was shown at pages 2437- 2440. This stated that the message that he had ‘stepped away’ was inaccurate and a ‘misrepresentation’ but that he had been temporarily restricted from his duties by R. He talked about the actions against him feeling like an ambush after 20 years without a single complaint. He stated that he had no say in anything, and it had all been done behind his back. He stated that the process had not been followed and he was challenging it and was not permitted to say what had happened quoting an instruction in an email from AW, namely “To be clear, the need to keep matters in the letter of 2 November confidential is a management instruction and not a request and I therefore remind you not to share this information beyond the parameters set out in the letter”.

35.152 He talked about his reputation being damaged and that he could not defend himself and that R had breached confidentiality, not him. He went on to make general comments about his own view of leadership being compassionate and that the most precious resource is the human resource, and “none more so than the doctors”. He stated that he believed in clinical leadership and that the merger was “clinically led” for good reason, but that was being moved away from, stating that this had been happening over 18 months and adding: “We keep being assured that this is not the case but I can tell you that it is” He then went on to complain that he had not progressed in being considered for the CEO position, stating that he did not get past the first stage, being told that his CV “was “too medical” and that was what excluded me”. He stated that he was not being heard and treated with the same level of respect as others and that he an SA had fought and fought to try and make things right, adding, “you might conclude that’s why we are where we are”. He finished by referring to cases at UHB and the Letby matter stating that those were cases where MDs “sided with management against doctors” and threatened them with referrals to the GMC if they did not comply and that doctors were “forced to apologise to a nurse they suspected of murdering babies”. He went on to state that what was needed was “medical directors and other members of Boards who will stand up, defend the doctors and do the right thing” and that he liked to think he was one of those leaders. AW told us that concerns had been raised with her that C was promoting a narrative that R’s executive team were against the medical workforce and that R felt that C had not followed the management instruction from MF on 15 November 2023 to maintain confidentiality. She explained that a concern was raised that making this statement could impact on individuals who might be witnesses in any investigation. We accepted this unchallenged evidence. Appointment of case manager for the MHPS investigation

35.153 The GMC suggested DD (a consultant psychiatrist at a different trust who had previously been a CMO) as an option for an external case manager. On 7 November 2023 AW met with him, and he agreed to do this. On 28 November 2023, AW emailed DD and introduced SG as the Designated NED for the investigation. DP was to provide independent HR support to DD, and RD was to provide independent HR support to SG (page 2473-2476). DD sent a letter by e mail to C on 1 December 2023 (page 2480 and pages 2489-91) introducing himself and setting out his role in the process. He stated that his first task would normally be to see if the matter could be resolved informally but as the LDMG had already determined that the matter was unsuitable for informal resolution that this had been decided by MF and he was satisfied that this was the correct course of action having consulted with the PPA. He explained he was currently finalising the TOR and would share them once this was done stating that these had to be agreed with the LDMG and the HLRO. He confirmed that an external HR consultancy had been appointed to actually carry out the investigation and would be in touch. He also asked C to provide any documentation which was relevant. He indicated that the investigation had initially been scheduled to take 12 weeks, but it may be that the timeframe needed to be extended. He confirmed he had reviewed the restrictions on C’s roles and that they should remain in place for the next 4 weeks until 28 December 2023 when they would be reviewed again. He informed C that SG was the designated NED and reminded C of support arrangements in place.

35.154 On 6 December 2023, C notified AW by e mail (page 2526) that he would be going off sick citing the threat of investigation and his own DAW complaints having been ignored. He also stated that he had been notified that two doctors had been asking questions about the work being done by his team making colleagues feel intimidated and that they were trying to encourage complaints to be made against him. He stated that he did not feel safe going into work and he was under stress which had affected his health and wellbeing. He asked that other than the sickness notification process, all contact should take place via his solicitors. AW acknowledged this and expressed sympathy. In relation to the allegation against the 2 doctors made in C’s e mail, she asked him to encourage the individual concerned to contact RD or the FTSU Guardians so that these matters could be looked into. She stated that JSr would be his contact for wellbeing but that all other contact would be via his solicitors (page 2525).

35.155 On 14 December 2023, C’s then instructed different solicitors, Weightmans, wrote to DD to “request disclosure” of a list of matters stating that this had already been requested from MF and that this was required under paragraph 4. 2..3 of the MHPS policy. Access to RIO

35.156 AW gave evidence (which we accepted) that at some time around late November 2023, ND informed MF that when he was reviewing access rights to the systems after C’s restrictions were put in place, that he noticed that C had last logged into RIO, the patient record system over two years previous (on 3 November 2021). AW described this and the issue that had arisen at the MAC meeting as being potentially serious matters that needed to be discussed with C. She told us that JSr instructed Browne Jacobson to write to C via his lawyers. Issue 2.2.28; 3.2.26; 5.6.27 - New Concerns notified to Claimant – direct race/age discrimination, victimisation and protected disclosure detriment complaints (PA1, PA2, PA3, PID 9)

35.157 On 20 December 2023 a letter was sent by Browne Jacobson to Weightmans (page 2549-2551). This enclosed a copy of Rs sickness policy and stated that R intended to activate an OH referral in accordance with its policy, as the absence was stress related. This was to assess fitness to attend work but also to engage in other processes regarding the ongoing investigations. It addressed issues around the review of restricted duties and apologised for the delay in the sending of TOR for the investigation and said it was trying to ensure that documents were agreed by all stakeholders to be issued before Christmas. It went on to inform C that there were “New Concerns” that had arisen. The first was headed ‘Access to Rio’ and stated that the interim CMO wished to meet with C to discuss his access as its IT systems indicated that his last login was over 2 years prior which suggested that the account was not active despite C undertaking clinical duties. It was described as an important issue which R would like to ask C to explain. C gave unchallenged evidence that his later explanation given to DD that he had not accessed RIO because he delegated this task to his administrative team and to junior doctors was accepted by R. The second matter was headed ‘Medical Advisory Committee Meeting’ and referred to C’s statement at the MAC meeting on 17 November 2023 “which was considered as promoting a narrative that Trust Executives are against the medical workforce”. It mentioned that this is a similar issue to one of the new concerns raised to NHSE which C was notified of on 15 November 2023. It also stated that C had been reminded that he should keep matters confidential and stated: “Your client’s subsequent actions in both of these respects are matters of concern to the Trust. In particular, your client’s actions in the making of, content and potential impact of the statement made to the MAC meeting could have on individuals either attending the meeting or a party to the communications regarding the MAC meeting who wish to speak up about your client in the impending investigation process. This could have the effect of impeding or supressing the investigation of individuals raising concerns and you will of course understand that these potentially serious matters do require your client’s explanation, and response.”

35.158 The letter noted C’s absence from work and asked for availability to attend a meeting in the first week in January to discuss these matters (pointing out that these must be addressed before any return to clinical practice can be considered). It was put to C in cross examination that what he had done was a wholesale breach of the obligations of confidentiality that had been communicated to him and he was trying to stir up dissent, C denied that this was the case and said he was seeking to defend himself and at that time he was on the brink of becoming very ill. C said he felt vulnerable and extremely threatened by “outlandish lies” in what he believed was a plan to remove him

35.159 Weightmans sent a response the same day (page 2552) stating that they were unable to take instructions or respond, agreed that a referral for OH should take place and suggested that no further steps be taken under OH have carried out their assessment as to C’s fitness to participate in the process. They also suggested that it was not appropriate for the TOR to be shared before the Christmas period, and these be put on hold pending the OH assessment. Browne Jacobsen responded on 22 December agreeing to much of what was proposed although stating that they were taking instructions on the suggestion that the TOR were not sent until after the OH assessment. Issue 2.2.29; 3.2.27; 5.6.28 – Setting vague, non-specific and personal Terms of Reference and not complying with MHPS procedure with regards to the provision of information (PA1, PA2, PA3 and PID9)

35.160 It is clear that the TOR for the MHPS were being developed and discussed internally from at least 8 November 2023 and at page 2373, we saw an e mail from JJ to KS on 8 November 2023, making some suggested amendments to this (page 2373). KS circulated the draft TOR by email to the members of the LDMG on the same date (page 2381). The members of the LDMG provided their comments in the days after this (pages 2386-2410) with some members of the LDMG suggesting that the allegations needed to be more specific.

35.161 Draft TOR were e mailed to JS on 29 November 2023 (page 2468). On 5 December 2023, DD e mailed JS to introduce himself and also attached updated TOR for her approval (page 2492). This included a comment about feedback from LDMG members that the allegations should be more specific. The email set out his view that he understood the importance of being specific but that it was not possible to be more specific at that stage as a majority of the complainants had asked to remain anonymous and to include further detail risked identifying them and breaching FTSU policies. DD stated that to try and address this he included a provision that the investigator was to speak with each of the complainants to try and determine more specific detail and to confirm whether the request for anonymity could be maintained given the nature of the issues raised. This was said to enable the investigator to assess which, if any matters could be notified to C before any interview so that he would be able to respond fully. JS responded with comments on 5 December 2023 (page 2502-3). Revised TOR were sent back to JS on 15 December 2023 (page 2538)

35.162 On 30 January 2024, the TOR were sent to Weightmans by Browne Jacobson by e mail (which e mail but no attachment was shown at page 2589). The covering e mail stated that it attached two sets of TOR, one relating to the MHPS and another relating to the complaints made by C under DAW (it apparently having been decided at some point following representations made by C that the two processes be separated). It was agreed between the parties that the attachment to that e mail and so the documents shared with C was the document at pages 2620- 2639. This comprised of a TOR for the MHPS investigation (page 2620- 6), another TOR for the DAW investigation about C’s complaints against GD (pages 2627-2630); another TOR for the DAW investigation about C’s complaints against MF (pages 2631-35) and a further TOR relating to the investigation into C’s DAW complaint against JV (pages 2636- 39). At various points during cross examination, the witnesses appeared to be asked questions about a different TOR document in relation to the MHPS investigation (shown at pages 2606-2613). However the Tribunal has not had regard to this document as it is dated 20 December 2024 and post-dates by many months the period of time that this Tribunal has to examine.

35.163 The Tribunal understand that the part of the various TOR that is particularly challenged relates to the MHPS TOR and that these were “vague, non-specific and personal” so has focused its findings of fact on this TOR. The TOR started by identifying who was involved, what their roles were and referred to the MHPS and FTSU policies. It then had a section headed ‘Concerns and Complaints. The first section headed Part A listed concerns said to have been received by R between July and August 2023. It referred in factual terms to the DB meeting and that 3 complaints were received by email on 19 & 20 July by the CEO relating to behaviours and attitudes exhibited by C towards GD. It then listed the email of 27 July 2023 (referencing C’s alleged behaviours at the DB meeting and other instances where C’s behaviour had been “challenging” or in conflict with Trust values). It went on to list a letter of 4 August 2023 from a group of staff and a communication of 17 August 2023, stating that the complainants wished to remain anonymous. The TOR stated in terms that five of the six mails listed were attached as appendices, although it is unclear to the Tribunal whether these were sent at this time or not.

35.164 The second section labelled part B, set out the concerns that had been received from NHSE on 2, 6, 11 and 17 October 2023. No detail was provided other than them being concerns about MW, albeit that the e mails were said to be appended. It went on to list the steps taken by the HLRO and LDMG as set out above. The next part labelled Part c, set out the basis on which the case investigator was being asked to investigate and listed 14 points as follows: “a. Whether or not MW’s behaviours and conduct at the DB Meeting generally (as well as in other Trust meetings over the last 12 months, including the Public Board Trust Meeting), and towards other individuals, has been bullying, inappropriate and/or disrespectful, in conflict with the Trust’s aims and values, and/or has breached the Trust’s expected standards of behaviour;

b. Whether or not MW’s participation in any remote meetings has been inappropriate by failing to turn on his camera and appearing not to be present during all meetings;

c. Whether or not MW has been dismissive towards other members of staff, especially those who are not clinicians /non-medical and whether or not he has failed to treat colleagues with compassion and respect;

d. Whether or not MW has acted to undermine the Executive Team, in particular by the way in which he has spoken about the Executive Team to medical colleagues;

e. Whether or not MW has challenged groups unnecessarily within the Trust, with these challenges being unproductive and demoralising; e. Whether or not MW has been dismissive of other colleagues and/or failed to treat colleagues will compassion and respect;

f. Whether MW’s leadership style has contributed to an environment where individuals feeling unsafe or unable to speak up due to fear of repercussions;

g. Whether or not MW attends meetings unprepared, which leads to a lack of structure and focus;

h. Whether or not MW exhibits favouritism and nepotism within his management team and protects individuals;

i. Whether or not MW makes unilateral decisions, without compassion or care, or adherence to Trust values; l. Whether or not MW has made derogatory, inappropriate, and discriminatory comments about patients and colleagues; m. Whether or not MW has expressed out of date views on new clinical presentations and suggested antiquated treatment methods and if so, what the impact of this has been on outcomes; and n. Whether or not MW has failed to manage finances relating to medical leadership appropriately and/or whether MW has been unwilling to engage in conversations about medical leadership finances.”

35.165 It went on to ask the investigator to consider whether by reason of any of the above, there had been a breakdown in working relationships and whether that is remediable and how. It noted that in order to respond, C would need further specific information about the concerns explaining that it could not be done at this stage as the majority of complaints had been raised by those who did not want to be identified at this stage and some concerns raised externally were unknown to R. It asks the investigator to ensure as far as possible that further information is obtained and provided to MW before he is interviewed. It went on to state that if further matters arose during investigations that were outside the TOR, or related to patient safety, they had to notify the Case Manager in writing and possibly the HLRO.

35.166 The TOR included a statement that the case investigator was not a decision maker and any steps following the submission of their report was for the Case Manager only. It indicated that interviews could take place on a confidential basis but that the investigator had to inform those who wished this that this may place limitations on the ability of R to investigate and/or resolve concerns. It stated that the report produced by the investigator would be used to enable the Case Manager to make decisions as to whether there is a case of misconduct that should be put to a disciplinary panel, concerns about health for OH, concerns about performance to be explored by the PPA, whether restrictions on practice should be considered, whether a referral to the GMC should be made, whether there are intractable problems leading to the matter being put before a capability panel, whether there has been a breakdown in relationships and how to remedy or whether no further action was needed. It suggested that the investigation should commence as soon as possible and should be completed within 12 weeks but that this may be extended with agreement of the Case Manager and C would be informed if this was the case. Current position

35.167 As at the time of the Tribunal hearing in June 2025 the MHPS and other investigations had not been concluded. There was a dispute as to the reasons why this was the case but as this was not a matter before this Tribunal we have not considered this further. The Relevant Law

[36]The relevant sections of the ERA we considered were as follows: 43B Disclosures qualifying for protection.(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. 43C Disclosure to employer or other responsible person. (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure ...— (a) to his employer, 47B Protected disclosures. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker ('W') has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. 48 Complaints to employment tribunals (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.

(2) On a complaint under subsection …. (1A) … it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

(3) An employment tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

[37]The relevant sections of the EqA applicable to this claim are as follows: 4 The protected characteristics The following characteristics are protected characteristics: … …age;…race….” 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. 23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13....there must be no material difference between the circumstances relating to each case.” 26 Harassment (1) 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. (4) 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. 27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. 123 Time limits (1) [Subject to [sections 140A and 140B],] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. 136 Burden of proof (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[38]The relevant authorities which we have considered in relation to the claims for PID detriment were as follows: Williams v Michelle Brown AM/

UKEAT/0044/19

/00 where HHJ Auerbach considered the questions that arose in deciding whether a qualifying disclosure had been made. “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.” Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT

[2010] ICR 325

[2010] IRLR 38

made it clear that to be a disclosure there must be a disclosure of information, not an allegation. Fincham v HM Prison Service

EAT/0925/01

confirmed that the disclosure of information must identify, albeit not in strict legal language, the breach of the legal obligation that the claimant is relying on. Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

- paragraphs 31 and 32 on the irrelevance of the distinction between ‘allegation’ and ‘information’ in whistleblowing complaints as this is essentially a question of fact depending on the particular context in which the disclosure is made. Simpson v Cantor Fitzgerald Europe,

UKEAT/0016/18

explained the position as follows: - “The Tribunal is thus bound to consider the content of the disclosure to see if it meets the threshold level of sufficiency in terms of factual content and specificity before it could conclude that the belief was a reasonable one. That is another way of stating that the belief must be based on reasonable grounds. As already stated above, it is not enough merely for the employee to rely upon an assertion of his subjective belief that the information tends to show a breach.” Chesterton Global Ltd v Nurmohamed

[2017] ICR 731

CA The following guidelines were suggested as to determining whether the worker genuinely believed the disclosure was in the public interest and whether it was reasonable for him to have done so:(a) the numbers in the group whose interests the disclosure served;

(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;

(c) the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;

(d) the identity of the alleged wrongdoer – the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e., staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest, though this should not be taken too far. Babula v Waltham Forest College

[2007] ICR 1026

CA - account is to be taken of the worker’s individual circumstances when deciding whether his or her belief was reasonable. The Tribunal must look at what the worker in question believed rather than on what a hypothetical reasonable worker might have believed in the same circumstances, although the test is not solely subjective. Korashi v Abertawe Local Health Board

[2012] IRLR 4

EAT, para.62 & 64 the reasonable belief of the person making the disclosure takes into account the characteristics of the claimant, i.e., what a person in C’s position would reasonably believe to be wrongdoing. This was followed in Phoenix House Ltd v Stockman

2017 ICR 84

, EAT – the subjective element is that the worker must believe that the information disclosed tends to show one of the relevant failures and the objective element is that that belief must be reasonable. Darnton v University of Surrey

2003 ICR 615

EAT held that determination of the factual accuracy of the worker’s allegations will, in many cases, be an important tool in helping to determine whether the worker held the reasonable belief that the disclosure in question tended to show a relevant failure. Korashi also decided that in the case of multiple disclosures, it is not enough that C believes that the gist of the multiple disclosures are true, there must be a reasonable belief in respect of the particular disclosure relied upon. Eiger Securities v Korshunova

[2017] IRLR 115

EAT) - The ET must identify the breach of legal obligation (if that is relied upon). Conduct which is immoral, undesirable or in breach of guidance is not enough without also being in breach of a legal obligation. Blackbay Ventures Ltd v Gahir

[2014] IRLR 416

EAT) - When considering a claim of detriment for multiple disclosures the ET should be precise as to the detriments and disclosures in question and should not just roll them all up together. Fecitt v NHS Manchester

[2011] EWCA Civ 1190

[2012] IRLR 64

[2012] ICR 372

– “section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower”. International Petroleum Ltd & Ors v Osipov & Ors [2017] the EAT determined that “the words “on the ground that” were expressly equated with the phrase “by reason that in Nagarajan v. London Regional Transport

1999 ICR 877

. So the question for a tribunal is whether the protected disclosure was consciously or unconsciously a more than trivial reason or ground in the mind of the putative victimiser for the impugned treatment. Under s.48(2) ERA 1996 where a claim under s.47B is made, “it is for the employer to show the ground on which the act or deliberate failure to act was done”. In the absence of a satisfactory explanation from the employer which discharges that burden, tribunals may, but are not required to, draw an adverse inference.” Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL - for a disadvantage is to qualify as a "detriment”, Tribunals should take the broad and ordinary meaning of detriment from its context and from the other words with which it is associated. It confirmed De Souza v Automobile Association

[1986] ICR 514

, 522G, that the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. Jesudason v Alder Hey Childrens NHS Trust [2020] IRLR - Some workers may not consider that particular treatment amounts to a detriment; they may be unconcerned about it and not consider themselves to be prejudiced or disadvantaged in any way. But if a reasonable worker might do so, and the claimant genuinely does so, that is enough to amount to a detriment. The test is not, therefore, wholly subjective. The causal connection of “on the ground that” is satisfied if the protected disclosure materially influences (in the sense of being something more than trivial) the employer’s treatment of the whistleblower. It is more aptly described as a “reason why” test, it is not a “but for test. Martin v Devonshires Solicitors

[2011] ICR 352

EAT - In looking at the reason why it is open to the ET to distinguish between the protected act and other features which could properly be separable, such as the manner in which complaints were made, frequency and repetitive nature and effect on other employees. Bolton School v Evans

[2007] ICR 641

CA at para.18 - if the cause of a disciplinary process was the belief that C had committed an act of misconduct the reason why for such a detriment will not be the disclosure (even though it may satisfy a but for test)

[39]In relation to harassment the following authorities were relevant: Richmond Pharmacology V Miss A Dhalliwell

[2009] ICR 724

. There are two alternative bases of liability in the harassment provisions, that of purpose and effect, which means that the respondent may be held liable on the basis that the effect of his conduct has been to produce the prescribed consequences even if that was not a purpose, and conversely that he may be liable if he acted for the purposes of producing the prescribed consequences but did not, in fact, do so. A respondent should not be held liable merely because his conduct has had the effect of producing the prescribed consequence. It should be reasonable that the consequence has occurred and that the alleged victim of the conduct must feel that their dignity has been violated or that an adverse environment has been created. Therefore, it must be objectively decided whether or not a reasonable person would have felt, as the claimant felt, about the treatment in question, and the claimant must, additionally, subjectively feel that their dignity has been violated, etc. Grant v HM Land Registry & EHRC

[2011] IRLR 748

CA emphasised the importance of giving full weight to the words of the section when deciding. whether the claimant’s dignity was violated or whether a hostile, degrading, humiliating or offensive environment was created: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” Pemberton v Inwood

[2018] EWCA Civ 564

. Underhill J ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)).

[40]The relevant authorities which we have considered on the direct discrimination and victimisation claims are as follows: Burrett v West Birmingham Health Authority

1994 IRLR 7

, EAT is an example of the proposition that it is for the tribunal to decide as a matter of fact what is less favourable treatment and the test posed by the legislation is an objective one. The fact that a claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment, although the claimant’s perception of the effect of treatment is likely to be relevant as to whether, objectively, that treatment was less favourable. Anya v University of Oxford & Another

[2001] IRLR 377

- it is necessary for the employment tribunal to look beyond any act in question to the general background evidence in order to consider whether prohibited factors have played a part in the employer’s judgment. This is particularly so when establishing unconscious factors. Igen v Wong and Others

[2005] IRLR 258

The employment tribunal should go through a two-stage process, the first stage of which requires the claimant to prove facts which could establish that the respondent has committed an act of discrimination, after which, and only if the claimant has proved such facts, the respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In concluding as to whether the claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the respondent and the claimant. Madarrassy v Nomura International Ltd

2007 ICR 867

- the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the respondent” committed an act of unlawful discrimination”. There must be “something more”. Nagarajan v London Regional Transport

[1999] IRLR 572

, HL, -The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?' Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

[2001] IRLR 830

[2001] ICR 1065

, HL, - The test is what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously was their reason? Looked at as a question of causation ('but for …'), it was an objective test. The anti-discrimination legislation required something different; the test should be subjective: 'Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.' Bahl v Law Society

[2003] IRLR 640

– “where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn. It cannot be enough merely that the victim is a member of a minority group. This would be to commit the error identified above in connection with the Zafar case: the inference of discrimination would be based on no more than the fact that others sometimes discriminate unlawfully against minority groups.” Amnesty International v Ahmed

[2009] IRLR 884

– comparison is not required in a complaint of victimisation but requires the Tribunal to answer the question of the ‘reason why’ which involves consideration of the mental processes (conscious or subconscious) to determine whether the protected act had any material influence on the detrimental treatment. It is not a ‘but for’ test and a Tribunal must focus on the ‘reason why’. This was found in Khan above but also emphasised in Dunn v Secretary of State for Justice

[2019] IRLR 298

at paragraph 44: ‘In the context of direct discrimination, if a claimant cannot show a discriminatory motivation on the part of a relevant decision-maker he or she can only satisfy the 'because of' requirement if the treatment in question is inherently discriminatory, typically as the result of the application of a criterion which necessarily treats (say) men and women differently. […] There is an analogy with the not uncommon case where an employee who raises a grievance about (say) sex discrimination which is then, for reasons unrelated to his or her gender, mishandled: the mishandling is not discriminatory simply because the grievance concerned discrimination.’

[41]The Claimant referred us to authorities on anonymity in relation to disciplinary investigations as follows: Linfood Cash and Carry Ltd v Thomas

[1989] IRLR 235

- the EAT set out guidance for dealing with anonymous informant evidence in an unfair dismissal case, namely that a written statement should be made by the informant with any deletions to prevent identification which should be available to an employee disciplined or dismissed; the motives and background of the informant should be investigated; the informant should be examined at each stage of any investigation and (4) careful notes should be taken of all interviews with the informant. Ramsey v Walkers Snack Foods

[2004] IRLR 754

which accepted that it is possible to anonymise witness statements in internal disciplinary proceedings where there was a genuine fear of reprisals and where the employer believed that witness evidence would not have been provided unless it assured the witness of anonymity. The Claimant cited part of paragraph 9 of Ramsey which quoted Linwood: “It is obvious that from whichever side of industry one looks it is important that dishonesty and lack of trust should, where possible, be eliminated but a careful balance must be maintained between the desirability to protect informants who are genuinely in fear and providing a fair hearing of issues for employees who are accused of misconduct”.

[42]The respondent referred us to Phipson on Evidence (20th ed.) (2022) and provided a summary that a party is required to challenge in crossexamination the evidence of any (factual or expert) witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted. If a party does not put his position to the witness, he will be in difficulty in submitting that the evidence should be rejected. This may be particularly so where a witness’ honesty is to be challenged. This was considered in TUI UK Ltd v Griffiths. UKSC/2021/0208 which the respondent summarised as follows: the general rule in civil cases, is that a party is required to challenge by crossexamination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. (ii) in an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair; (iii) the rationale of the rule, i.e., preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness; (iv) maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy; (v) maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself; (vi) cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty; (vii) the rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Conclusion

[43]The issues between the parties which fell to be determined by the Tribunal were set out above. We set out our analysis and conclusion on each identified issue as follows: (2) Direct race/age discrimination

[44]C makes 29 allegations of direct discrimination on the grounds of race and/or age and relies on the same acts of less favourable treatment in relation to both protected characteristics. In order to decide these complaints, we had to determine whether R subjected C to the treatment complained of (which is set out at paragraphs 2.2.1 to 2.2.29 of the List Of Issues and then go on to decide as set out in issue 2.1 whether any of this was ‘less favourable treatment’, (i.e. did R treat C as alleged less favourably than it treated or would have treated others (‘comparators’) in not materially different circumstances). We had to decide whether any such less favourable treatment was a detriment (if disputed) and crucially whether it was because of either C’s race or because of age.

[45]From his evidence at the Tribunal, we conclude that C holds a genuine belief that he has been discriminated against because of his race, at least in respect of some of the complaints made. We were less convinced that he holds a genuine belief that he was discriminated against because of his age as this was rarely referred to by C in his evidence and cross examination. In any event, in all instances for us to reach the conclusion that C has been subjected to such discrimination, there must be evidence, although it is possible that evidence could be inferences drawn from relevant circumstances. A notable part of this claim is that C gave evidence, and his representative afforded considerable time in cross examination and provided detailed and lengthy submissions about the way in which C believed that he had been subjected to detrimental treatment by various alleged discriminators. Much less attention (if any in some cases) was devoted to the reason why C was subjected to such alleged detriment. There was a strong narrative put forward that various employees of R were against C and all the actions that occurred were part of a determined effort to push him out of R. Even if that were established, this would only get C so far in his claim. Far less focus was placed on trying to establish that there was a discriminatory motive to all such actions. In all cases, R’s witnesses denied such a discriminatory motive and they were not challenged on this nor was it put to them in cross examination that race or age was the reason for the decisions they made or the way they treated C. C relied up the fact that in his view he has been subjected to unreasonable treatment and decision making over a sustained period and pointed to his own race and some research and information (which was not disputed by R) that non white staff are disproportionately subject to disciplinary procedures in the NHS. We accept the submissions of R that there was a failure of C to adequately put his case on his discrimination claim. C asserted on very many occasions that he felt he was being discriminated against, but we remind ourselves, that a belief, that there has been unlawful discrimination, however strongly held is not enough.

[46]We applied the two-stage burden of proof. We first considered whether C had proved facts from which, if unexplained, we could conclude that the treatment was because of race or age. The next stage was to consider whether R had proved that the treatment was in no sense whatsoever because of race or age.

[47]We set out below our conclusions on these matters for each allegation listed in the List of Issues with reference to each paragraph number where the allegation is listed: Issue 2.2.1 - Not long listed for CEO post – October 2022

[48]C agreed that this was the central issue in his discrimination claim. We refer to our findings of fact at paragraphs 35.36 to 35.46 above. C was not long listed for the CEO post following his application which was a detriment. We went on to consider whether this was less favourable treatment and whether it was because of race or age. C compares himself in this regard to MF, QZ, KD, ME and/or a hypothetical comparator occupying the same or a similar position to him and with similar qualifications and experience but who did not share his race and/or was not in his age group. Firstly, it is not entirely the case that the relevant circumstances of MF, QZ and ME were materially similar to those of C (see paragraphs 35.38). C’s background and experience was medical whereas MF, QZ and ME had a management background. KD did have a medical background, albeit in nursing. Therefore there were differences in the nature of qualifications and experience, and also the applications themselves (see paragraph 35.39).

[49]In any event, C has failed to establish any connection between this decision not to long list him and either his race or his age. We conclude that C has not met the first stage of showing a prima facie case that this was discrimination, nor indeed provided any credible evidence that there was any less favourable treatment because:49.1 The recommendation on long listing was first made by GS, an external consultancy who carried out a review of all the applications and gave their view as to which candidates should go forward (see paragraph 35.40). There was no evidence beyond to support the assertion made by C that EP or someone at GS was somehow being influenced by JV to ensure C was not longlisted. The suggestion that somehow C was being held to higher standards by being required to ‘evidence’ how he met criteria (as referred to by EP in her statement provided as part of the later review of the recruitment process – see paragraph 35.59) is just semantics. The use of the word ‘evidence’ here is clearly in relation to how the candidate expressed and explained how they met criteria using examples etc, rather than somehow producing further evidence. There is nothing to suggest that anyone at GS carried out the initial sift which formed the basis of the longlisting decision with any sort of bad faith or discriminatory motive and we were satisfied that their recommendations were based on the applications alone.

49.2 We did not accept C’s submissions that the absence of a scoring system should lead the Tribunal to infer discrimination. There was no matrix used, but this is explained (see paragraph 36.62), and we did not conclude as C invites us to that the lack of a scoring system was somehow a departure from “GS usual practice”. There is insufficient evidence of this one way or the other and seems to rest solely on speculation and C’s belief that had a scoring system been used he would have been longlisted.

49.3 C’s argument made in submissions that he was treated less favourably than other candidates as he was not given an opportunity for an extended conversation with either GS or JV and that this is somehow something from which discrimination can be inferred does not hold up to scrutiny. As per our findings at paragraph 35.36, C spoke to both JV and GS albeit briefly. There was no restriction on C having conversations with GS, and JV suggested he do this when they spoke, but C did not take this further. In addition we conclude that the real value of such conversations before applications were submitted was to ensure that external candidates were familiar with R and its operations so they could hone their applications accordingly, something that R and MF as internal candidates did not have to contend with. JV’s acknowledgement that such conversations also tested some of the statements made in applications about roles and achievements etc (see paragraph 35.36), again was far less significant in relation to C (and to MF) because of JV’s direct knowledge of them and their work. We were also unable to make an inference of a discriminatory motive to JV’s decision by considering the strained conversation between C and JV on 10 August 2023 (see paragraph 35.110). Even if this conversation illustrated some tension, there is nothing to connect this with race or age and we accepted JV’s evidence about why he was irritated by C on this occasion.

49.4 The reasons put forward by R for its decision to select MF, QZ, KD, MD to go forward in the process and not to long list C as set out in our findings of fact at paragraphs 35.40-35.44 were persuasive and the Tribunal accepted these. In summary, R concluded on the advice of GS that C’s application was overly long and did not show sufficient breadth of experience, focusing largely on his medical roles. We understand that C felt that he had met the criteria and felt that there was a misunderstanding of what was involved in the medical leadership roles he had undertaken which led to his experience being undervalued. However this is C’s subjective view, no doubt based on his own strong opinions about the value of clinically led organisations, expressed on a number of occasions (see for example paragraphs 35.64 and 35.152). However this was not a view necessarily shared by JV or the selection panel who were looking for the applications to demonstrate a broader range of leadership skills and experience in areas such as partnership work, strategy and budgets, particularly relevant in the present climate involving integrated care boards (see paragraph 35.43). The longlisting panel determined that the other long listed candidates demonstrated this better than C and we see no real basis to suggest that this decision was in any way influenced by race or age.

49.5 C did not put to JV who was the decision maker in this matter, nor to SG who was involved in the process that the reason why they did not long list C was because of his race or age. Their denials that this was the case went unchallenged. This is a startling omission and whilst we accept that C was not professionally represented at the hearing, he had been throughout the proceedings and Ms Brooks, although not currently practising, was a former barrister with (we understand) knowledge and experience of employment law.

49.6 C’s own complaint in 9 January 2023 which mentioned the process (see paragraph 35.64 above) raised racial bias but also suggested that it was somehow linked to a negative attitude to medical leadership in the NHS (a theme that recurred throughout the evidence (see for example paragraph 35.68 above) and perhaps discloses the more significant reason why C believes he was not longlisted.

49.7 There were a significant number of different individuals involved in the process of longlisting, starting with those at GS who carried out the initial sift, EP who liaised with JV, and then the longlisting panel assembled by JV. We accept that JV was the ultimate decision maker, but his decision was subject to the scrutiny of at least 5 other people, all of whom reached the same conclusion that C’s application should not be longlisted. There were a diverse group of people with different ethnicities (see paragraph 35.42), and we can see no evidence of any discriminatory motive or undue influence of their input in the process.

49.8 The CEO selection process was subject to an external review by two external practitioners (including a solicitor) following an internal challenge made by C (see findings of fact at paragraphs 35.59-35.62) which involved a detailed examination of the process. This concluded that there was no discrimination, bias or blocking. C challenged the methodology used by the reviewers and suggested that one of the reviewers, IC, was working to assist R in meeting any possible legal challenge rather than genuinely examining the process, relying on JV’s comments about the value of the exercise of the panel looking at C’s revised application anew to see if their decision would have changed (see paragraph 35.59). C also pointed out that there were differences in wording between the original person specification and the wording included in the review (see paragraph 35.62 above). We did not accept that this showed that the review was in some way compromised or manipulated. R putting steps in place to meet a future legal challenge does not somehow invalidate the entire process which the Tribunal was satisfied was a genuine and thorough exercise.

49.9 There is no evidence to suggest that any other hypothetical employee in the same situation as the C who did not share his race, or age would have been treated differently. We have considered whether a white CMO who was under 55 who submitted the same application for CEO (our emphasis) would have been longlisted and we cannot see on the facts we have that this would have been the case. Our conclusion is that such a hypothetical comparator would also not have been longlisted.

[50]C has not proved primary facts from which the Tribunal could conclude that the complaint was because of race or age, we do not find that this shifts the burden of proof to explain the reason for the treatment. Even if the burden had shifted it, R would have discharged that burden as the reason why the decision was made (see paragraph 49.4 above). The decision not to longlist C was not because of C’s race or age group. This allegation of direct age and race discrimination is dismissed. Issue 2.2.2 - Delaying and/or reducing funding for the Community Transformation Program.

[51]We refer to our findings of fact at paragraph 35.69-35.73. Firstly in relation to delay, concerns were raised at several points about the delay to the programme and C himself acknowledges that there were some issues with this. There was also some reduction in funding for the Community Transformation Program when it was reduced by some £700,000 from the expected amount. C says he was less favourably treated in relation to this decision than GD and/or a hypothetical comparator occupying the same or a similar position to him and with similar qualifications and experience but who did not share his race and/or was not in his age group. GD does not appear to us to be a relevant comparator at all is not in a similar position to C in relation to decisions/delays to funding as R’s FD. More significantly we accept the submissions of R that it is hard to see how a decision in relation to funding of a project within R amounts (or indeed delays to that project for various reasons) could amount to detrimental treatment of C personally. C suggests that because he was the lead for this project, this reflected badly on him and was indeed one of the matters picked up as being a failure of performance on his behalf in the later MHPS process. Following the guidance in Shamoon as set out above, that in order for a disadvantage to qualify as a ‘detriment’, it must arise in the employment field in that the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. An unjustified sense of grievance will not be sufficient to constitute a detriment. Although C was concerned about reductions to funding and delay seemed to have not appreciated how much was left to spend, this was not detrimental treatment of C but as R submits, largely an operational matter.

[52]In any event, even if this was a detriment, C has failed to establish any connection at all between this decision which we conclude was entirely operational and either his race or age. C himself attributes many other reasons for the delay none of these related to his race or age (see paragraph 35.70. The decision in relation to funding came from NHSE not R, (see paragraphs 35.72-3). Whatever occurred in relation to the CT project was not done by reason of C’s race or age and we struggle to see how C can genuinely believe this to be the case. This allegation was not put to any of R’s witnesses nor was there evidence that this was not discriminatory challenged. In the 19 paragraphs of written submissions on this alleged detriment, C does not address once why he feels the decisions around delay and reduction in funding were done because of race or age despite going into significant detail on this topic. He talks of attempts to divert the project, being set up to fail and failures to receive satisfactory responses to questions raised but does not suggest this was connected to his race or age. This complaint is dismissed. Issue 2.2.3 - The Chief Strategy Officer referred to the Community Transformation Board project as having "failed", whilst it was still in the implementation phase.

[53]We refer to our findings of fact at paragraph 35.74 above. C has not established that KKW made the comment that the Community Transformation Board project had “failed”. However we were satisfied that KKW did express concerns about the progress of the project in particular in relation to the transformation of PCNs (see findings at paragraph 35.71 above). C suggests that this was done to undermine him and to obstruct progress of the CT Project. For similar reasons as are set out at paragraph 51 above it is difficult to see how expressing concern about a project’s progress can be seen as detrimental treatment of C personally. Moreover, C has failed to establish even if this could be seen as a detriment that such concerns would not have been expressed to any other manager in the same position as C who did not share C’s race or age group. For broadly similar reasons as are set out at paragraph 52 above, C has failed to show that there was any less favourable treatment nor that any concerns expressed by KKW were because of his race or his age. This complaint is dismissed. Issue 2.2.4 Failure to provide simple (paid for) estate refurbishment for a trials room for the Research and Innovation team which the Claimant led, causing loss of commercial trials and funding to support the team and the Research Strategy and demoralising the Team.

[54]We refer to our findings at paragraph 35.75 to 35.78 above. The refurbishment of the trials room did not take place, and we accept that such decision is likely to have demoralised the Research and Innovation Team and been frustrating to C. C did not show conclusively that this directly caused loss of commercial trials and funding, although we accept that the lack of this facility may well have limited the opportunities for income in this regard. Once again we conclude for similar reasons as are set out at paragraph 51 above in relation to the CT project funding that this could still not be seen as detrimental treatment of C personlly. GD does not appear to be an appropriate comparator at all as she was not in a similar situation to C save for his protected characteristics in relation to this matter. There is no reason to suggest that a white or younger person in exactly the same situation, would have had a different outcome. Further, C has failed to show any evidence at all to support his view that any of the decisions in relation to the refurbishment of the trials room had any connection with his race or his age group. This was not put to any of R's witnesses and no submissions were made linking any decisions made by GD to either of the protected characteristics. The burden of proof does not pass to R to explain why the decisions were made. In any event, we accepted GD’s clear explanation as to the reasons why this was not possible, being primarily connected initially to lack of resourcing in the facilities team (see paragraph 35.76) and subsequently prioritisation of other spending in the budget (see paragraph 35.77). There was no connection to race or C’s age group. This complaint is Issue 2.2.5 - Refusal of repeated requests for essential administrative support.

[55]Our findings of fact in relation to the provision of administrative support to the medical directorate and the requests for this are set out at paragraphs 35.79 to 35.82 above. It is clear that C was frustrated in his efforts to recruit additional staff to support SM and whilst this is largely an operational matter, we can see that this would have a direct impact on C as leader of this directorate such that it could be regarded as a detriment. However we cannot see how C is saying that this is less favourable treatment when compared to GD as we had no evidence of a scenario around funding where a different approach was applied being applicable to GD. What C does seem to be saying is that other divisions were treated more favourably in terms of the provision of administrative support. Whilst we could not make findings of that nature, even if it were correct, C has not evidenced that a hypothetical comparator not of his race and age group who was in all other respects in the same circumstances (i.e. a non-white and younger CMO) would have had the situation treated differently. There is no evidence at all of discrimination to shift the burden of proof to R to explain the reason for any treatment. C does not mention the issue of race or age when he first complains about this to MF (see paragraph 35.68) and in none of the extensive correspondence we saw on this issue. We were satisfied that the decision initially related to lack of clarity as to what was required (and how it would be organised) but ultimately from February 2023, there was simply no funding to support this recruitment and there was an informal and then formal recruitment freeze in place, preventing administrative roles being recruited into see paragraph 35.79). It appears that GD and other also tried to suggest solutions to resolve the clearly recognised pressure on SM by trying to divert existing resources and take tasks that might more readily sit elsewhere away from the medical directorate. C was reluctant to take this approach and was keen to retain the existing responsibilities within his realm of control which led to an impasse. However we conclude that there was no connection with either race or C’s age group to the matters now complained of. This complaint is Issue 2.2.6 - Undermining the Claimant’s RO role by standing down a DAW complaint against a doctor (RH) without reference to him as RO.

[56]We refer to our findings of fact at paragraphs 35.83 but as C has now confirmed that he has withdrawn this complaint, it is dismissed upon that withdrawal. Issue 2.2.7 - Pausing the Claimant’s application for the DCEO role.

[57]We refer to our findings of fact at paragraph 35.111. C was notified that the interview he had been invited to had been postponed. This decision was taken not only in respect of C but in respect of all others invited to interview. It is not possible therefore to conclude that there was any less favourable treatment at all. C had relied on GD as an actual comparator and this is not a suitable comparison, given that GD had not actually applied. However as the decision to postpone interviews applied to everyone who did apply, it was not less favourable treatment and the complaint therefore fails. We have considered whether there is any evidence to suggest that the reason why this step was taken had any connection with C’s race or age and conclude there is not. We accepted the explanation of MF as to why this decision was made as communicated to C at the time (see paragraph 35.111). This allegation of race of age discrimination was not put to MF during cross examination, and her denial went unchallenged. No evidence is proffered to indicate such a motive, either directly or by inference. This complaint fails and is Issue 2.2.8 - Raising and/or treating a complaint against the Claimant formally as a means of preventing his application for DCEO being progressed.

[58]We refer to our findings of fact at paragraphs 35.89 to 35.94 and 35.97 to 35.102. In the first instance, there are no facts upon which we can conclude that the raising and/or treating of complaints against C formally was used as a means of preventing C’s DCEO application being progressed. This was never put to any of R’s witnesses. C submitted his application for the DCEO role on 24 July 2023 (see paragraph 35.94) after the first three complaints were received by MF. The fourth complaint was received, and C was notified that the complaints would be investigated formally after D submitted his application for DCEO. However other than the proximity in dates, there is no evidence at all to suggest that the fact that C made a DCEO application had an impact on MF deciding to treat the complaints received (3 of which came before the DCEO application) formally. Moreover C’s application was progressed initially, and he was invited to interview by MF on 8 August 2023, after she had already decided to commission a formal FTSU investigation. This part of the allegation is not made out on the facts. We also accept the point made regarding the appropriateness of using GD as comparator when the allegation is linked to the DCEO application (as GD did not apply for the role).

[59]However we have considered whether the decision by MF made on or around 2 August 2023 to treat the complaints made about him by others related to the DB meeting formally was of itself less favourable treatment and whether it was because of either C’s race or age. In this regard C compares himself initially to GD and seems to be comparing his situation to that of GD’s in the way that a complaint made by him about GD’s conduct at the DB meeting on 17 August 2023 was treated. Our findings about that complaint and what was done about it are set out at paragraphs 35.113 to 35.115, 35.118 and 35.124.2. It is unclear what C is actually alleging was done differently here in relation to formality as both Complaints 1 to 4 against him and his DAW complaint against GD, were treated as formal complaints. Both were acknowledged and a decision was made that they would be investigated externally and overseen by SG. C’s complaint against GD was made and therefore handled under the auspices of the DAW policy. Complaints 1 to 4 were addressed under a different policy and we address this point below, but in terms of the formality of the way that the complaints were treated, we conclude that there was no less favourable treatment of C as regards to GD in terms of being a subject of complaints about the DB meeting. We could also find no facts to support the fact that Complaints 1 to 4 would have been treated differently and not formally for someone in exactly the same position as C who was white and younger than C.

[60]In any event, there is no evidential basis to support the inference that this decision to formally investigate was because of race or age. Despite being central to the claims before us, this was never put to MF and her denial that her decision was because of race or age was not challenged at all. MF’s explanation as to why a formal investigation was chosen is set out clearly and lucidly (see findings at paragraph 35.98 and 35.106) we entirely accept. C clearly disagreed with her reasons, but there is nothing to suggest that these were not the actual and genuine reasons. The burden of proof does not pass to R to explain why the decisions were made. These were not related to age or race. This complaint is Issue 2.2.9 - Commencing and/or considering a FTSU complaint lodged against the Claimant (rather than treating any complaint as a grievance).

[61]We refer again to our findings of fact at paragraphs 35.89 to 35.94 and 35.97 to 35.102. This complaint is related to the one made at issue 2.2.8 above but focuses more on the use of the FTSU policy to conduct the investigations into this complaint rather than investigating the complaints under R’s grievance policy. The essence of this complaint is that R’s grievance procedure provides that all grievances must be dealt with informally in the first instance (see paragraph 35.10) and thus by deciding to deal with Complaints 1-4 under the FTSU policy rather than the Grievance policy, this denied C the opportunity to have the matter resolved informally.

[62]Firstly in relation to whether this amounts to less favourable treatment, C compares himself firstly to GD and for the same reasons as are set out above at paragraph 59 in relation to issue 2.2.8, it is hard to see what the less favourable treatment is. The complaint that C made against GD in relation to the DB meeting was also not addressed under the Grievance policy, nor was there an attempt to resolve it informally. In relation to a hypothetical comparator, we can see no basis to conclude that someone in the same circumstances as C but who was not of his race and age group, would have had Complaints 1 to 4 treated as individual grievances.

[63]We have also gone on to consider whether any decision to treat the complaints against C under the FTSU policy rather than the Grievance policy had any connection to C’s race or age group. We conclude that C has not established a prima facie case of discrimination which would transfer the burden of proof to R to show that the treatment was in no sense whatsoever because of race or age. We accept the submissions of R that no attempt was made in cross examination to establish that MF made the decision because of race and age. Her denial of a discriminatory motive in evidence was not challenged. We also accepted the explanation of MF as to why she felt that an informal resolution was not appropriate (see paragraph 35.99), namely that it was the serious nature of the concerns about a member of the executive board. We also accepted that because 3 of the 4 complainants had indicated that they wished to remain confidential, it is unlikely that the Grievance policy was appropriate as there does not appear to be any provision for confidential or anonymous concerns to be raised against individuals. Even if the burden of proof had passed to R, we conclude that it would be satisfied by this explanation. The decision to address the complaints received under the FTSU policy was not because of C’s race or age, and this Issue 2.2.10 - Commencing a Maintaining High Professional Standards investigation as part of a disciplinary process against the Claimant.

[64]We refer to our findings of fact at paragraphs 35.136 to 35.145 about the background and decision of R to commence a MHPS investigation. C compares himself either to GD or a hypothetical comparator in alleging less favourable treatment. Although not articulated we have assumed the basis of comparison in relation to GD is about the MHPS investigation having been commenced in relation to him but not GD (presumably on the basis that both were the subject of complaints following the DB meeting). However the Tribunal considered that there was a particular difference in circumstances between C’s position and the position of GD by the time the decision to commence an MHPS investigation was made and that is that by then not only had there been internal complaints but R had been informed of external complaints about C made to NHSE. We were satisfied that the trigger for the decision to instigate the MHPS investigation was the information provided to R at the telephone call with NHSE on 2 October 2023 (see paragraph 35.136). C points to the absence of notes of this meeting being disclosed and asks the Tribunal to draw inferences of discrimination, but as there were a number of contemporaneous e mails following this meeting (see paragraphs 35.138 to 35.139), the absence of notes is not significant. This meeting set in train a set of events which led to the LDMG being set up at the express instruction of NHSE (see paragraph 35.137). That was done and the LDMG met and recommended that the MHPS investigation be commenced (see paragraph 35.144). Following that recommendation, R commenced that MHPS investigation and notified C that this had taken place. There is no evidence at all to suggest that an individual in the same circumstances as C in this regard (i.e. in relation to whom, NHSE had received complaints leading to them instructing R to set up an LDMG to consider whether an investigation was required) who was of a different race and age group would have been treated any differently. We conclude the opposite and find that it is highly likely had the same set of circumstances arisen in relation to a hypothetical comparator, the same action would have been taken.

[65]In any event, the reason why these steps were taken by R and the decided to commence an MHPS investigation are incontrovertibly clear. R was informed of external complaints by NHSE; instructed by NHSE to set up a LDMG to consider whether an investigation was required (which it did) and then put into effect the decision made by that LDMG that a formal investigation under the MHPS was required. NHSE is a separate entity to R. The LDMG was made up of a number of different individuals including those external to R There is no evidence at all to suggest that any of the decision makers involved in this detailed sequence of events was in any way influenced by C’s race or age. Once NHSE had recommended a LDMG be set up and that LDMG had made the decision it did, it is difficult to anticipate R being able to take any other decision that to commence the MHPS investigation as that body recommended. This was clearly the reason for the treatment, and the complaint of direct race and age discrimination fails. Issue 2.2.11 - Failing to inform the Claimant of the concerns raised by colleagues other detail of the concerns).

[66]We refer to our findings of fact at paragraphs 35.101-35.102; 35.106- 35.107 and 35.127. There is no dispute that C was first notified of concerns/complaints raised by colleagues on 2 August 2023 and whilst he was told these related to behaviours at the DB meeting (and generally), he was not told any further detail at this time, nor whom complaints had been received from. We are satisfied that this was detrimental to C in that (other than the DB meeting which was identified) he was unaware of the precise nature of the matters which were being investigated. This was no doubt distressing and concerning. In this regard C compares himself once again to GD and to a hypothetical comparator. In relation to GD it is assumed that C is suggesting that he was treated less favourably than her in relation to the information she was provided about complaints received about her. C’s DAW complaint about GD was made on 17 August 2023 (see paragraph 35.115) and it appears that GD was informed of this by DD in April 2024. It does not appear to the Tribunal that there was any less favourable treatment of GD at all as she was not given details of the complaint either. In any event, we did not find GD to be in the same position as C at all. By the time C was informed of the complaints, 4 complaints had been received from different individuals, and a decision had been made to investigate these under FTSU for the reasons we have already dealt with. As far as we are aware, C’s DAW complaint was the only one made against GD (other than the initial e mail from SA which included a statement that she did not wish to take this any further). What then happened to this complaint was not explored further by either of the parties. We concluded that an individual in C’s position who had received the complaints made against him who was not of his race and age would not have been treated any differently at all in relation to what was shared.

[67]In any event, the Tribunal has concluded that C has not presented any evidence at all to suggest that the decision not to provide him with further detail of the complaints received from colleagues was because of C’s race or age. C did not suggest to MF in cross examination that she was motivated by these factors when she decided not to share details with him. Her evidence that C’s race or age did not play a part was unchallenged. The burden of proof does not pass to R to explain why this was not done. In any event, we accepted MF’s clear explanation as to the reasons why (paragraph 35.101) which were communicated to C on 6 August 2023 (paragraph 35.106). The reasons were genuine and logical and whilst C was clearly concerned to have been left ‘in the dark’, we concluded that R was in a difficult position, given that some of the concerns had been raised on a confidential basis and at the time C was notified, consent to sharing the identity of complainants with him had not been obtained. The reason why details were not shared was not C’s race or age. This complaint of direct age and race discrimination is dismissed. Issue 2.2.12 - Failing to inform the Claimant of sufficient details of the complaints

[68]We refer to our findings of fact at paragraphs 35.146-35.147. C was not informed of the identity of the complainants to NHSE and it is clear that those complaints were lacking in detail. We were satisfied that this was detrimental to C and again acknowledge it was hugely distressing for him. However when considering whether there was any less favourable treatment, we firstly cannot see any basis for concluding that C was treated less favourably than GD or a hypothetical comparator in this regard. GD was not the subject of complaints received by NHSE and communicated to R (as far as the Tribunal is aware) and we can see no basis to conclude that anyone else in a similar situation to C (but not of his race or age) would have been treated in a different or more favourable manner relating to the information shared with him. We can see no basis at all to conclude that the reason why C was not informed of this detail of the external NHSE complaints was in any way influenced by race or age. The first and very obvious reason why C was not provided with this detail was because R itself did not have this detail (see paragraphs 35.136 -35.141). MF had pushed NHSE to provide further clarity at the outset (paragraph 35.138) but other than the general nature of concerns and some detail, the identity of the complainants to NHSE was not shared with R, making it impossible to share with C, even if they had wished to do this. Secondly, once again, C did not put to MF that she had been influenced by his race and age in deciding not to share this detail, nor was her denial on this challenged. We can see no basis at all to conclude that race or age played any part. The burden of proof has not shifted to R to explain this decision. We were satisfied it was not because of race or age, and this complaint is dismissed. Issue 2.2.13 - Removing or suspending the Claimant's duties as RO and CMO.

[69]We refer to our findings of fact at paragraphs 35.9, 35.137, 35.141, 35.144-35.146 and 35.148. We acknowledge that there are two aspects of this complaint, the restriction of C’s RO duties and the restriction of C’s duties as R’s CMO. The decision of R to restrict C’s duties began with the express instruction from NHSE to set up an LDMG to decide on two issues, the second of which being whether “the RO should undertake RO duties whilst any investigation(s) into the concerns was ongoing. This was considered by the LDMG who determined that C’s clinical leadership duties should be restricted during the investigation. Upon this being communicated to JS, she determined that the RO duties should be restricted but that the decision as to restriction of CMO duties was a matter for R. The restriction of CMO duties was then a decision made by MF. For very similar reasons as are set out in paragraph 64 and 65 above in relation to the complaint at 2.2.10, we conclude that this decision was not because of C’s race of age. C compares himself to GD and to a hypothetical comparator. We cannot see that GD is an appropriate comparator, for similar reasons as are set out above, but also because the very specific circumstances around restriction of the RO role in particular, had no relevance to her as she was not in an RO (or indeed in any medical role). We are also satisfied that any other individual in the same situation as C who was not the same race or age would have been treated exactly the same. The reason why C was restricted from his RO duties was because the HLRO had determined this to be the case following the decision of the LDMG and instructed C as such. The reason why C was restricted as CMO was as set out at paragraph 35.143. It also stemmed from the decision of the LDMG, although ultimately made by MF. We accept R’s submissions that the decision was reasonably, appropriate and proportionate. It was never suggested to MF that her part in the decision making was influenced by age or race and to suggest that all the various people involved in this decision including the HLRO, JS and the members of the LDMG panel had discriminatory motives is somewhat far-fetched. This complaint of direct race and age discrimination is dismissed. Issue 2.2.14 - Escalating some complaints to external investigation under FTSU without attempting informal resolution.

[70]This is essentially the same complaint as is made at 2.2.8 above and for the same reasons as are set out at paragraphs 59 & 60 this complaint is Issue 2.2.15 - Escalating the complaints to a MHPS investigation.

[71]This is essentially the same complaint as is made at 2.2.10 above and for the same reasons as are set out at paragraphs 64 and 65 this complaint is dismissed. Issue 2.2.16 - Failing to follow the Respondent's polices in respect of grievances.

[72]C does not explain how it says that R failed to follow its Grievance policy. C did not raise a grievance and neither did any of the other complainants involved. Our understanding of this complaint from paragraph 196 of C’s submissions, is that C is complaining here again about the choice of policy and the failure to attempt to resolve matters informally. C refers us to the fact that the Grievance Policy has a compulsory informal stage (see our findings of fact at paragraph 35.10). This is essentially the same complaint as is made at 2.2.8 and 2.2.9 above and for the same reasons as are set out at paragraphs 59 to 60 this complaint is dismissed. Issue 2.2.17 - Failing to follow the National guidance regarding complaints against Responsible Officers in respect of the Claimant.

[73]We refer firstly to our findings of fact at paragraph 35.9. C relies on the part of Framework for managing concerns about Responsible Officers who have a prescribed connection to a higher level Responsible Officer of NHS England which states that the LDMG should make its decision “taking into account all that is known in relation to the RO and designated body”. The essence of this complaint is that R did not provide the LDMG with details of C’s 11 year history as an RO with no complaints and that letters that C had written to AG (including the one sent to AG on 30 August 2023 with C’s allegation that 2 individuals were behind the FTSU concerns and were trying to bring him down – see paragraph 35.122.5) were also not included. He further complains that the letters written by his solicitors (see paragraphs 35.124.4; 35.129-30) were not considered. The Tribunal does not accept this particular reading of the National guidance and we conclude that it cannot be the case that the reference to “all that is known in relation to the RO” means that the LDMG must at this initial stage of deciding whether to commence an investigation, be in possession of all the facts about C’s career history. The National guidance makes it clear that this is the “Initial Assessment Phase” (our emphasis). The LDMG’s role was to determine in light of the complaints that had clearly been received whether an investigation was required at all and whether the RO should carry on with his duties. The role of the LDMG is not to conduct a full investigation into the concerns and complaints themselves. That investigation would come later, which of course may well include a detailed consideration of who had made complaints and why this was done, and a consideration as to whether C’s past appraisal record and employment history had any relevance. It would be inappropriate for this level of investigation to be conducted at this early stage when C himself had not been informed of the concerns. We did not find that the selection of documents to put before the LDMG was done with any ulterior motive (see paragraph 35.139). We conclude that R did not fail to follow the National guidance regarding complaints against Responsible Officers in respect of the Claimant and therefore this complaint is not made out on the facts.

[74]In any event, there is simply no evidence at all and we can make no inference on the facts we have found to suggest that anything that was done by R in setting up the LDMG or its decision making was in any way motivated by race or age. Again this allegation was not put to any of R’s witnesses. This complaint is dismissed. Issue 2.2.18 - Failing to follow the Respondent's and NHS FTSU policy.

[75]We have already addressed elsewhere the issue of the choice of policy (see paragraphs 59 and 60 in relation to issue 2.2.8). The essence of this complaint appears to be that once it had determined the FTSU policy was appropriate, that firstly R did not follow the wider NHS FTSU policy (detailed extracts from such is set out at paragraph 35.4). C contends that this policy states that investigations will only take place under FTSU if they do not fall within an existing HR process. We do not agree that the national policy even says that, as it states that the matter being raised under FTSU “may be best considered under a specific existing policy/process, for example our process for dealing with bullying and harassment” and goes on to state that if the matter raised “does not fall into an HR or patient safety incident process” the FTSU policy is appropriate. This envisages that there is a matter of discretion as to which policy is appropriate for the particular concern. It does not go as far as C suggests and is not that prescriptive. In any event, whilst the wider NHS policy has some relevance, it is R’s own FTSU policy that is the most directly applicable. C also suggests that R failed to follow its own policy (see detailed extracts set out at paragraph 35.4) in that the policy;75.1 provides that R may decide that a concern is best looked at under another process (e.g. bullying and harassment) and R did not do this;

75.2 provides that informal resolution should be considered and R did not do this;

75.3 does not allow for a ‘formal’ investigation which R decided was required;

75.4 provides that the identity of the investigator must be agreed by all parties which it was not;

75.5 does not provide that individuals who raise complaints can remain anonymous as of right and can proceed under a policy of their choosing which is what R did in this case; and

75.6 provides at section 5.12 that wherever possible a single investigation will be carried out and that this would be objective and evidence based, which it is suggested was not the sort of investigation envisaged by R in relation to C.

[76]Dealing with each in turn, in relation to paragraph 75.1, this is complaint about choice of policy is essentially the same complaint as made at issue 2.2.9 and so for the same reasons as are set out at paragraphs 61-63 this complaint is not well founded. In relation 75.2, the issue of informal resolution is already addressed in relation to the complaint at issue at 2.2.8 above and for the same reasons as are set out at paragraphs 59 and 60 it is not well founded. The complaint at 75.3 about an investigation being ‘formal’, presumably as opposed to being ‘informal’ is not well founded for the same reasons. We were not satisfied that there was a prohibition on any formality of investigation in the FTSU policy in any event. The investigation is stated as needing to be proportionate but does not state that it cannot be formal, which for the circumstances involving the complaints received by R related to C was clearly appropriate. As to the identity of the investigator being agreed between all parties (45.4) above, the FTSU policy provides that. “Investigations should involve someone suitably independent, within whom all parties can agree on (usually from a different part of the organisation)”; and C interprets that to mean that it was necessary for him to agree on the identity of the investigator appointed to investigate the concerns raised that relate to him. We do not in fact believe this was the intention of the provision and it is not clear what the reference to ‘parties’ actually means in the context of a FTSU complaint. The FTSU policy is as C acknowledges primarily about the raising of concerns and how R addresses those concerns. It does not go on to give additional rights or impose obligations to any individuals who may be involved or related to complaints raised. Of course as a follow on from a FTSU complaint C may then decide to take some sort of steps in relation to an individual who has been complained against (e.g. a further disciplinary investigation if potential conduct issues are disclosed) but at the stage of the FTSU investigation, the focus must be on investigating the matter raised. It seems highly unlikely that in circumstances such as those before the Tribunal, that an employer would be required to agree the identity of a proposed investigator with someone who is the subject of a concern being raised. Concerns may well involve not just one but numerous individuals and to suggest that each person involved would have to agree who investigates, is simply impracticable and would make investigations difficult to progress. Similarly in relation to point 75.6, a single investigation is clearly the preferred approach, but is not absolutely required, as indicated by the use of the words “wherever possible”, again leaving an element of discretion as to how R chooses to address the matter.

[77]The issue of anonymity is addressed to an extent at paragraph 68 above in relation to the complaint at issue 2.1.12 about not providing the details of who had made complaints about him. This complaint though appears to address the wider issue of whether R was able to proceed to an investigation under FTSU on the basis of anonymous complaints. During the hearing, there was much reference to concerns being either anonymous or confidential and in some cases the terms became conflated. In relation to the complaints raised to R, some of them were raised on a confidential basis i.e. the identity of the complainant was known to R but was made on the basis that at that stage the identity of the complainant would not be disclosed to C (see paragraphs 35.91 for example). In a sense, they were anonymous from C’s perspective if not R’s. Other complaints were raised on a fully anonymous basis in that the identity of the complainant was not known to R at all (see paragraph 35.136). R’s FTSU policy clearly allows both confidential and anonymous reporting of concerns (see paragraph 35.4) although does make it clear that a concern being reported anonymously may make it harder to investigate and provide feedback. C asks the Tribunal to consider the Linfood and Ramsey cases and suggests that these mean that in this case, R was required to have investigated whether anonymous complainants genuinely had fear of reprisals before allowing them to raise concerns confidentially or at least going on to investigate those concerns. We do not accept this interpretation of this caselaw. For a start these authorities deal with the use of anonymous statements and how anonymous informants should be treated when considering the fairness of a disciplinary investigation for an unfair dismissal claim. R has not dismissed C and at the stage that the Tribunal was considering the matter had not in fact commenced disciplinary proceedings during which it proposed that anonymous complaints would be relied upon. It was proposing to commence an investigation (initially under its FTSU policy and then under the MHPS policy) and that investigation was proposing to investigate concerns raised anonymously. However at the time we were considering that investigation had not actually started. Certainly in relation to internal complaints, when R was communicating with complainants, it made it clear to them that raising concerns confidentially or anonymously could impact the ability of an investigator to fully explore and reach a conclusion and for R to take any action (see paragraph 35.107). C suggests this betrays R’s intention to discipline C no matter the outcome of the investigation. We do not accept this interpretation but rather it is R informing complainants that whilst confidential and anonymous reports are permitted, that this may affect the outcome (with the implication being that R may place less weight on such reports) as is set out clearly in the FTSU policy itself.

[78]We were not satisfied that there were any breaches of R’s or indeed the wider NHSE FTSU policy, so the allegation is not made out on the facts. In addition, there is no evidence to suggest that any decision in relation to how the FTSU policy was applied was because of C’s race or age. The comparison with GD is not appropriate as C’s complaint against her was not made under the FTSU policy but the DAW policy. We cannot see how it could be said that an individual in the same situation as C in relation to the FTSU situation who was not the same race or age group would have been treated differently. We accept R’s submission that there was no causal link between any alleged procedural failing and C’s protected characteristic. The denial of a discriminatory motive by R’s witnesses was not challenged and it was not put to them that they were acting in a discriminatory way when applying the FTSU policy as they did. This complaint of direct race and age discrimination is not well founded and is dismissed. Issue 2.2.19 - Failing to attempt to resolve the issue informally, specifically but

[79]This is essentially the same complaint as is made at 2.2.8 above and for the same reasons as are set out at paragraphs 59 and 60 this complaint is dismissed. It is unclear what the reference to using the NEDs to negotiate relates to but conclude that this is a reference to the involvement of AG which we address a paragraph 81 below in relation to issue 2.2.21. Issue 2.2.20 - Failing to attempt to resolve the issue informally, specifically but

[80]This is a duplicate of issue 2.2.19 and is dismissed for the same reasons as are set out in paragraph 79 above. Issue 2.2.21 - Failing to follow National Guardian Office (NGO) Guidance on

[81]The essence of this complaint is that R did not appoint AG to oversee the FTSU investigation and that AG did not take the lead in determining whether sufficient attempts had been made to resolve a FTSU concern involving a board member. This is something that is included in the Supplementary information on Freedom to Speak Up in NHS trusts and NHS Foundation Trusts dated July 2019 published by NHSE and NHSEI together with the National Guardian’s Office (see paragraph 35.6 above). MF acknowledged in cross examination that she did not follow this guidance (see paragraph 35.103). The alleged detrimental treatment is that AG was not involved to determine whether any of the matters could be resolved informally before the decision was taken to undertake a FTSU investigation. This was in fact determined by MF herself (see paragraph 35.99 above). Whilst C clearly regarded this as a detriment and we accept that it just about was, it is difficult to see how the involvement of AG at that earlier stage would in fact have made any difference. MF believed that AG was on holiday at the time the initial decision to commence a FTSU investigation was made. AG was then subsequently appointed as commissioning manager for the FTSU investigation (see paragraph 35.132) and confirmed her view on 15 September 2023 that she did not believe it was possible for the complaints against C to have been resolved informally (see paragraph 35.133).

[82]However, even accepting that this was detrimental to C, we are not satisfied that there was any less favourable treatment of C in this regard. In his pleadings C identified GD as a comparator and she is not an appropriate comparator as no FTSU process was applicable to the complaint made against her (which was submitted under DAW). In submissions, C’s case was that he was less favourably treated in relation to three of the complainants (JP, LMcG and AS) suggesting that all protections of FTSU were given to them and not him. They are clearly in an entirely different set of circumstances as complainants. In addition, whilst not taking away from the importance of the document C relies upon, it is supplementary guidance (our emphasis) on the application of a FTSU process and the roles of Board members, rather than a document containing actual legal responsibilities of employers or indeed rights of employees. The suggestion made on a number of occasions by C in his correspondence that he had a ‘right’ to have the matter referred to AG (see for example paragraph 35.129) has no real foundation.

[83]Also it is clear to us that the reason why AG was not included at an earlier stage or initially appointed to oversee the investigation was not because of either race or age. MF did not initially inform AG because she believed she was on holiday and appeared to be unaware of the NGO guidance at the time in relation to AG acting to take the lead to ensure that sufficient attempts had been made to resolve the matter informally. It was JV who appointed SG as the initial commissioning manager of the FTSU investigation (see paragraph 35.119) and his explanation as to why this was done was entirely convincing and reasonable. It was not put to either MF or JV that not involving AG in this matter was because of race and age, and their denial of such a motivation was not challenged. This decision was not because of race or age, and the complaint fails. Issue 2.2.22 - Appointing an individual who was not impartial to consider the Claimant's DAW complaints. The individual was the Chair's mentee, SG.

[84]We refer to our findings of fact at paragraph 35.119. JV made the decision to appoint SG. C submitted that SG was not impartial due to her previous involvement in the CEO longlisting process (see paragraphs 35.42-44) and stated that she was conflicted, biased and unsympathetic towards him. The allegation in relation to C being impartial due to her being JV’s mentee does not appear to be pursued at submission (and we found that she was not his mentee at paragraph 35.121). In relation to the particular issue of her involvement in an earlier recruitment exercise, this of itself does not in our view amount to a sufficient conflict of interest to prevent her acting as the commissioning manager for the investigation into C’s DAW complaints. The fact that C subsequently complained about this process being discriminatory is perhaps more relevant to this allegation as it is made as a complaint of victimisation (see below) but C suggests that all of this meant she was unsuitable to carry out the role of commissioning manager of his DAW complaints. However the decision of her suitability or otherwise for this role is not the key question we have to consider. The claim before this Tribunal under consideration here is whether JV’s decision to appoint SG was less favourable treatment because of race or age. In that regard, C has not established any evidential basis to suggest that this decision was discriminatory which would transfer the burden of proof to R to explain the decision. C did not put to JV that he was motivated by race or C’s age group in making this appointment, and his denial was not challenged. In reality C appeared to object to SG on the basis that he felt she was inexperienced and not capable of carrying out the task and again repeats the point in submission that SG did not appear to ‘understand’ the role of a commissioning manager. In our view SG’s role as Chair of the People Committee and Chair of R’s EDI committee made her an appropriate choice for this role. Acting as a commissioning manager is not a truly operational role as R submits, and we preferred SG’s view that it is largely to oversee the investigation carried out by someone else and make recommendations as to next steps once the investigation is carried out. We entirely accepted R’s explanation (given by JV) as to the reason why SG was appointed (see paragraph 35.119), which was largely due to her availability and experience. This was not because of race or age, and this complaint fails. Issue 2.2.23 - Appointing an individual who was not impartial to manage the complaints made against the Claimant. The individual was the Chair's mentee, SG.

[85]Whilst this allegation relates to the appointment of SG as commissioning manager of the FTSU complaints and not the DAW complaints, for the same reasons as are set out at paragraph 84 above in relation to the allegation at issue 2.2.22, this complaint is dismissed. Issue2.2.24 - The Chair persisting in appointing SG in relation to matters pertaining to the Claimant's employment despite the Claimant's representations

[86]This complaint appears to be connected very closely to the complaints made at issues 2.2.22 and issues 2.2.23 above but also extends to the continuation of the appointment of SG following objections being raised by C (see paragraphs 35.121-3; 35.124.3-4; 35.125-6 and 35.129-30). There was subsequently a decision to change the commissioning manager of the FTSU concerns to AG (see paragraph 35.132). However ultimately, we conclude that the reason why SG was retained despite C’s representations on conflict and impartiality, was that R did not agree with these representations for the same reasons as are set out in paragraph 84 above in relation to the allegation at issue 2.2.22. The suggestion that race or age played a part was not put to R’s witnesses, nor was their denial that it did challenged. The decision to retain SG in this role was not because of race or age and this complaint is dismissed. Issue 2.2.25 - The requirement that the Claimant has to report to the interim CMO, initially a cardiologist and subsequently a DCMO from another trust seconded to the interim CMO role, every week about his clinical work.

[87]We refer to our findings of fact at paragraphs 35.145. It is not clear how C suggests this is less favourable treatment in relation to GD who was not in a comparable position at all. It is clear that once C’s duties had been restricted, an interim CMO was required to be appointed immediately. JHo was appointed on a brief basis until the secondment of JSr was put in place. We accepted the explanation of MF as to why she put in place the requirement that C attend review meetings with the interim CMO to address any potential concerns relating to clinical leadership and also as a supportive measure to C. It was not suggested to MF that she was motivated by race or C’s age group when making this decision and her denial of this motive was never challenged. We consider that someone in C’s position at that time who was not of C’s rage or age group would have been treated in the same manner. Whilst C was particularly upset at having to potentially discuss his clinical practice with another doctor (particularly one not in his speciality) and we can understand that reservation, this decision was a proportionate response to the issue and was not tainted by a discriminatory motive. This complaint of direct race and age discrimination is not well founded. Issue 2.2.26 - Failing to progress the Claimant’s DAW complaints.

[88]We refer to our findings of fact at paragraphs 35.118-20; and 35.124.2. Upon receipt of C’s DAW complaint against MF and GD, it was acknowledged promptly, and C was informed that SG had been appointed as commissioning manager and an external investigation would be commissioned and external HR support provided. SG then contacted C to confirm her appointment and next steps. C raised repeated objections to this process and failed to engage in this process but there was no failure to progress these DAW complaints by R at all. Following C’s later DAW complaint against JV on 18 September 2023, this was acknowledged by AG and subsequently incorporated in the existing DAW complaints investigation process to be overseen by SG (see paragraph 35.135). All DAW complaints were then incorporated into the external investigation to be carried out DD (see paragraphs 35.147) which was underway at the time of presentation of C’s Tribunal claim in November 2023. We were not satisfied that there was any failure to progress C’s DAW complaints which given the very many issues that had arisen and were arising at the time, were progressed as promptly as is

[89]In addition, were not able to identify any less favourable treatment in this regard in relation to GD or any hypothetical comparator. GD had also made a DAW complaint but as we found at paragraph 35.131, this was also acknowledged at the time and a commissioning manager appointed. It further appears that this was not progressed further until May 2024 some 9 months later. There was no less favourable treatment of C in this regard. We were unable to conclude that a hypothetical comparator who was not of C’s race or age group would have been treated in a more favourable manner. It was never put to any of R’s witnesses that anything done in relation to C’s DAW complaints was racially motivated or done because of C’s age. This complaint is not well founded and is dismissed. Issue 2.2.27 - The Respondent's CFO would shake her head in meetings in disagreement when the Claimant spoke.

[90]This complaint is dismissed upon withdrawal. Issue 2.2.28 - Notifying the Claimant of “New Concerns” on 20th December 2023.

[91]We refer to our findings of fact at paragraphs 35.151-2 and 35.156-8. The essence of C’s complaint in this regard was that raising the matter of his use of RIO was a ‘micro-humiliation’ and was about ‘cutting [him] down to size and not treating him as a very senior executive”. In relation to his statement at the MAC meeting, C suggested that he had “infuriated the ‘clique” and the reason it was raised was not because of a breach of confidence or undermining R but was because his statement was so well received and because he indicated he would stay and fight. Once again, C did not put to any of R’s witnesses in cross examination that raising these matters with him was done because of his race or age group. AW’s denial that this was the case went unchallenged. R as C’s employer is entitled to raise matters relating to work with him and in relation to RIO it appears that this was not pursued any further with him once he provided his explanation. In relation to the MAC speech, we conclude that R had legitimate concerns about the way in which R was communicating to its employees and we understand the position of R that C was seeking to ferment unrest amongst the medical workforce, particularly when some of the inflammatory language used which is set out at paragraph 35.151-2. The reason why these concerns were notified to C were not because of race or age. This complaint is not well founded and is dismissed. Issue 2.2.29 - Setting vague, non-specific and personal Terms of Reference for

[92]We refer to our findings of fact at paragraphs 35.160-66. We conclude that some of the matters set out in this TOR were indeed vague and nonspecific, in particular in relation to the concerns received from NHSE. The reference to MW’s behaviour more generally (rather than the particular issue of the DB meeting where detail is given and emails provided) is by its nature non-specific. Some of the other 14 matters listed at paragraphs a to n of part B of the TOR are indeed vague and refer to types of general behaviour (e.g. being dismissive etc) rather than particular and specific examples or incidents of behaviour. We also accept that receiving a TOR of this nature was also likely to be detrimental to C, as it left him with no information about the full nature of allegations that were to be investigated.

[93]However we can see no evidence whatsoever that the way these TOR were drafted was less favourable treatment of C on the grounds of race or age. GD is not an appropriate comparator in this regard as at this stage, the investigation had moved beyond the particular meeting which she attended which also led to a complaint being made against her conduct. We can see no basis to conclude that any other individual in these highly unusual and somewhat unique circumstances, but who was not the same race and age group as C would have been treated any differently at all. The allegation that the way the TOR were drafted was discriminatory was not put to anyone at R in cross examination. A number of individuals at R appear to have been involved in putting the TOR together including the members of the LDMG, DD, JJ, KS and JS at NHSE. Members of the LDMG themselves identified that there was no detail to a number of the allegations (see paragraph 35.161) and DD set out his view that it was not possible to be more specific given that a majority of the complainants had asked to remain anonymous and to include further detail risked identifying them. This was highly insightful as to the reason why the TOR ended up as they did. The issue of confidentiality/anonymity meant that at this initial stage, R did not include any specifics of complaints. This is the reason why the TOR were vague and non-specific, not race of age. This complaint is therefore not well founded and fails. (3) Victimisation - Equality Act, section 27:

[94]It was accepted by R that C did three protected acts which are set out at paragraphs 3.1.1 of the List of Issues above. These took place on 15 November 2022 when C raised concerns with JV, AW and AG about the CEO selection process, and a criteria of CVs not being ‘too medical’ being likely to be race discrimination (‘PA1’) which we address at paragraphs 35.55-7 above; on 17 August 2023 when C submitted his first DAW complaint ((‘PA2’), as set out at paragraphs 35.113-5 above and on 18 September 2023 when C submitted his second DAW complaint (‘PA3’) - see paragraph 35.135 above. C makes 27 allegations of detrimental treatment which he says took place because of one or more of PA1, PA2 or PA3. The majority of these factual allegations are also brought as complaints of direct race and age discrimination (which we have addressed above) and protected disclosure detriment (which we address below). We make the same point as above about the discrimination claim which equally applies to the victimisation complaints, that C gave evidence, cross examined and made submissions about the way in which C believed that he had been subjected to detrimental treatment and that R had not followed process. Very little of that was focused on providing evidence to show that any of this was because of any complaints of discrimination having been made. Again the underlying narrative was that the senior employees of R were all against C and were trying to get him out of R, but C did not focus on explaining or showing the connection to his earlier comments. R’s witnesses denied the connection and were not challenged on this denial. C’s belief that there has been unreasonable treatment was never particularly linked to earlier complaints having been made and again there was a failure of C to put his case. We also bear in mind that the test for victimisation is not a ‘but for’ but a ‘reason why’ test (see Khan and Dunn above). Some of the complaints about the way process was applied clearly flow from the fact that C had done a protected act as they relate to the way that protected act was investigated and so on. However we must examine the mental processes of those involved in the relevant decision making to determine whether the protected act was the reason why they acted as they did

[95]There will inevitably be some repetition in our reasoning and we do not repeat all of it in full where it has already been addressed, but where a particular issue relevant to the victimisation complaint but not other complaints has arisen, we have addressed it separately. For each detriment relied upon we had to determine whether R subjected C to the detriment complained of (which is set out at paragraphs 3.2.1 to 3.2.27 of the List of Issues above) and then go on to decide whether any of this was because of the protected act. Whilst unlike direct discrimination, no comparison is required, the provisions on the two-stage burden of proof set out at Section 136 EqA apply in victimisation cases. Once a claimant establishes a prima facie case of victimisation, the burden of proof shifts to the respondent to show that the contravention did not occur. To discharge the burden of proof, there must be cogent evidence that the treatment was in ‘no sense whatsoever’ because of the protected act. We set out below our conclusions on these matters for each allegation listed in the List of Issues with reference to each paragraph number whether the allegation is listed: Issue 3.2.1 - Delaying and/or reducing funding for the Community Transformation Program

[96]C says this was detrimental treatment and was done because of PA1. We refer to our findings of fact at paragraphs 35.69-73 above and our conclusions on this being detrimental treatment at paragraph 51 above. For the same reasons, we conclude that this was not detrimental treatment of C but a purely operational matter. In any event, C has not shown any connection at all between these matters of funding and delay and the fact that he complained about discrimination on 15 November 2022 to JV, AW and AG about the CEO selection process. For similar reasons as are set out in paragraph 52 above can see no evidential connection at all between the two matters and the denial of GD and KKW (who appear to be alleged to be behind the decision) that they were even aware of PA1 was not challenged at all. If they were unaware of it, this cannot have been the reason. The decision in relation to funding came from NHSE not R, (see paragraphs 35.72-3). Whatever occurred in relation to the CT project was not because of PA1. This complaint is Issue 3.2.2 - In around May/June 2023 the Chief Strategy Officer referred to the Community Transformation Board project as having “failed”, whilst it was still in the implementation phase.

[97]C contends this was a detriment and done because of PA1. We refer to our findings of fact at paragraphs 35.74 and conclusions at paragraph 53 above. For similar reasons, this complaint is dismissed on the facts and because C has failed to show any evidence that connects any concerns expressed about the delay of a project to his complaint of discrimination in relation to the CEO selection process in November 2022. The Chief Strategy Officer’s denial of being aware of PA1 at the relevant time was not challenged. Whatever was said in relation to this matter cannot be because of PA1 and this complaint is not well founded. Issue 3.2.3 - Failure to provide simple paid for estate refurbishment for a trials room for the Research and Innovation team which the Claimant leads, causing loss of commercial trails and funding to support the team and the Research Strategy and demoralising the team.

[98]C contends this was a detriment and done because of PA1. We refer to our findings of fact at paragraphs 35.75 to 35.78 and our conclusions at paragraph 54 above that this was not detrimental treatment of C personally. In addition, GD who made the decision contended that she was unaware of PA1 at the time the discussions about estates refurbishment were ongoing and her evidence was unchallenged. PA1 took place on 15 November 2022 and was made to JV, AG and AW (see paragraph 35.55). GD was not involved in that meeting, and we accept it is unlikely that she would have been informed about the contents of the discussion at the time the meeting was held. She was informed along with all other executive colleagues on 16 November 2022 that the CEO approval process had been halted for a review to take place, but no further detail was provided (see paragraph 35.58). The initial decision to not prioritise this work was communicated on 4 January 2023. Other than the fact that this occurred within 3 months of PA1, there is no evidence to suggest that this played any part at all in her decision making. Following the initial decision, GD engaged with the R&I team to try and explain the position and indeed find a solution (see paragraph 35.76) which would not suggest this decision was deliberately made to cause a problem for C or indeed had any connection with C at all. We are unable to conclude that the fact that C had done a protected act had any connection at all with what is essentially a business decision about how the respondent allocates its stretched resources. We accepted the respondent’s submissions that these are difficult decisions around prioritisation and although caused C much frustration and caused stress for those working in that area, was not a detriment as such to C and was not because of PA1. Issue 3.2.4 - Refusal of requests for administrative support.

[99]C contends this was a detriment and done because of PA1. We refer to our findings of fact at paragraphs 35.79 to 35.82 above and our conclusions on this complaint as brought as one of direct race and age discrimination at paragraph 55 above. For similar reasons we do not find this complaint to be made out. The reasons why administrative support was not able to be provided were operational in nature and connected to the informal and then formal recruitment freeze in place at the time. This was a decision of the SMT and other management structures in place rather than an individual decision and there is simply nothing at all to suggest that the fact that the claimant had complained of discrimination to JV, AW and AG on 15 November 2022 had any connection with the decision at all. This complaint is dismissed. Issue 3.2.5 - The CFO putting forward the recommendations in the Estates Strategy Paper in March 2023.

[100]C contends this was a detriment and done because of PA1. We refer to our findings of fact at paragraph 35.84. It appears from C’s submission that what is being complained about here is the fact that the Estates Strategy proposal was made at all and that it was first discussed when he was not present. The claimant has adduced no evidence to suggest that the reason why this proposal was made by GD was in any way connected to the fact that the claimant had complained to JV, AW and AG about the CEO selection process, and a criteria of CVs not being ‘too medical’ being likely to be race discrimination on 15 November 2022. There is no evidence that GD was aware of this when the proposal was developed and presented in March and May 2023. We find it highly implausible that a corporate strategy in relation to the utilisation of office space of the nature described was something that GD concocted and presented to the Board in response to becoming aware of C’s complaints. This was clearly an organisational matter and not in fact a detriment to C at all, not least because it is not clear any consultant has actually had an office removed. This complaint is dismissed. Issue 3.2.6 - In June 2023, undermining the Claimant’s Responsible Officer (RO) role by standing down a DAW complaint against a doctor without reference to him as RO.

[101]We refer to our findings of fact at paragraphs 35.75, but the claimant has now confirmed that he has withdrawn this complaint, so it is accordingly dismissed upon that withdrawal. Issue 3.2.7 - Pausing the Claimant’s application for DCEO role.

[102]C contends this was a detriment and done because of PA1. MF who made this decision was aware of PA1 as it was made to her. We refer to our findings of fact at paragraph 35.111 above. MF sets out in her letter to C of 10 August 2023 that the decision has been taken to pause the process because of the emerging investigation process. We were satisfied that this was the reason why the decision was taken to postpone the interviews and we note that this was taken in respect of all candidates, not just C, which points against the motive for the decision being connected to C having done a protected act when he complained about discrimination in relation to the earlier CEO process. C has failed to adduce any evidence at all to suggest such a connection, and this was not put to MF at all. For these reasons, this complaint fails and is Issue 3.2.8 - In or around August 2023, raising and/or treating a complaint against the Claimant formally as a means of preventing his application for DCEO being progressed.

[103]C contends this was a detriment and done because of PA1 and MF the decision maker was aware of it. We refer to our findings of fact at paragraphs 35.89 to 35.94 and 35.97 to 35.102 and our conclusions at paragraph 58 and 60 above in relation to this complaint as it is made as direct discrimination. Firstly for the same reasons as paragraph 58 we do not conclude that this was done as a means of preventing C’s application for DCEO being progressed. Secondly, as we set out at paragraph 60, we accepted MF’s explanation as to why she chose to formally investigate. This was the reason why this was done. It was not put to her that the real reason was because C had complained about discrimination and her denial was unchallenged. This complaint is not well founded. Issue 3.2.9 - FTSU complaint lodged against the Claimant, rather than treating any complaint as a grievance or attempting informal procedures first.

[104]C contends this was a detriment and done because of PA1 and again the decision maker, MF knew about this. We refer again to our findings of fact at paragraphs 35.89 to 35.94 and 35.97 to 35.102. For very similar reasons as are set out at paragraph 63 above, we conclude that the decision to treat the complaints lodged against C under FTSU rather than treating it informally or as a grievance was not because of C having done a protected act. This complaint is dismissed. Issue 3.2.10 - Commencing a Maintaining High Professional Standards investigation as part of a stand-alone process or a disciplinary process against the Claimant.

[105]C contends this was a detriment and done because of PA1. We refer to our findings of fact at paragraphs 35.136 to 35.145. For the same reasons as are set out at paragraph 65 above, this was not done because of PA1. The complaint of victimisation is not well founded. Issue 3.2.11 Failing to inform the Claimant of the concerns raised by colleagues other detail of the concerns.

[106]C contends this was a detriment and done because of PA1 or PA2. We refer to our findings of fact at paragraphs 35.101-35.102; 35.106-35.107 and 35.127 and paragraph 67 above and because of this conclude that this was not done because of either PA1 or PA2. The complaint is Issue 3.2.12 Failing to inform the Claimant of sufficient details of the complaints

[107]C contends this was a detriment and done because of PA1 or PA2. We refer to our findings of fact at paragraphs 35.146-35.147 and conclusions at paragraph 68. C was not informed of the identity of the complainants to NHSE and it is clear that those complaints were lacking in detail. We were satisfied that this was detrimental to C and again acknowledge it was hugely distressing for him. However for broadly the same reasons as we set out at paragraph 68 above, the reason for this was not because of PA1 and PA2 and so the complaint is dismissed. Issue 3.2.13 Removing his duties as RO and CMO.

[108]C contends this was a detriment and done because of PA1 or PA2. We refer to our findings of fact at paragraphs 35.9, 35.137, 35.141, 35.144- 35.146 and 35.148. For the same reasons as are set out at paragraph 69, this was not done because of PA1 and PA2. The reasons why C was restricted from his RO duties was because the HLRO had determined this to be the case following the decision of the LDMG and instructed C as such. The reason why C was restricted as CMO was as set out at paragraph 35.143. This complaint is not well founded and is dismissed. Issue 3.2.14 - Requiring the Claimant to report to the Interim CMO on a weekly basis.

[109]C contends this was a detriment and done because of PA1 or PA2. 87.We refer to our findings of fact at paragraphs 35.145. As set out in paragraph 87 above, we accepted that this was done to address any potential concerns relating to clinical leadership and also as a supportive measure to C. The denial of a link to any protected act was not challenged. This was not done because of PA1 or PA2 and this Issue 3.2.15 - Refusal to provide the Claimant with information about the substance of a complaint and the names of the complainants who are the basis of the FTSU.

[110]C contends this was a detriment and done because of PA1 or PA2. We refer to our findings of fact at paragraphs 35.101-35.102; 35.106-35.107 and 35.127. We accepted that this was a detriment but for very similar reasons as are set out at paragraph 67 above, we conclude that this was not done because of PA1 and PA2. We accepted MF’s explanation as to the reasons why (paragraph 35.101) which were communicated to C on 6 August 2023 (paragraph 35.106). This complaint is dismissed. Issue 3.2.16 - Escalation of complaints about the Claimant to external investigation under FTSU.

[111]C contends this was a detriment and done because of PA1 or PA2. We refer to our findings of fact at paragraphs at paragraph 35.98 and 35.106 and conclusions on this complaint as an allegation of direct discrimination at paragraph 60 above relating to the reasons why. This was not done because of PA1 or PA2 and this complaint is dismissed. Issue 3.2.17- Failing to follow the National guidance regarding complaints against Responsible Officers.

[112]C contends this was a detriment and done because of PA1 or PA2. For the same reasons as are set out at paragraph 73 above, this complaint is not well founded. There is no evidence that anything done in this regard was connected to a protected act. This complaint is dismissed. Issue 3.2.18 - Failing to follow the Respondent’s polices in respect of grievances.

[113]C contends this was a detriment and done because of PA1 or PA2. For the same reasons as are set out at paragraph 72 above, this complaint is not well founded and is dismissed. Issue 3.2.19 - Failing to follow the Respondent’s and NHS FTSU policy.

[114]It is not clear which protected act C contends this was a result of. For very similar reasons as are set out at paragraphs 75 to 78 this complaint fails and is dismissed. Issue 3.2.20 - Failing to attempt to resolve the issue informally, specifically but

[115]This is essentially the same complaint as is made at issue 3.2.9 (with some overlap to issue 3.2.21 and so for the same reasons set out in paragraphs 104 and 116 it is also dismissed. Issue 3.2.21 - Failing to follow National Guardian Office (NGO) Guidance on

[116]C contends this was a detriment and done because of PA1. We refer to our findings of fact at paragraphs 35.6, 35.90, 35.103 and 35.132-3. For very similar reasons as are set out at paragraphs 81 and 83 (on the issue as pleaded as direct discrimination) we were satisfied that nothing done in this regard was because of PA1. This complaint is dismissed. Issue 3.2.22 - Appointing an individual who was not impartial to consider the Claimant’s DAW complaints. The individual was the Chair’s mentee, SG.

[117]C contends this was a detriment and done because of PA1 and PA3. We refer to our findings of fact at paragraphs 35.119 and for very similar reasons as are set out at paragraph 84 above, we conclude that the appointment of SG by JV was not done because of PA1 and PA3. This Issue 3.2.23 - Appointing an individual who was not impartial to manage the complainants made against the Claimant. The individual was the Chair’s mentee, SG.

[118]C contends this was a detriment and done because of PA1 and PA3. For the same reasons as are set out at paragraph 117 this complaint fails and is dismissed. Issue 3.2.24 - The Chair persisting in appointing SG in relation to matters pertaining to the Claimant’s employment despite the Claimant’s representations

[119]C contends this was a detriment and done because of PA1 and PA3. This issue is closely connected to issues 3.2.23 and 3.2.24 and for the same reasons as are given at paragraph 117, this complaint does not succeed and is dismissed. Issue 3.2.25 - Failing to progress the Claimant’s DAW complaints.

[120]C contends this was a detriment and done because of PA1 and PA3. For the same reasons as are set out at paragraph 88 above, this complaint fails but we also cannot see how C has connected any decisions in relation to how his DAW complaints were progressed to him having done protected acts. This complaint is dismissed. Issue 3.2.26 - Notifying the Claimant of “New Concerns.”

[121]C contends this was a detriment and done because of PA1. We refer to our findings of fact at paragraphs 35.151-2 and 35.156-8. For very similar reasons as are set out at paragraph 91, we were not satisfied that C has shown any connection with him doing PA1 or any protected act. This complaint is not well founded. Issue 3.2.27 - Setting vague, non-specific and personal Terms of Reference for

[122]C contends this was a detriment and done because of PA1. We refer to our findings of fact at paragraphs 35.160-66. Again for similar reasons as are set out at paragraph 93, we do not conclude that this was done because of a protected act and so this complaint of victimisation fails. (4) Complaint of harassment related to race or age

[123]To determine these four complaints, we needed to decide whether C was subject to unwanted conduct of the type described; then determine whether the conduct was related to race or age. We were then required to consider whether the conduct had the purpose or effect of violating C’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, having regard to:(a) the perception of C;

(b) the other circumstances of the case; and

(c) whether it is reasonable for the conduct to have that effect. We set out our conclusions on each matter alleged to be disability related harassment below: Issue 4.1.1 - Chair persisting in appointing SG in relation to matters pertaining to the Claimant's employment despite the Claimant's representations that she was conflicted out and not impartial in any event.

[124]As we found at paragraph 35.119-20 above, JV did appoint SG to act as commissioning manager and then denied C’s requests to remove her (see paragraph 35.123). There was subsequently a decision to change the commissioning manager of the FTSU concerns to AG (see paragraph 35.132). However, there is simply no evidence at all to suggest that this was in any way related to age or C’s age group. The Claimant did not put to JV that this was related to his race or age group. It is a key element of a claim made under section 26 EqA that any unwanted conduct must relate to the protected characteristic. There is no link either protected characteristic here at all. On this basis this allegation can go no further and must fail. We did not need to go on to consider whether the conduct had the required purpose or effect. This allegation is not well founded and is dismissed. Issue 4.1.2 - that the Claimant has to report to the interim CMO, initially a cardiologist and subsequently a DCMO from another trust seconded to the interim CMO role, every week about his clinical work.

[125]Our findings of fact about the instructions given to C to report to the interim CMO are at paragraph 35.145-9 above. It was clear to us that C was offended with being required to report to both of these individuals on the basis of their lack of experience and seniority. However he contends now that he was offended that the cardiologist (Jho) was not experienced in his own field of speciality and was white. Therefore we conclude that this did have some relationship to C’s race. C contends that it was the fact that C was required to report to a white cardiologist (who would not know about his clinical work) that offended him stating that this was vindictive, demeaning and humiliating. Therefore, we had to go on to consider whether this selection was made with either the purpose or effect of violating C’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. We firstly considered whether it had the required purpose and concluded that it did not. The reason there was a need to appoint an interim CMO as set out at paragraph 35.145. C had been temporarily restricted from the role and R was required to put an interim RO/CMO in place. We also accepted MF’s evidence that this was intended to be a supportive measure. Jho was appointed for a 2-week period only whilst a suitable longer term interim appointment was made and then JSr was appointed on an interim basis (whom C also objected to, although he was not white). There is simply no evidence that MF or anyone at R made these appointments in order violate C’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment. This was clearly not the purpose of the appointment.

[126]Although we conclude that the comments did not have the purpose required, we also had to consider whether the appointment of JHo for a 2 week period had the effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for C and if it did was it reasonable for it to have that effect. Following the Pemberton decision above, to decide whether any conduct falling within section 26(1)(a) has either of the proscribed effects under section 26(1)(b), a tribunal must consider both (by reason of section 26(4)(a)) whether the putative victim perceives themselves to have suffered the effect (the subjective question) and (by reason of section 26(4)(c)) whether it was reasonable for the conduct to be regarded as having had that effect (the objective question). It must also consider all the other circumstances under section 26(4)(b). The relevance of the subjective question is that if C did not perceive their dignity to have been violated etc the conduct should not be found to have had that effect. The objective question is then relevant and if it was not reasonable for the conduct to be regarded as violating C’s dignity etc, then it should not be found to have done so.

[127]We firstly considered the subjective question which was whether the Claimant perceived the conduct to have had the effect of violating dignity or creating an intimidating etc environment. We conclude that it did not have the required effect when we consider the guidance given by the Court of Appeal decision in Grant above. It is clear that C was affronted that he was being asked to effectively check in with a non-psychiatrist (who just happened to be white) for that initial two-week period. Clearly a non-psychiatrist would not have the insight into clinical practice that someone of that field would do and the fact that a psychiatrist was then put in place to continue in the interim role, makes it clear that R thought the same. However this is some way away from C believing that his dignity had been violated or that an intimidating, hostile, degrading, humiliating or offensive environment had been created. We find that this was not the case and even if C had shown this to be the case, taking into account all the circumstances particularly given that this was a temporary arrangement which lasted just two weeks, it would not have been reasonable for it to have had such effect. We do not consider that being required to report to a colleague of a different race was something that it was reasonable to have had the effect of violating dignity and creating a hostile environment etc. On this basis the allegation is dismissed. Issue 4.1.3 - CFO email to say that a former MD she knew could come and assist the Trust with its out of hours cover work (which was part of the Claimant's team responsibilities)

[128]Our findings of fact about this e mail and related matters are at paragraphs 35.108-35.109 above. This e mail was sent therefore had to go on to consider whether this was in any way related to race of C’s age group, and we find that it was not. It was never put to GD that this e mail had any connection to C’s rage or age group or these matters in general and we did not find that there was that connection or relationship. It is hard to see how this is anything other than a general suggestion and offer of external input being passed on to C and the management team. This allegation therefore fails, and we did not need to go on to consider whether the conduct had the required purpose or effect. In our view it is hard to see how this e mail could possibly have had the intention required (which again was not put to GD) and even if it had the effect required (which C does not really give convincing evidence about) that it was reasonable in all the circumstances for it to have had that affect. C clearly took umbrage at the suggestion as can be seen by the spiky tone of his response, but this is far from indicating that there was anything close to have the effect of violating C’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. We have no doubt that C was under stress at this time as he had been notified of the FTSU investigation and was clearly offended by the suggestion of external help, but this does not in our view go near the level of seriousness for such conduct to be considered harassment, even without the connection to a protected characteristic This allegation is dismissed. Issue 4.1.4 CFO would shake her head in meetings in disagreement when the Claimant spoke.

[129]This complaint was dismissed upon withdrawal by C.

[130]Given that none of the complaints under sections 13, 26 or 27 of EqA have succeeded, we do not need to go on to consider whether there was conduct extending over a period and if not, whether the claims were made within a further period that the Tribunal thinks is just and equitable. All the claims failed having been considered fully on their merits. There was no unlawful conduct at all and therefore the issue of whether there was any ‘conduct extending over a period’ (EqA, s123(3)(a)) does not apply. (5) Whistleblowing (s47B (1) ERA - Complaint of detriments on ground of having made protected disclosures Disclosures

[131]In relation to the ten disclosures relied upon by C (and labelled PID 1 to PID 10) these were all made to R, being C’s employer for the purpose of s. 43(C)(1)(a) ERA. Therefore, in each case, if the disclosure was a qualifying disclosure, it was a protected disclosure.

[132]To determine whether each disclosure was a qualifying disclosure, the Tribunal was required to determine in the case of each disclosure relied upon:132.1 What was said or written to whom and when?

132.2 Did this amount to a disclosure of information?

132.3 Did C believe the disclosure of information was made in the public

132.4 Was that belief reasonable?

132.5 Did C believe it tended to show (as applicable) that:132.5.1 Section 43B (1) (b) - that a person had failed, was failing or was likely to fail to comply with any legal obligation?

132.5.2 Section 43B (1) (d) - that the health or safety of any individual had been, was being or was likely to be endangered?

132.5.3 Section 43B (1) (f) - that information tending to show any such matter has been, or is likely to be deliberately concealed?

132.6 Was that belief reasonable?

[133]In relation to each alleged disclosure relied upon we set out our conclusions on the disputed matters as follows: PID 1 (issue 5.4.1) – On 27 April 2022- The Claimant raised the issue of procedural unfairness with the acting CEO, Marsha Foster, concerning the process followed in appointing the Deputy COO.

[134]Our findings of fact about this e mail are at paragraph 35.31 above. In

[135]R submits that there was no disclosure of information by C in this e mail. However we were satisfied that given the statements made by C about the panel discussion being limited and individual candidate rankings being disregarded that this is sufficient to amount to a disclosure of information.

[136]R submitted that C did not have a reasonable belief that the disclosures were in the public interest. C submits that an earlier e mail of 7 April 2022 shows that his allegation that the highest performing candidate was not appointed was made in the public interest as well as the way he concluded the e mail of 27 April itself, with reference to culture and values being transparent and accountable. However, we conclude that C did not believe at the time of sending this e mail on 27 April 2022 that he was making a disclosure of information in the public interest. C was clearly upset at the decision that had been made, and we conclude that this was primarily because the candidate he had placed first (by scoring at maximum for each score given36/39) was not ultimately selected. We refer to our findings at paragraphs 35.26 to 35.30 relating to C’s feelings and reactions during the scoring process of being ganged up upon and offended by the suggestion that his scores had been an outlier or he may have shown unconscious bias towards DC. C’s e mails following the discussions (see paragraphs 35.26 and 35.28-35.29) make strong arguments in support of his own scoring and suggest that the evidence only supports DC’s selection. He refers to having to ‘defend himself’ against allegations made about his own scoring and made implied threats to escalate the situation and cause ‘collateral damage’. He makes reference to being due an apology and that he would distance himself from an outcome that he did not agree with. We conclude that these e mails represent the background and motivation to the e mail sent by C on 27 April 2022. We do not conclude that anything suggests that C believed he was acting in the public interest by sending this e mail. This was a personal matter with C communicating strongly his disagreement with the decision made by the selection panel (and to an extent the process by which it was made). The focus is on his own view of how a selection process should be conducted being adopted, rather than to draw attention to something he believed to be in the public interest more widely.

[137]Given our conclusion that we did not accept that C believed he was acting in the public interest, it is unnecessary to determine whether such a belief was reasonable.

[138]C does not state which of the alleged matters set out in section 43B (b), (d) disclosure tends to show, with this being pleaded purely as ‘procedural unfairness’. There is nothing to suggest that anything stated in this e mail is suggesting or alleging a breach of health and safety (s. 43B (1) (d)). R contends that C also did not have a reasonable belief that the disclosures about the internal discussion around selection of a candidate tended to show a matter within s. 43B(1)(b) ERA and we accept this submission. The e mail makes reference to cultures within organisations being transparent and accountable, but no failure to comply with any particular legal obligation is identified or can be inferred by what is said. For similar reasons as set out above, we conclude that this was primarily an internal complaint made by C stating his disagreement with a decision made and the way it was reached. His favoured candidate was not appointed following the discussion between the panel and he was aggrieved by this and what he felt was the panel ignoring his own views and favouring the views of (in particular) GD and KKW. Whilst we accept that C believed the decision was procedurally unfair, we were not satisfied that C believed what he had put in this e mail tended to show a breach of any legal obligation. It was rather a complaint about a decision going in a way he personally was unhappy with. For completeness we also conclude that there is nothing set out in this e mail which tends to show any issue around deliberate concealment within s. 43B(1)(f) ERA. Whilst there is reference to transparency in general, there is no allegation about anyone deliberately trying to conceal a breach of a legal obligation etc.

[139]Given our conclusions above that C did not believe that the information disclosed tended to show a breach of a legal obligation, we did not need to consider the reasonableness of any such belief.

[140]We therefore conclude that PID 1 was not a qualifying disclosure and thus not a protected disclosure within the meaning of section 43B ERA. PID 2 (issue 5.4.2) – On 31 October 2022 the Claimant wrote to CPO, AW, expressing his concerns about not having been long listed on the basis of discrimination on the grounds of race.

[141]Our findings of fact about this e mail are at paragraph 35.47 above. In

[142]R submits that there was no disclosure of information by C in this e mail and that a generalised allegation of discrimination/unfair practice is insufficient. We conclude that as C complains that he was not given an interview and was not given a substantive reason for being rejected, this just about passes the threshold to amount to a disclosure of information. Did the Claimant believe the disclosure of information was made in the public

[143]R submitted that C did not have a reasonable belief that the disclosures were in the public interest, pointing out that he is solely focused on his own circumstances in the context of an internal recruitment exercise. We accept this submission, particularly given our findings of fact at paragraph 35.48 above and C’s acknowledgement that he was aggrieved about his own situation. We conclude that did not believe at the time of sending this e mail on 31 October 2022 that he was making a disclosure of information to AW in the public interest. C was making an allegation of unfairness and discrimination (with no detail) and was asking for guidance from AW as to how he could pursue his complaints further. He acknowledged that AW responded appropriately by suggesting he contact JV and could raise a grievance if required. There is no evidence to support the fact that C believed he was acting in the public interest by sending this e mail.

[144]Given our conclusion that we did not accept that C believed he was acting in the public interest, we did not need to decide whether such a belief was

[145]C does not state which of the alleged matters set out in section 43B (b), (d) disclosure tends to show, save for complaining is unfair and discrimination without being specific about what type. There is no allegation of a breach of health and safety (s. 43B (1) (d)). R suggests that C did not have a reasonable belief that the contents of this e mail tended to show a matter within s. 43B(1)(b) ERA (breach of a legal obligation), and we agree with this. Whilst we accept that C believed the decision was unfair and mentioned discrimination in bare terms, we were not satisfied that C believed what he had put in this e mail tended to show a breach of an actual legal obligation. At this stage, C has no real information on which to base his allegation, save for his own confidence in his own application and belief that he had met the person specification. He was unaware of other applications on which to measure this view or really make any informed allegation of discrimination. Again the e mail does not suggest any deliberate concealment within s. 43B(1)(f) ERA.

[146]Given our conclusions above that C did not believe that the information disclosed tended to show a breach of a legal obligation, we did not need to consider the reasonableness of any such belief.

[147]We therefore conclude that PID2 was not a qualifying disclosure and thus not a protected disclosure. PID 3 (Issue 5.4.3) - On 13 November 2022 the Claimant wrote to AW reiterating his concerns regarding the long listing process for the CEO role.

[148]Our findings of fact about this e mail are at paragraph 35.53-35.54 above. In relation to each of the issues set out at paragraphs 132.1-6 above, we

[149]We were satisfied that the contents of this e mail did amount to a disclosure of information, albeit that many generalised allegations of discrimination were made without specific information being supplied. There was a specific allegation that C’s application had been blocked and a description of C’s concerns with the stakeholder panel and a lack of scoring and record keeping. Did the Claimant believe the disclosure of information was made in the public

[150]R submitted that C did not have a reasonable belief that the disclosures were in the public interest, submitting that the e mail focused on C’s failure to progress. It is correct that much of the e mail relates to personal complaints about how his application was excluded, making points that his belief is that those who did progress could not have fulfilled the person specification better than he did. However following the guidance in Chesterton above, we conclude that given that at this stage, C is making an allegation of race discrimination in relation to a senior appointment and he finishes his e mail by asking that his concerns be shared with other NEDs and the board of governors, we were satisfied that C at least in preparing and sending this e mail and asking for it to be shared more widely believed he was raising this in the interests of the public.

[151]We have gone on to consider whether such a belief that C was making the disclosure in the public interest was reasonable, we conclude that C has just about shown that it was. C had formed a view that the process was discriminatory and wanted this view to be shared more widely with the nonexecutive team and board of directorslead governor. An allegation of failure to progress within an organisation because of race and some of the points made in this email, it is reasonable to conclude the wider public might have an interest in.

[152]Again, C does not state which of the alleged matters set out in section 43B (b), (d) or (f) ERA (and referred to at paragraph 132.5 above) the information in the disclosure tends to show. There is no allegation of a breach of health and safety (s. 43B (1) (d)). However we were satisfied that C actually believed what he had put in this e mail tended to show a breach of an actual legal obligation, namely some form of breach of the EqA related to race. Again the e mail does not suggest any deliberate concealment within s. 43B(1)(f) ERA. Even though the e mail starts with an allegation of deliberate blocking of his appointment, it does go on to make allegations of more generalised discrimination, and we were satisfied that by this stage, C’s belief in these points was genuine.

[153]R submits that C did not have a reasonable belief that the contents of this e mail tended to show a matter within s. 43B(1)(b) ERA (breach of a legal obligation). For similar reasons as are set out above, we accept that even though C believed he was making an allegation of discrimination, at this time, this was not a belief that was reasonable for C to hold. C starts this e mail by suggesting he had heard he was deliberately blocked in his application but provides no detail. He complains of not progressing largely based on his own assessment of his qualities listing his own achievements in his current role. He only briefly makes reference to the other candidates and makes an assumption about their applications based solely on a brief pen portrait he had and speculates that their applications cannot have been as good as his own. He focuses solely on his own achievements rather than any consideration as to whether other candidates’ applications may have met the criteria more effectively. We do not conclude that this amounted to a reasonable basis to allege that the decision not to long list him must have been based on race. C did not have a reasonable and objectively supported belief that what he had disclosed amounted to race discrimination, even if he actually believed it himself. On this basis PID3 was not a qualifying disclosure and thus not a protected disclosure. PID 4 (Issue 5.4.4) – On 15 November 2022 the Claimant raised concerns in a meeting with Chair of the Trust, Jeremy Vanes, Ashi Williams and AG, the Senior Independent Director (SID) about the CEO selection process including that a criteria of CVs not being 'too medical' was likely to be race discrimination.

[154]Our findings of fact about this e mail are at paragraph 35.55-7 above. In

[155]We were satisfied that the contents of this e mail did amount to a disclosure of information for the same reasons as set out in similar disclosures above.

[156]R submitted that C did not have a reasonable belief that the disclosures were in the public interest, and on this alleged disclosure we accept the submissions. In particular C’s admissions in cross examination that his purpose during this meeting was to halt the AOG approval process and that he was raising a personal matter relating to his own situation and wanted it to be internal. Whatever was said in earlier communications, the purpose behind the disclosures at this particular meeting was to raise individual concerns, not to raise a matter of wider public interest.

[157]Given our conclusion that we did not accept that C believed he was making a disclosure in the public interest, we did not need to decide whether such a belief was reasonable.

[158]It is not clear which of the alleged matters set out in section 43B (b), (d) or (f) ERA (and referred to at paragraph 132.5 above) C contends the information in the disclosure tends to show, but we assume that it is suggested that C is alleging a breach of an actual legal obligation, namely some form of breach of the EqA related to race. We were satisfied that by this stage, C’s belief in his allegation of discrimination was genuine.

[159]For the same reasons set out above, we accept that even though C believed he was making an allegation of discrimination, at this time, this was not a belief that was reasonable for C to hold. C has no further information about the selection process at the time of this meeting than he did when he sent his e mail a few days earlier. We do not conclude that this amounted to a reasonable basis to allege that the decision not to long list him must have been based on race. Therefore we conclude that did not have a reasonable and objectively supported belief that what he had disclosed amounted to race discrimination. On this basis PID4 was not a qualifying disclosure and thus not a protected disclosure. PID 5 (Issue 5.4.5) – On 8 January 2023 the Claimant wrote to AW expressing his dissatisfaction with the review of the CEO process that had taken place and concerns regarding the management of the Trust.

[160]Our findings of fact about this e mail are at paragraph 35.63-4 above. In

[161]We were satisfied that in this email, C made a number of disclosures of information, in particular his complaints about the mismanagement of the trust.

[162]R submitted that C did not have a reasonable belief that the disclosures made in this email were in the public interest, pointing out that the thrust of the information was about C’s personal challenge to him not being long listed and all the other matters listed here, were ‘prayed in aid’ of this complaint rather than being a substantive raising of a concern in itself. We conclude that the first part of the letter sent was not something raised in the public interest, as it related to his own very specific circumstances of not being long listed and the quality of his own application compared to those who did. We do not accept C believed this was being raised in the public interest. However we were satisfied that in the second part of this document, C did believe he was raising matters that were in the public interest and accept the submissions of C that the reference in particular to violence and aggression on the wards and nursing recruitment suggests C did believe this particular disclosure was made in the public interest.

[163]We were also satisfied that C’s belief that raising matters in relation to violence and aggression on wards and how this was being addressed, and the failure to replace and recruit nurses who were leaving was in the public interest was reasonable. These are clearly matters of interest to the wider public and users of the NHS.

[164]C does not state which of the alleged matters set out in section 43B (b), (d) disclosure tends to show. However we were able to conclude that matters of violence and aggression on wards and R’s failure to make progress on this, could be regarded as raising matters of health and safety of patients and staff (s. 43B (1) (d)). We were just about content to conclude that C held a belief that what he was disclosing did pose such a risk. Likewise the reference to failure to recruit and replace nurses, we felt was genuinely being raised by C to highlight that R could be failing in its legal obligation to provide a sufficient level of care.

[165]We were not addressed in general by either party about the reasonableness of any such belief as set out above in relation to violence and aggression and lack of recruitment of nursing staff. We have concluded that on balance, raising such matters as potential health and safety/breaches of a legal obligation was a reasonable belief for C to have held. We also note that AW treated this part of the communication as potentially falling within the remit of the FTSU policy suggesting she recognised this could be a potential matter of whistleblowing (para graph 35.61)

[166]We therefore conclude that PID5 was a qualifying disclosure and thus a PID 6 (Issue 5.4.6) – On 16 January 2023 the Claimant wrote to AG the Senior Independent Director of the Respondent expressing concern as to how an allegation of abuse and substandard patient care was dealt with by the Trust.

[167]Our findings of fact about this e mail are at paragraph 35.66 above. R appears to accept that C made a protected disclosure in relation to his express concerns about the handling of an allegation of abuse and substandard patient care. In any event, we concluded that C made a disclosure of information in this letter which he reasonably believed to be in the public interest. We were also satisfied that C reasonably believed what he had set out in his e mail tended to show that R may had failed with a legal obligation and/or the health or safety of the individual in question had been endangered.

[168]We therefore conclude that PID6 was a qualifying disclosure and thus a PID 7 (Issue 5.4.7) – On 19 July 2023 the Claimant emailed the CEO expressing his concern that there may be a closed culture in the Trust's governance.

[169]Our findings of fact about this e mail are at paragraph 35.86 above. In

[170]R denied that there was a disclosure of information, but we were satisfied that the contents of this e mail did amount to a disclosure of information, describing conversations that had taken place in two named meetings as well as making an allegation of a closed culture.

[171]R submitted that C did not have a reasonable belief that the disclosures were in the public interest, submitting that the e mail was focused on an internal event with no wider ramifications. Despite what C says about the potential impacts of a closed culture on patient safety in a wider context (which in general we agree with), we were not satisfied that this was in the mind of C when he was raising the matter. He did not in our view raise the issue as something in the wider public interest in this e mail but was addressing something he observed about management behaviour which he wished MF to be aware of and try to address.

[172]We therefore do not need to consider whether any such belief was reasonable, as we do not conclude that C held this belief at this time.

[173]Again, C does not state which of the alleged matters set out in section 43B (b), (d) or (f) ERA (and referred to at paragraph 132.5 above) the information in the disclosure tends to show. We were not satisfied that C believed what he had put in this e mail tended to show a breach of an actual legal obligation, that the health or safety of any individual had been, was being or was likely to be endangered or that information tending to show any such matter has been, or is likely to be deliberately concealed. The points he now makes about culture and patient safety, were not something we were satisfied he believed he was making at the point this e mail was sent.

[174]As we have concluded that C did not believe he was disclosing information that tended to show matters set out in section 43B (b), (d) or (f) ERA, we did not have to go on to consider whether that belief was reasonable.

[175]PID7 was not a qualifying disclosure and thus not a protected disclosure. PID 8 (Issue 5.4.8) – On 26 July 2023 the Claimant raised concerns at a Board meeting about the impact on very vulnerable patients of a proposal to close the Gerry Simon Clinic.

[176]Our findings of fact about this issue are at paragraphs 35.95-6.

[177]R contends that none of the matters that C raised at this meeting are capable of amounting to a disclosure of information. We acknowledged that much of what C is doing with his contribution is raising questions as to where patients would go if the unit were closed. He did give some information, namely that no safety concerns had been reported and that although tired, the unit was useful. He further stated that he felt that the views of those in the division had to be considered. This is just about sufficient to be a disclosure of information, at least in terms of what is communicated about no safety concerns being reported.

[178]R contends that this was an internal matter with no wider ramifications and so issues of public interest do not arise. We did not accept this, as the potential closure of such a unit is likely to be in the public interest. The information disclosed by C is that no safety concerns have been raised and he goes on to ask questions. We are satisfied that what C was doing in contributing to the debate, he believed to be in the public interest, although there is a question about whether this really applied to the disclosure of any information, rather than him raising questions.

[179]We are also just about satisfied that the matter raised being in the public interests was a reasonable belief for C to hold, given the wider interest in the possible closure of such a unit. We have the same reservations as to whether it was the disclosure of information itself that this applied to, rather than the asking of questions though.

[180]C does not state which of the alleged matters set out in section 43B (b), (d) disclosure tends to show. We are unable to conclude that anything that C said in this exchange suggested that C believed that what he was raising was stating that there had or would be a breach of a legal obligation, health and safety risk or potential concealment. He firstly states that no patient safety concerns had been raised. What he then does is raise the issue that before the proposal is implemented, that where patients would go would need to be considered and stating his view as to the usefulness of the unit. He then makes a wider suggestion about ensuring that the views of the learning disabilities division are considered. He does not state that these things are not being done, he simply raises them as queries. There was then further discussion about the matters raised by C and others. There is simply nothing to suggest that C believed he was informing the Board of a potential breach of a legal obligation or a health and safety risk. He appears to be doing nothing other than raising queries for discussion and consideration on a proposal the Board was considering. Others did exactly the same and the outcome of the discussion was to approve the recommendation that closure, and its impact be considered.

[181]As we have concluded that C did not believe he was disclosing information that tended to show matters set out in section 43B (b), (d) or (f) ERA, we did not have to go on to consider whether that belief was reasonable. PID 9 (Issue 5.4.9) – On 17 August 2023 - DAW complaint.

[182]Our findings of fact about this issue are at paragraphs 35.113-5.

[183]C does disclose information in this complaint, setting out his account around a number of events that had occurred which he is complaining about.

[184]R contends that this complaint which is labelled as being raised under C’s DAW policy and addresses issues of C alleged treatment by his employer, does not raise any issues in the public interest. The first question we have to determine is whether C believed he was raising such matters in the public interest. C does not address this particularly, as his witness statement refers to complaints about how he was treated and alleges what was done was to prevent him achieving his professional goals. His complaint does pick up his concerns about the effect on other employees, referring to SA and SM but we can find nothing else in what was disclosed which suggested that the purpose of raising such matters in a DAW complaint was a belief that this was in the public interest. By this time, there had been many references to the use of the FTSU policies in relation to complaints against C, but he chose to instigate his complaints under the DAW policy which is primarily a way of addressing personal and individual complaints, rather than issues of wrongdoing raised in the public interest more generally.

[185]Given that we do not conclude that C made disclosures in the public interest, we did not need to consider whether any such belief was

[186]Again, as we did not find the disclosures to be made in the public interest, we did not need to consider the matter further and go on to decide whether C reasonably believed his disclosures showed the failures set out in section 43B (b), (d) or (f) ERA. This was not a protected disclosure. PID 10 (Issue 5.4.10) – On 18 September 2023 – DAW complaint.

[187]Our findings of fact about this issue are at paragraphs 35.135.

[188]R denies that there was a disclosure of information at all here and we note that the main thrust of this e mail is making allegations of wrongdoing and bad faith on JV’s behalf, rather than setting out specific information. However given that some information is provided about the suggestion of collusion with the CEO appointment of SG and delay to escalation to AG, this just about passes the test of specificity and factual content to be a disclosure of information.

[189]R again suggests this DAW complaint not raise any issues in the public interest. For the same reasons as set out at paragraph [184] above in relation to C’s August DAW complaint (PID 9) we conclude that C did not believe the disclosure here was in the public interest. This was a personal complaint about his own treatment under R’s internal policies.

[190]Given that we do not conclude that C made disclosures in the public interest, we did not need to consider whether any such belief was

[191]Again, as we did not find the disclosures to be made in the public interest, we did not need to consider the matter further and go on to decide whether C reasonably believed his disclosures showed the failures set out in section 43B (b), (d) or (f) ERA. This was not a protected disclosure. Detriments

[192]Having concluded that C made protected disclosures on two of the above occasions, PID 5 on 8 January 2023 and PID 6 on 16 January 2023 we needed to determine whether C was firstly subject to the detriments he alleged and secondly whether he was subject to any such detriment on the grounds of having made either of these protected disclosures. We conclude in relation to each alleged detriment as follows: Issue 5.6.1 - Delaying and/or reducing funding for the Community Transformation Program.

[193]We refer to our findings of fact at paragraphs 35.69-35.73 above and our conclusions on this being detrimental treatment at paragraph 51 above. For the same reasons, we conclude that this was not detrimental treatment of C but a purely operational matter. Moreover, C claims that R delayed or reduced funding for the Community Transformation Program because of PID 1 and/or PID4 (neither of which were protected disclosures). There was no detrimental treatment of C and in any event, whatever took place was not because of C having made a protected disclosure. This claim is Issue 5.6.2 - In around May/June the Chief Strategy Officer referred to the Community Transformation Board project as having “failed”, whilst it was still in the implementation phase.

[194]We refer to our findings of fact at paragraphs 35.74 above and our conclusions at paragraph 53 above. This complaint is not made out on the facts and in any event C claims that such a comment was made because of PID 1 and/or PID4, which we did not find to be protected disclosure. The complaint is accordingly dismissed. Issue 5.6.3 - Failure to provide simple (paid for) estate refurbishment for a trials room for the Research and Innovation team which the Claimant led, causing loss of commercial trails and funding to support the team and the Research Strategy and demoralising the team.

[195]C claims that the decision not to provide this trials room was materially influenced by PID 1 and/or PID4. Our findings of fact about this matter are at paragraphs 35.75 to 35.78 and we also refer to our conclusions at paragraphs 54 above relating to the issue of detriment. Again, neither PID1 nor PID 4 were found to be protected disclosures and thus for these reasons, this complaint fails and is dismissed. Issue 5.6.4 - Refusal of repeated requests for essential administrative support.

[196]C claims that this refusal of his request for administrative support was caused by PID 1 and/or PID4. For the same reasons as are set out in paragraph 55 and for similar reasons as are set out at paragraph 193 above, this complaint is dismissed. Issue 5.6.5 - In June 2023, undermining the Claimant’s Responsible Officer (RO) role by standing down a DAW complaint against a doctor without reference to him as RO.

[197]We refer to our findings of fact at paragraph 35.83, but C has now confirmed that he has withdrawn this complaint, so it is accordingly dismissed upon that withdrawal. Issue 5.6.6 - Pausing the Claimant’s application for DCEO role

[198]We refer to our findings of fact at paragraph 35.111 above. C contends that his was done because of PID1, PID4, PID7 and/or PID8. However, none of these alleged disclosures was found to be a protected disclosure and therefore this complaint must fail. For similar reasons as are set out at paragraph 57 above in relation to this complaint as it is made as one of direct discrimination, we were satisfied that the reason for this decision was as explained by MF in her e mail to C of 10 August 2023. This complaint is Issue 5.6.7 - In or around August 2023, raising and/or treating a complaint against the Claimant formally as a means of preventing his application for DCEO being progressed.

[199]C contends that his was done because of PID1, PID4, PID7 and/or PID8. None of these alleged disclosures was found to be a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out in paragraphs 58 and 60 above in relation to this complaint as it is made as one of direct discrimination, we were satisfied that the reason for this decision was as set out at paragraphs 35.98 and 35.106, not any PIDs. This complaint is dismissed. Issue 5.6.8 - Commencing and/or considering a FTSU complaint lodged against the Claimant (rather than treating any complaint as a grievance.

[200]C contends that his was done because of PID1, PID4, PID7 and/or PID8. None of these alleged disclosures was found to be a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 63 above in relation to this complaint as it is made as one of direct discrimination, we were satisfied that the reason for this decision was the serious nature of the concerns about a member of the executive board and that 3 of the 4 complainants had indicated that they wished to remain confidential, and not connected to any of the PIDs. This Issue 5.6.9 - Commencing a Maintaining High Professional Standards investigation as part of a disciplinary process against the Claimant.

[201]C contends that this was because of PID9. PID 9 was not a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 65 above in relation to this complaint as it is made as one of direct discrimination, we were satisfied that the reason for this decision was not connected to any protected disclosure but as set out above. This complaint is dismissed Issue 5.6.10 - Failing to inform the Claimant of the concerns raised by colleagues other details of the concerns).

[202]C alleges that this was because of the PID1, PID4, PID7 and/or PID8. None of these alleged disclosures was found to be a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 67 above in relation to this complaint as it is made as one of direct discrimination, we were satisfied that the reason for this decision was not connected to a protected disclosure. This complaint is dismissed Issue 5.6.11 - Failing to inform the Claimant of sufficient details of the complaints

[203]C contends that this was because of PID9. PID 9 was not a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 68 above, we were satisfied that the reason for this decision was that R itself did not have this detail (see paragraphs 35.136 -35.141). None of the pleaded PIDs were connected to the decision. This complaint is dismissed. Issue 5.6.12 - Removing or suspending the Claimant’s duties as RO and CMO.

[204]C contends that this was because of PID9. PID 9 was not a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 69 above, we were satisfied that this decision was not connected to any protected disclosure in any way. This Issue 5.6.13 - Refusing to provide the Claimant with information about the substance of a complaint and the names of the complainants who are the basis of the FTSU or MHPS investigation.

[205]C alleges that this was because of the PID1, PID4, PID7 and/or PID8. None of these alleged disclosures was found to be a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 68 above in relation to this complaint as it is made as one of direct discrimination, we were satisfied that the reason for this decision was not any pleaded protected disclosure. This complaint is dismissed. Issue 5.6.14 - Escalating some complaints to external investigation under FTSU without attempting informal resolution.

[206]C alleges that this was because of PID1, PID4, PID7 and/or PID8. None of these alleged disclosures was found to be a protected disclosure and therefore this complaint must fail. For similar reasons as are set out at paragraph 70 above there was no connection to any protected disclosure. This complaint is dismissed. Issue 5.6.15 - Escalating the complaints to a MHPS investigation.

[207]C contends that this was because of PID9. PID 9 was not a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 71 above we were satisfied that the reason for this decision was clear, and it was not connected to any protected disclosure. This complaint is dismissed Issue 5.6.16 - Failing to follow the Respondent’s policies in respect of grievances.

[208]C alleges that this was because of PID1, PID4, PID7 and/or PID8. None of these alleged disclosures was found to be a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 72, this complaint is not well founded. This complaint is dismissed Issue 5.6.17 Failing to follow the National guidance regarding complaints against Responsible Officers in respect of the Claimant.

[209]C contends that this was because of PID9. PID 9 was not a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 73 above the complaint is not well founded and is dismissed. Issue 5.6.18 - Failing to follow the Respondent’s and NHS FTSU policy.

[210]C contends that this was because of PID1, PID4, PID7 and/or PID8. None of these alleged disclosures was found to be a protected disclosure and therefore this complaint must fail. Again, we repeat our reasons as are set out at paragraphs 75 to 78 as to why this is not well founded. This Issue 5.6.19 - Failing to attempt to resolve the issue informally, specifically but

[211]C contends that this was because of PID1, PID4, PID7 and/or PID8. None of these alleged disclosures was found to be a protected disclosure and in addition the reasons set out at paragraph 79 are repeated and therefore this complaint must fail. This complaint is dismissed Issue 5.6.20 - Failing to follow National Guardian Office (NGO) Guidance on

[212]C contends that this was because of PID1, PID2, PID3, PID4, PID5 and/or PID6. As we found that PID 5 and PID 6 we protected disclosures, we have gone on to consider whether the detrimental treatment was made out and then if it was, whether this was done because C had made protected disclosures in relation to PID5 or PID6, considering whether any of the protected disclosures were consciously or unconsciously more than trivial reason or ground for the decision. Firstly, for the same reasons as are set out at paragraph 81 above, we are unconvinced that this is actually detrimental treatment at all. However, if it was detrimental treatment of C, we concluded that it was not because (in the sense of being more than a trivial reason because) of either PID5 or PID6. MF did not initially inform AG because she believed she was on holiday and appeared to be unaware of the NGO guidance at the time in relation to AG acting to take the lead to ensure that sufficient attempts had been made to resolve the matter informally. It was JV who appointed SG as the initial commissioning manager of the FTSU investigation (see paragraph 35.119) and his explanation as to why this was done was entirely convincing and reasonable. It was not put to either MF or JV that not involving AG in this matter was connected to C having made protected disclosures when he raised concerns to MF in the second part of his letter on 9 January 2023 or when he complained to AG about the handling of an abuse allegation on 16 January 2023. Their denials went unchallenged, and C has produced no evidence to suggest a connection or causative element here at all. What was done in relation to the involvement of AG was not connected to any protected disclosure and this complaint is dismissed. Issue 5.6.21- Appointing an individual who was not impartial to consider the Claimant’s DAW complaints.

[213]C contends that this was because of PID2, PID3, PID4, and/or PID5. PID 5 was a protected disclosure, so we have gone on to consider whether the detrimental treatment was made out and then if it was, whether this was done because C had made protected disclosures in relation to PID5, considering whether any this was consciously or unconsciously more than trivial reason or ground for the decision. We repeat our reasons at paragraph 84 above on the issue of impartiality more generally but again refer to our findings of fact at paragraph 35.119 where we accepted JV’s explanation that he appointed SG because she was due to her availability to carry out the role (during a holiday period when many of the NEDs were away) and the fact that she chaired the People committee and so had experience. C did not put to JV the allegation that his decision to appoint SG was influenced in any way or connected to the fact that C had raised matters in an earlier complaint about R's response to violence and aggression on the wards and nursing recruitment. His denial of a connection was not challenged and in reality, it is hard to see how there could be such a connection. These matters were raised many months before any of the issues around the investigation arose and were entirely unrelated or connected. It is simply not feasible that JV was influenced in his decision to appoint SG to something raised about patient issues in an entirely different context, much earlier. This was not detrimental treatment on the grounds of having made a protected disclosure and this complaint is Issue 5.6.22- Appointing an individual who was not impartial to manage the complainants made against the Claimant. The individual was the Chair’s mentee, SG.

[214]Whilst this allegation relates to the appointment of SG as commissioning manager of the FTSU complaints and not the DAW complaints, for the same reasons as are set out at paragraph 212 above in relation to the allegation at issue 5.6.21, this complaint is dismissed. Issue 5.6.23 -The Chair persisting in appointing SG in relation to matters pertaining to the Claimant’s employment despite the Claimant’s representations

[215]C says this was because of PID3, PID4, PID5 5 and/or PID10. This complaint is connected to those made at issues 5.6.21 and 5.6.22 but also extends to the continuation of the appointment of SG following objections being raised by C (see paragraphs 35.121-2; 35.1.23.3-4; 35.125-6 and 35.129-30). However, for the same reasons as are set out at paragraph 212 above, this complaint is dismissed. There is no connection between the appointment and continuation of appointment of SG and earlier concerns raised by C about patient safety etc. This was never put to R’s witnesses and there is really no evidence upon which we can find any connection at all. This complaint of protected disclosure detriment is dismissed. Issue 5.6.24 The requirement that the Claimant has to report to the interim CMO, initially a cardiologist and subsequently a DCMO from another trust seconded to the interim CMO role, every week about his clinical work.

[216]C contends that this was because of PID9. This was not a protected disclosure and for this reason alone, this complaint is dismissed. Issue 5.6.25 - Failing to progress the Claimant’s DAW complaints.

[217]C contends that this was because of PID9 and/or PID10. Neither of these alleged disclosures was found to be a protected disclosure and therefore this complaint must fail. Moreover, for similar reasons as are set out at paragraph 88 above where we concluded that there was in fact no such failure, this complaint is dismissed Issue 5.6.26 Commencing an MHPS investigation.

[218]C contends that this was because of PID9. PID 9 was not a protected disclosure and therefore this complaint must fail. In addition, for similar reasons as are set out at paragraph 64 and 65 above, we were satisfied that the reason for this decision was not connected to any protected disclosures but was because R was informed of external complaints by NHSE; instructed by NHSE to set up a LDMG to consider whether an investigation was required (which it did) and then put into effect the decision made by that LDMG that a formal investigation under the MHPS was required. This complaint is dismissed Issue 5.6.27 Notifying the Claimant of “New Concerns” on 20th December 2023.

[219]C contends that this was because of PID9. PID 9 was not a protected disclosure and therefore this complaint must fail and for similar reasons as are set out at paragraph 91, we were satisfied with the explanation as to why this occurred. C has not put to any witness or provided any other evidence that this was connected to any disclosure in any event. This complaint is dismissed Issue 5.6.28 Setting vague, non-specific and personal Terms of Reference for

[220]C contends that this was because of PID9. PID 9 was not a protected disclosure and therefore this complaint fails. Moreover, for similar reasons as are set out at paragraph 93 we were satisfied that the issue of confidentiality/anonymity meant that at this initial stage, R did not include any specifics of complaints. This is the reason why the TOR were vague and non-specific. There was no connection to a protected disclosure. This Issue 1 - Jurisdiction

[221]As none of the complaints for protected disclosure detriment have succeeded, we do not need to go on to consider the issues set out in section 48 (3) ERA as to whether any such act or failure is part of a series of similar acts or failures or whether it was not reasonably practicable for the claim to have been brought within 3 months of the last of those acts. All the claims failed, having been considered fully on their merits. approved on : 10 December 2025